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41–330 2008

VOTER REGISTRATION AND LIST MAINTENANCE 

(CONTINUED) 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ELECTIONS 

COMMITTEE ON HOUSE 

ADMINISTRATION 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

HELD IN WASHINGTON, DC, NOVEMBER 16, 2007 

Printed for the use of the 

Committee on House Administration 

( 

Available on the Internet: 

http://www.gpoaccess.gov/congress/house/administration/index.html 


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(II) 

COMMITTEE ON HOUSE ADMINISTRATION 

ROBERT A. BRADY, Pennsylvania, Chairman 

ZOE LOFGREN, California 

Vice-Chairwoman 

MICHAEL E. CAPUANO, Massachusetts 

CHARLES A. GONZALEZ, Texas 

SUSAN A. DAVIS, California 

ARTUR DAVIS, Alabama 

VERNON J. EHLERS, Michigan 

Ranking Minority Member 

DANIEL E. LUNGREN, California 

KEVIN MCCARTHY, California 

S. ELIZABETH BIRNBAUM, Staff Director 

WILLIAM PLASTER, Minority Staff Director 

SUBCOMMITTEE ON ELECTIONS

ZOE LOFGREN, California, Chairwoman 

CHARLES A. GONZALEZ, Texas 

SUSAN A. DAVIS, California 

ARTUR DAVIS, Alabama 

KEVIN MCCARTHY, California 

VERNON J. EHLERS, Michigan 


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VOTER REGISTRATION AND LIST 

MAINTENANCE (CONTINUED) 

FRIDAY, NOVEMBER 16, 2007 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON ELECTIONS, COMMITTEE ON HOUSE ADMINISTRATION, Washington, DC. 

The subcommittee met, pursuant to call, at 10 a.m., in room 

1310, Longworth House Office Building, Hon. Zoe Lofgren (chairwoman of the subcommittee) Presiding. 

Present: Representatives Lofgren and McCarthy. 

Staff Present: Liz Birnbaum, Staff Director; Thomas Hicks, Senior Election Counsel; Matt Pinkus, Professional Staff/Parliamentarian; Kyle Anderson, Press Director; Kristin McCowan, Chief 

Legislative Clerk; Daniel Favarulo, Staff Assistant, Elections; Matthew DeFreitas, Staff Assistant; Gineen Beach, Minority Election 

Counsel; Roman Buhler, Minority Election Counsel; Bryan T. Dorsey, Minority Professional Staff; and Salley Collins, Minority Press 

Secretary. 

Ms. LOFGREN. The subcommittee will come to order. 

This is the continuation of the Voter Registration and List Maintenance hearing. We have two panels today, and I will begin by 

asking the first panel to come forward—Mr. Leiendecker, Mr. 

O’Neal, Mr. Bell, Ms. Mitchell—and I will introduce them. 

Mr. Leiendecker is the Republican director of the St. Louis Board 

of Election Commissioners. The Board is responsible for the planning and the administration of elections within the jurisdiction of 

the city of St. Louis, Missouri. It is also responsible for the voter 

registration records of more than 200,000 citizens registered to vote 

in the city of St. Louis and the processing of all petitions within 

the jurisdiction. Prior to joining the St. Louis City Board of Elections, Mr. Leiendecker was the chief of staff for Missouri State Senator Bill Alter. He also served as the special election investigator 

for former Secretary of State Matt Blunt, now the Governor of Missouri. 

Edward O’Neal is with us. Mr. O’Neal previously served as both 

the chair and the vice chair of the Norfolk Electoral Board. We look 

forward to his testimony and his experiences in administering elections in Virginia. 

Mr. Bell, Charles Bell, is a partner at Bell, McAndrews & 

Hiltachk, LLP, where he practices both political and election law. 

Mr. Bell also serves as general counsel to the California Republican 

Party. He was the first vice president of the Republican National 

Lawyers Association and vice chairman of the Federalist Society 


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Free Speech and Election Law Practice Group. Prior to his private 

practice work, Mr. Bell served as a consultant to the American Bar 

Association’s Committee on Election Laws, was an advisor to the 

California Election Law Recodification Project and was counsel in 

the Office of General Counsel at the Federal Communications Commission. 

Finally, we have with us Ms. Cleta Mitchell, who is a partner in 

Foley and Lardner’s Washington, D.C., office, and she is a member 

of the firm’s public affairs practice. Ms. Mitchell advises corporations, nonprofit organizations, candidates, campaigns and individuals on State and Federal election campaign finance law and compliance issues related to lobbying, ethics and financial disclosure. 

Prior to her work at Foley and Lardner, Ms. Mitchell served as a 

member of the Oklahoma House of Representatives for 8 years, as 

well as practiced litigation in administrative law in Oklahoma City. 

Your full written statements will be made part of the record of 

this hearing. At this time, we would ask each of you to deliver testimony in 5 minutes’ time, summarizing your written testimony. 

That little machine on the table will tell you how the time is 

being managed. When the yellow light goes on, it means that 4 

minutes have been taken. When the red light goes on, it means 

your time is up, and we would ask, at that point, if you could summarize so that we can hear from all of the witnesses. 

With that, we would like to hear from you first, Mr. Leiendecker, 

and we will go right down the row. 

STATEMENTS OF MR. SCOTT LEIENDECKER, REPUBLICAN DIRECTOR OF ELECTIONS, ST. LOUIS BOARD OF ELECTIONS; 

MR. EDWARD O’NEAL, FORMER MEMBER, NORFOLK ELECTORAL BOARD; MR. CHARLES H. BELL, JR., ATTORNEY, 

BELL, MCANDREWS & HILTACHK, LLP; MS. CLETA MITCHELL, ELECTION ATTORNEY, FOLEY AND LARDNER, LLP 

STATEMENT OF SCOTT LEIENDECKER 

Mr. LEIENDECKER. Thank you, Madam Chairman, for having me. 

It is an honor to be here in front of you today, representing the St. 

Louis City Board of Elections. 

What I would like to talk to you about is—this has always been 

an ongoing problem at the City Board of Elections, the registration, 

getting people up to date and active with our rolls. 

In 2000—I don’t know if you are familiar with some of the problems that we ran into at that time. I wasn’t involved at the St. 

Louis City Board of Elections, but we were that close to being another Florida. There were a lot of problems. What ultimately happened was St. Louis City was ultimately sued, and a consent decree was put in place for us to follow. 

A lot of positive things came out of that. We had an inactive list 

that, you know, was taken statewide by then-Secretary of State 

Matt Blunt, and that is one of the positive things that has come 

out of the consent decree. Another thing that we have done that 

I think—I don’t know if other election authorities do it across the 

country. I know that, in Missouri, there are a few who do it. We 

do it. I know St. Louis County doesn’t do it. But we have cell 

phones in the polling place, which really helps out with commuVerDate Aug 31 2005 00:42 Apr 23, 2008 Jkt 041330 PO 00000 Frm 00004 Fmt 6633 Sfmt 6633 E:\HR\OC\A330.XXX A330

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nication between the judges and back here at the home base for the 

Board of Elections. 

How we keep our rolls cleaned, I want to talk to you about our 

canvas that we do that is mandated by State law. What we do is 

we send out a first mailing. It is not forwarded. When that first 

mailing comes back, then we send a second mailing. With that second mailing, when that comes back, they put the individual on 

what is called the ‘‘inactive list,’’ what I just talked about. The inactive list is in effect for two Federal elections and, at that time, 

an individual can be removed. 

I want to talk to you about problems that we have faced in the 

past, what I call—it is an umbrella of different election fraud. A 

lot of people think that fraud is people going into the polling places, 

stuffing ballot boxes and committing fraud on Election Day. There 

is more to it than that. One thing that, you know, is a problem is 

registration fraud, petition fraud and, ultimately, voting fraud, 

which it could ultimately lead up to. Those are some things that 

we have dealt with in the past. 

I want to talk to you about this last election. In 2006, we had 

many problems with an organization called ACORN that did a lot 

of petitions—or some registrations. There were over 5,000 that 

came into St. Louis, about 15,000 that came into Kansas City. The 

disserving thing that happened was that—what they were doing 

was they were basically transferring registrations, people who did 

not know it, from one address to another. We saw that immediately. We took action immediately. We found that maybe there 

were thousands of individuals who had transferred their registrations. In Kansas City, it is, like I said, 15,000. I cannot speak for 

them, but it is a problem that could have created an enormous 

problem in the 2006 election. 

That is a concern for this upcoming presidential election. I am 

concerned about it. I think other jurisdictions, especially in Missouri, are concerned about it—St. Louis County, Kansas City. We 

actually meet now on a monthly basis to talk more about some 

issues like this and how we can better manage issues that come up 

like that. 

Another problem that we face is petition fraud. We have recalls 

that happen in St. Louis quite a bit, not the type that happen in 

California but on a smaller, you know, field—aldermen. We have 

got one currently facing our mayor that they are trying to get. 

What happens is these individuals do a two-step process. It 

makes it easier for them to get these names on the petition. They 

fill out the registration cards there, and then they sign the names. 

What happens is, when we send a letter to confirm if that individual is an actual person—we call them ‘‘ghost voters,’’ in a 

sense—then what happens is that letter comes back to us. Then we 

can——

Ms. LOFGREN. Your time has expired. 

Mr. LEIENDECKER. Oh, sorry. 

Ms. LOFGREN. I don’t want to cut you off in mid-sentence. 

Mr. LEIENDECKER. I am sure there will be questions. 

[The statement of Mr. Leiendecker follows:] 


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Ms. LOFGREN. Oh, all right then. 

Mr. O’Neal. 

Mr. LEIENDECKER. Thank you. 

STATEMENT OF EDWARD O’NEAL 

Mr. O’NEAL. Thank you, Madam Chairman. 

An essential part of the foundation of our republic is the opportunity for all qualified citizens to elect their representatives 

through a secret ballot. In order to ensure that only qualified persons vote, election officials must maintain an accurate database. 

And that requires the positive identification of potential voters at 

the time of registration as well as at the polls. Illegal votes dilute 

the legitimate votes of all voters, regardless of political persuasion. 

The National Voter Registration Act has made it easier to register, but unfortunately, it has also made it easier to do so without 

adequate identification. In simpler times, citizens voted close to 

their homes, with their neighbors manning the polls. It was readily 

apparent when an interloper attempted to vote. In our mobile society, this is no longer true. Positive identification is absolutely necessary to protect the votes of legitimate voters. 

Previous testimony a couple of weeks ago suggested that, just as 

there is a presumption of innocence in criminal cases, applications 

for registration to vote should also be presumed legitimate and that 

efforts to prove otherwise should be limited. I do not agree. Let us 

look for a minute at the potential consequences of not investigating 

questionable applications. 

In 2005, the city of Norfolk experienced a massive surge of applications, the vast majority of which were submitted by third-party 

organizations, one of which was Project ACORN. Of some 5,000 applications presented, many were questionable. Some were simply 

mistakes on the part of the applicant, but approximately 1,000 of 

those 5,000 had to be denied because of serious flaws. Of those denied, 213 applications contained Social Security numbers which the 

Social Security Administration confirmed did not belong to the 

named applicants. Some of those numbers had belonged to deceased persons. 

761 felons denied having been convicted of a felony. The Commonwealth of Virginia keeps a special database of all felons whose 

rights have been restored, and none of those had completed a 

much-simplified process for restoration. Parenthetically, a previous 

witness here stated that her State keeps no list of felons. I don’t 

understand how she manages to keep felons off of the rolls without 

such a list. 

Signatures on some applications did not match signatures already on file or on applications subsequently received from those 

persons. An employee of one of the third-party organizations admitted to having completed 14 applications where she obtained the 

names and addresses from a local telephone book. Apparently, 

there are few, if any, attempts by employees of these third-party 

organizations to determine whether the applicants are entitled to 

be registered. 

The NVRA, as an attempt to increase voter registration, had 

mandated Government agencies, other than dedicated voter registration offices, to offer applications to prospective voters. While 


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these agencies act in good faith, their employees have other primary responsibilities and, subsequently, do not always perceive 

problems with the applications submitted. Applications received 

from these agencies have a high rate of error. 

Further, our experience is that some persons who have registered 

at places like the DMV never intended to register and frequently 

do not vote. 

As you can see, regardless of good intentions, there are forces at 

work which have the potential to degrade the integrity of our voter 

registration rolls. Investigating questionable applications is tedious 

and expensive yet critical. The provision of the Help America Vote 

Act, which requires Statewide registration systems, is a very positive step. However, as a high-turnout presidential election approaches, there is growing concern about the ability of registrars to 

maintain database integrity, partially due to questionable tactics 

on the part of these third-party organizations. The legal process 

against registration fraud moves slowly and is difficult to prosecute 

because of the necessity to prove that fraudulent action was willful. 

The future of our Nation and of our form of government hinges 

on our system of elections. To summarize, we need to make major 

improvements in our voting system to include: one, requiring that 

voter registration be conducted in person before registrars whose 

first duty is voter registration; two, requiring positive identification 

at registration as well as at the polls; three, permitting registrars 

to remove ‘‘deadwood,’’ so-called, from the rolls in a more expeditious manner; and four, ensuring that the public understands that 

the purpose of the provisional ballot is to compensate for administrative errors and to further ensure that voting officials count those 

ballots when appropriate. 

[The statement of Mr. O’Neal follows:] 


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Ms. LOFGREN. Thank you, Mr. O’Neal, for your testimony. 

Mr. Bell. 

STATEMENT OF CHARLES BELL 

Mr. BELL. Thank you, Chairwoman Lofgren, for the opportunity 

to testify before the committee on the subject of voter registration 

and list maintenance. This is a critical subject for the future of 

American elections because the integrity of the voter registration 

list is essential to the integrity of the entire election process. 

This subject needs to be considered in light of two concerns: voter 

fraud and voter participation. Voter participation is the lifeblood of 

the American election process, and we should ensure that every eligible voter is able to cast his or her ballot. And interference with 

the right of any eligible voter to exercise the franchise must not be 

tolerated, but at the same time, we must view any effort to cast 

or to facilitate the casting of illegal votes with equal concern, because each illegal vote cancels a legal one. 

There are some who allege that voter fraud is not a serious problem in the American election process, and I would disagree with 

that. Documented cases of organized voter fraud in Miami, Philadelphia, East Chicago, Compton, Orange County and Fresno in our 

own State demonstrate this, and we cannot take the integrity of 

elections for granted. 

When the names of ineligible voters appear on the rolls, they create an opportunity and even an invitation for fraud, something that 

Secretary Bowen has commented about—the opportunity for fraud 

being a reason for more careful consideration of electronic voting 

systems. 

HAVA took some important steps toward improving the quality 

of voter registration lists and in ensuring that voter rolls are clean 

and accurate, but more needs to be done. 

I would suggest that Congress look especially at two key areas: 

first, the restrictions that NVRA imposes on States that want to 

promptly remove ineligible voters from the rolls and, second, the 

loopholes in both HAVA and NVRA that make it too easy for illegal 

aliens and other noncitizens to register. 

With regard to NVRA, I would urge Congress to remove the unwise restrictions imposed by the law which make it extraordinarily 

difficult to remove voters who have failed to vote in two or more 

Federal elections and who have not responded to numerous inquiries from election officials, allowing States with proper notice to remove such voters who have not voted or who have not responded 

to notices in 4 years, covering two Federal elections. It would remove a dangerous potential source of deadwood from the voter 

rolls. 

With regard to voting by illegal aliens, there are also a couple 

of common-sense reforms. First, State agencies should be able to 

ask applicants for services if those applicants are citizens before offering them a voter registration card. NVRA now prohibits agencies 

from doing this. HAVA ought to be strengthened to make it absolutely clear that, when voters register, they must answer ‘‘yes’’ to 

the citizenship question. Any doubt about a nonresponsive answer 

with nothing filled in should not be resolved in favor of a voter who 

has signed a registration affidavit without answering that question. 


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Now, these are just a few of the examples of things that I think 

can be done to improve the quality of voter lists. The integrity of 

the election process is at stake, and I would hope there would be 

some bipartisan agreement on the importance of these essential 

things: keeping the voter rolls free of illegal aliens and the names 

of those who are no longer legally registered to vote. 

Thank you. 

[The statement of Mr. Bell follows:] 


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Ms. LOFGREN. Thank you very much for your testimony. 

We will close this panel with Ms. Mitchell’s testimony. 

STATEMENT OF CLETA MITCHELL 

Ms. MITCHELL. Thank you, Madam Chairman. I am pleased to be 

here and to have the opportunity to speak to you today. 

I would open with one very basic question. Why do some people 

in organizations in this country so resent and so forcefully object 

to efforts to ensure the integrity of our voting procedures? 

Ensuring our voting systems are secure and that only legally eligible voters cast ballots and that every legally cast ballot is counted 

to the highest degree of certainty and accuracy is the goal of every 

Republican organization and conservative group that I work with— every candidate, in every conversation. I have never been in a conversation with any Republican attorneys or candidates or campaign 

operatives who ever said, ‘‘Let’s figure out how to keep minorities 

from voting.’’ It simply does not happen. 

Our goal is to ensure that our voting systems are secure, that 

only legally eligible voters cast ballots and that every legally cast 

ballot is counted. But there is an industry that has arisen in this 

country over the past decade which is determined to convince all 

of us that there is no voter fraud. So, if there is no voter fraud, 

then, of course, we have to make sure that there are no protections 

in place, and we have to make sure that there are no observers and 

no safeguards, because if there is no voter fraud, then we do not 

need all of these things, right? 

Well, personally, I am tired of the professional vote-fraud-deniers 

industry that has arisen, because their view is: There is no vote 

fraud; therefore, anybody who says there is vote fraud and who 

tries to take steps to protect against it must be, of course, a racist. 

I am not a racist. I am not out here to talk about protecting the 

integrity of the voting system because I am a racist. Because it 

simply is not true, nor is it true of all of the people who I work 

with, who are honorable people and who want to protect the integrity of the voting system. 

When they say there is no vote fraud, let me give you some examples. 

Headline, October 30, 2007, the Seattle Times: ‘‘three Plead 

Guilty in Fake Voter Scheme. The prosecutors in King County, 

Washington, are in the process of sending people to jail for what 

they call the most massive voter registration fraud scheme in King 

County history.’’

From the Monroe Free Press, Monroe, Louisiana, November 5th, 

just 2 weeks ago: ‘‘Were Votes Bought with Toilet Tissue and Vanilla Wafers? The Louisiana Ethics Commission is investigating allegations of vote buying, stemming from the Statewide elections 

held last month. The candidates were all African American.’’

I talked to my daughter this morning, who graduated from the 

University of Pennsylvania last May, and she reminded me when 

I told her what I was doing today that, a year ago this month, she 

had been an observer at a Philadelphia polling place. She was a 

volunteer Republican observer. They sent her to a largely Hispanic 

minority voting place, not because the Republicans were racist but 

because my daughter is fluent in Spanish. 


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During the course of the time when she was there, she just rattled off the things she witnessed—people tampering with the voting 

machines, people who were not the election officials who were going 

behind and tampering with the voting machines after voting had 

begun, people distributing partisan literature inside the polling 

place. 

When she, as she was supposed to do, objected and told the election officials that they are not supposed to be here deliberating 

passing out this literature, she was told, ‘‘We don’t want any Republicans here in this precinct. We all vote Democratic in this precinct. So why don’t you just leave?’’ There were able-bodied people walking in, going directly to the 

disabled voting table, saying that they were disabled so that somebody could go with them into the polling place and could tell them 

how to vote. 

All of these things are not—people say, ‘‘Well, that is just anecdotal evidence.’’ Well, anecdotes of breaking the law are still instances of illegal voting activity. 

I could go on and on with instances of voting fraud, but what I 

am here today to ask is, why is it that we should have this debate 

about whether vote fraud exists? 

One of the things that I think I would most like to say, as a point 

of personal privilege, is that I have read the written testimony of 

one of the other witnesses. I want to personally go on record here 

today as saying that the efforts by this professional vote-frauddeniers industry to attack and to malign Commissioner Hans von 

Spakovsky, formerly of the Justice Department, now the Commissioner of the Federal Election Commission, I find to be outrageous. 

Hans von Spakovsky is an honorable, decent man, and the attacks 

on his integrity, the aspersions cast on his character by people with 

whom he disagrees philosophically should not be tolerated. 

During the Clinton administration, the Justice Department was ordered to pay over $4 million in attorney fees for groundless, baseless cases that had been brought by the Justice Department. Now, 

none of that has been discussed publicly. Hans von Spakovsky—

during the time when he was at the Justice Department, none of 

those kinds of cases were brought and did not happen. Well, his sin 

was to object to career people’s being able to bring cases based on 

their philosophy and not the law. 

Thank you. 

[The statement of Ms. Mitchell follows:] 


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Ms. LOFGREN. Thank you all for your testimony. 

Since this is the minority panel, I will turn now to our ranking 

member, Mr. McCarthy, for his 5 minutes of questions. 

Mr. MCCARTHY. Well, thank you, Madam Chair. 

I want to thank all of the witnesses on this panel and the next 

panel. 

Even though this is known as the minority witness day, I was 

happy to approve the other panel to come as well. This is what I 

believe it should be, and I know Madam Chair personally approved 

and changed the ratio on the last hearing. I want to thank you for 

that. 

If I could get to questions, Mr. Leiendecker, you had mentioned 

in your statement 1,500 voter registrations. You talked about an 

organization called ACORN. What followed through on that? Was 

there any prosecution? Was anybody found guilty? 

Mr. LEIENDECKER. I am guessing you are referring to 2003. 

Mr. MCCARTHY. Yes. 

Mr. LEIENDECKER. Is this the time? 

Mr. MCCARTHY. I think you said—yes. 

Mr. LEIENDECKER. There were two that I mentioned. One was in 

2003 that that happened, and the other one was just recently in 

the 2006 November election. 

In 2003, nothing at all happened to the individuals. There was 

an investigation. I was not there at the time, but I have talked 

with individuals in the office. What ultimately happened was the 

information was sent over to the prosecutor’s office, and the prosecutor’s office did not do anything. 

This last time in 2006, right before the November election, there 

was roughly 4,000 or 5,000 cards that we deemed as problems. 

What happened was the Justice Department came in and subpoenaed them and took them. It is, to my knowledge—and I talked 

with them about 2 weeks ago—that it is still under investigation, 

and we will be hearing something very shortly of indictments, I 

would say. 

Mr. MCCARTHY. So this is something that continues from election 

to election, where you are finding this fraud? 

Mr. LEIENDECKER. We have an ongoing problem. I don’t know 

how it is with other jurisdictions with this group, but, you know, 

it was very frustrating to me, because, right before the November 

election, we tried to right this wrong and make sure that, you 

know, as to everybody who may have slipped through the cracks, 

that they were going to get the right to vote. And everybody did 

get the right to vote. 

The problem that we ran into with them was that they started 

pointing the finger back at us and saying, ‘‘You guys are the problem. You are trying to just minimize individuals voting, and you 

are the problem,’’ basically. It was not true. 

After the November election, there was a Post-Dispatch article in 

which one of the heads of ACORN came in and said, ‘‘Well, maybe 

they were a little right on this.’’ They were not necessarily sorry, 

but they said that their organization in St. Louis was the worst 

that they have ever seen. 

Mr. MCCARTHY. Now, Mr. O’Neal, you talked about ACORN. You 

made some statement of 5,000 registrations, 1,000 of them seriVerDate Aug 31 2005 00:42 Apr 23, 2008 Jkt 041330 PO 00000 Frm 00058 Fmt 6633 Sfmt 6602 E:\HR\OC\A330.XXX A330

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ously flawed, that 213 had Social Security numbers that were not 

theirs; they were those of deceased people. 

So you are witnessing the same concern? 

Mr. O’NEAL. Yes, sir. 

Mr. MCCARTHY. Maybe you could elaborate on that, as well. 

Mr. O’NEAL. Well, what we experienced was, apparently, some 

task forces, some of which belonged to ACORN and some of which 

apparently were part of other organizations that came in and went 

to various places throughout the city, particularly to college campuses, and they attempted to register people to vote, but they did 

so without really checking to make sure that the people there signing up really were qualified to vote. 

We would contact, for instance, these felons, and the felons 

would say, ‘‘Well, they told us not to worry about checking that 

block; it didn’t matter.’’ Then, subsequently, somebody apparently 

went in and checked the block for them, saying they were not a 

felon. Well, of course, we caught up with that. We do look at these 

things very closely. 

Mr. MCCARTHY. Now, Mr. Bell, you brought up some—and I 

know your background personally. We have a personal relationship. I know we have talked about races and seeing problems 

throughout. We know personal witnesses have seen problems 

through there. 

Could you talk about ways in which we might be able to change 

this in a bipartisan manner, about the citizen box not even being 

checked? Why would somebody not check whether they were a citizen or not if they were? 

Mr. BELL. Well, there is not a lot of evidence on that, court cases 

or testimony, of people who failed to check the box. I believe, during the Dornan-Sanchez investigation, there was a pretty thorough 

investigation of a number of votes that were illegally cast in that 

congressional race. 

Mr. MCCARTHY. I think that number was in the 600s, was it not? 

Mr. BELL. Well, I think it was in the low thousands of people 

who—650 were identified as actually being illegal, noncitizens, who 

voted in that election. Over 1,000 were people who did not check 

the box on their voter registration affidavits. 

Mr. MCCARTHY. Now, you say one thing that maybe we can do— and maybe we can do this, Madam Chair, in a bipartisan manner. 

If we just made everybody answer that question, that could clean 

up a lot within the rolls. 

Maybe if I could just quickly go down the line, because my time 

is up. Would you agree with that, if we just made everybody answer the question of whether they are a citizen or not? 

Mr. BELL. I think it is very important. 

Mr. MCCARTHY. Could I ask each witness really quickly if they 

agree with that? 

Ms. LOFGREN. The gentleman is given an additional minute so 

that the witnesses can answer. 

Mr. MCCARTHY. Thank you. 

Ms. MITCHELL. Well, I do not want the Federal Government to 

take over the decisions about voter registration any more than they 

already have. I think every State should require that that be done, 

yes. 


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Mr. MCCARTHY. Mr. O’Neal. 

Mr. O’NEAL. Yes, I agree completely that that would help. 

Mr. LEIENDECKER. I would agree. 

Mr. MCCARTHY. Thank you very much, Madam Chair. 

Ms. LOFGREN. The gentleman’s time has expired. 

I, without objection, will enter into the record a letter that has 

been provided to the committee from the Secretary of State’s office 

in Missouri to you, Mr. Leiendecker, and to Mary Wheeler-Jones, 

dated October 30, 2006. 

[The information follows:] 


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Ms. LOFGREN. I would just simply note that this letter from 

Betsy Byers and Kay Dinolfo, who were co-directors of elections, 

points out that the steps that you outlined in your letter are additional registration requirements in violation of Missouri law. And 

they cite the section of the Constitution and also indicate that your 

actions may also have been in violation of Federal election laws. 

That goes into the record. 

At this point, we would thank the panel for their——

Mr. LEIENDECKER. May I respond to that? 

Ms. LOFGREN. No. You had 5 minutes of testimony. She is responding to your testimony, and we are just putting it in the 

record, and people will sort it out. 

Well, now, I thank these witnesses, and I will ask the next panel 

to come forward. 

As the witnesses are coming forward, I will introduce them. 

We have Joseph Rich. Mr. Rich is the director of Fair Housing 

and Community Development, the Lawyers’ Committee for Civil 

Rights Under Law. Before joining the Lawyers’ Committee in 2005, 

Mr. Rich spent his career in the Department of Justice’s Civil 

Rights Division, where he litigated and supervised civil rights 

cases. In addition, from 1999 to 2005, Mr. Rich served as the chief 

of the Voting Section, where, in 2004, he directed and coordinated 

the most extensive election monitoring program in the history of 

the Civil Rights Division, involving coverage of 86 jurisdictions and 

election monitoring by over 1,000 Federal employees. Mr. Rich received his J.D. degree cum laude from the University of Michigan 

Law School and his bachelor’s in history from Yale. 

Next, we have Gerald Hebert. For the past 10 years, Mr. Hebert 

has had an active Federal court litigation practice, specializing in 

redistricting and in voter rights issues. Over the last 3 decades, he 

has served as legal counsel for parties and amici curiae in numerous redistricting lawsuits, including several cases decided in the 

Supreme Court of the United States. Prior to his time in solo private practice, Mr. Hebert served in the Department of Justice from 

1973 to 1994 in many supervisory capacities, including acting chief, 

deputy chief and special litigation counsel in the Voting Section of 

the Civil Rights Division. 

Finally, we have Elizabeth Westfall. Ms. Westfall is the senior 

attorney and deputy director of The Advancement Project’s Voter 

Protection Program. In this capacity, Ms. Westfall litigates voting 

rights cases on behalf of voter registration organizations and individual voters. She also engages in advocacy with election officials 

on various voter registration and other election administration 

issues. Ms. Westfall joined The Advancement Project after serving 

as a civil rights litigator in private practice and with the Washington Lawyers’ Committee for Civil Rights and Urban Affairs. She 

received her law degree from Harvard Law School and her undergraduate degree from Carleton College. 

We do thank you for being with us this morning. 

We will start with you. 

I think you heard the instructions with the first panel. Your entire statements will be made part of the official record. We do ask 

that your testimony consume 5 minutes. And when your 5 minutes 


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are up, the red light will be on, and we will ask you to complete 

your sentence so we can hear the next witness. 

We will start with you, Mr. Rich. 

STATEMENTS OF MR. JOSEPH RICH, FORMER CHIEF, DEPARTMENT OF JUSTICE VOTING RIGHTS SECTION; MR. J. GERALD 

HEBERT, FORMER ACTING CHIEF, DEPUTY CHIEF AND SPECIAL LITIGATION COUNSEL, DEPARTMENT OF JUSTICE VOTING RIGHTS SECTION; MS. ELIZABETH WESTFALL, DEPUTY 

DIRECTOR OF VOTER PROTECTION, THE ADVANCEMENT 

PROJECT 

STATEMENT OF JOSEPH RICH 

Mr. RICH. Thank you very much, Madam Chairman. 

I was asked to address the issue of vote caging, and I very much 

appreciate the opportunity to state my views on this subject. 

Vote caging is defined in various ways, but the one I am using 

is in a ballot security report from 2004, which states ‘‘challenging 

voters using inaccurate, unofficial lists of registrants derived from 

do-not-forward letters sent to low-income and minority neighborhoods.’’ And these are letters that are not sent by election officials. 

These are letters that are sent by organizations or party organizations. Targeted at traditionally disenfranchised voters, this practice 

relies on voter challenge laws to indiscriminately question the ability of eligible voters to cast a ballot. 

While purported to be designed to fight voter fraud, caging is 

really a quite cynical way to undermine the most fundamental 

right of all Americans for partisan gain. The reason it really cannot 

be justified as a fight against voter fraud is it is targeted. The lists 

are targeted at predominantly minority areas. These activities have 

the effect of discouraging voters who are challenged, as the challenge process is cumbersome and time-consuming. They also may 

cause delays in lines, further lowering the number of persons who 

vote. 

And, of course, especially alarming is the targeting of minority 

voters. Indeed, in 2004, one State representative in Michigan was 

quoted as saying, ‘‘If we do not suppress the Detroit vote,’’ which 

was over 80 percent African American, ‘‘we are going to have a 

tough time in this election.’’ My written testimony focuses on the increased uses of this technique in recent years, which is well-documented in four studies 

that I discuss in the written testimony. The practice has grown significantly in recent years. Just a few weeks ago, the registration 

eligibility of over 900 students at Georgia Southern University was 

challenged by local residents in Georgia—Statesboro, Georgia. Despite a requirement under Georgia law that required personal 

knowledge in order to file a challenge, each of the forms used in 

this challenge were identical, save for the name of the challenged 

voters. The Voting Rights Project at the Lawyers’ Committee investigated and monitored the situation closely. Just a few days ago, 

the challenges were dropped under threat of litigation from the 

Lawyers’ Committee. 

Many vote caging incidents came to the Voting Section’s attention when I was chief of the section in 2004. They included threatVerDate Aug 31 2005 00:42 Apr 23, 2008 Jkt 041330 PO 00000 Frm 00063 Fmt 6633 Sfmt 6602 E:\HR\OC\A330.XXX A330

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ened challenges to voters at predominantly African American precincts in Duval County and Louisville, Kentucky, and to Hispanic 

voters in Alamance County, North Carolina, Atkinson and Long 

Counties, Georgia. In each instance, they were investigated, and 

monitors were present at the polls on Election Day. The challenge 

plans were successfully addressed because the schemes had been 

made public, and the Department of Justice as well as other interested national groups took strong, responsive action. 

However, with respect to the most extensive voter caging program in 2004 in Ohio, the Department’s response was limited and 

appeared to be politically tinged. According to a Project Vote report, there were over 232,000 letters sent to newly registered voters by the Republican Party and around 30,000 returned as undeliverable. Lists of returned mail to election officials were used to 

supplement the list, and in the end, there were over 35,000 voters 

on these lists. 

Extensive litigation resulted from this. In one of the vote caging 

cases, Spencer v. Blackwell in Ohio, the case was brought just before the election. The Democratic Party sought to enjoin any new 

challenges of voters in Hamilton County. The court found that the 

challenges would be of 97 percent of African American voters, 

newly registered voters, while only 14 percent of new voters in 

white precincts would face a challenge. This is the court’s finding. 

In other words, it was the classic and especially extensive vote caging scheme targeted at minority voters. 

The United States was not a party to this case, but nonetheless, 

it took the unusual step of sending the court a letter right before 

the hearing of October 29th, a letter drafted and submitted to the 

court by the political appointees in the division, with no knowledge, 

much less any input, from the Voting Section career staff. 

Ms. LOFGREN. Mr. Rich, your time has expired, so if you could 

conclude. 

Mr. RICH. Okay. I will just finish up on this particular incident. 

Although the case raised serious claims of race discrimination, 

the letter by the then-Assistant Attorney General inexplicably did 

not address race, and urged that the challenges be permitted. 

[The statement of Mr. Rich follows:] 


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Ms. LOFGREN. Thank you. 

Mr. Hebert. 

STATEMENT OF GERALD HEBERT 

Mr. HEBERT. Thank you, Madam Chairman. I would like to 

thank Mr. McCarthy for permitting us to testify as well, so thank 

you both. 

My name is Gerald Hebert. I am the executive director of the 

Campaign Legal Center. I am also the director of litigation there. 

I am here to talk about a couple of issues today. I would like to 

talk about the voter fraud statements that were made in the earlier panel and respond to some of that. I would also like to make 

a point about the Ohio situation that Mr. Rich just described, because the Ohio defense of vote caging by the Justice Department 

was not only unprecedented, it was actually contrary to the position that the Justice Department took a decade earlier when I was 

there. 

We actually filed a lawsuit against the Jesse Helms for Senate 

Reelection Committee, which engaged in a similar kind of voter intimidation effort, but the Justice Department under this administration did not do so. In fact, they came to the defense of vote caging, as Mr. Rich just pointed out. They were led by attorney Hans 

von Spakovsky, whose name came up earlier today, and by Brad 

Schlozman, who has now resigned from the Justice Department. 

They are men who have been called in front of Congress to testify 

about partisanship and law enforcement in the Justice Department, which is continuing there and needs to be cleaned up by the 

new Attorney General. 

It is, I think, fair to say, in responding to Ms. Mitchell in particular, that it is not just Gerry Hebert who is complaining about 

Mr. von Spakovsky’s record of suppressing minority votes. It is 

Senator Obama, who has written a letter; it is the civil rights community that has written letters, and even Mr. Rich and other 

former career Justice Department officials. 

I want to talk briefly about the voter fraud issue. You know, you 

hear a lot of repeated references to this so-called ‘‘epidemic’’ of 

voter fraud. Some, like Mr. O’Neal, for example, propose that there 

should be photo IDs mandated for everybody so that, you know, we 

can stamp out this epidemic. But photo IDs only address a single 

type of alleged voter fraud, the impersonation of a registered voter 

at the polls. It does not address the more common types of voter 

fraud such as voting by absentee ballot or vote buying, nor does it 

address the voting by ineligible persons with felony convictions or 

double voting at two different addresses, which can only be addressed through the updating of a voter registration list. In my 

view, the effective maintenance of voter registration lists by the 

States are the best means of combating this problem. 

And I would note that the most comprehensive study done on 

this subject, by Professors Minnite and Callahan, indicates that 

this alleged epidemic of voter fraud is not an epidemic at all. In 

fact, instances of in-person voter fraud are rare, indeed. 

You may know that there is a case pending in the Supreme 

Court right now involving a challenge to Indiana’s voter ID law. 

Now, voter IDs are supposed to stop the impersonation of people 


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at the polls according to the State of Indiana. Well, how many people have actually been prosecuted for in-person voting fraud in the 

State of Indiana that justifies this photo ID? The answer is zero. 

A study that has been done shows that the people who lack IDs 

are particularly the elderly and the young and the low-income and 

the poor. 

So what is outrageous—Ms. Mitchell, in her comments, said it 

was outrageous to criticize people who suppress the minority vote. 

What is really outrageous is apologists for people who do suppress 

minority voting rights in this country. 

Now, finally, a word on the NVRA, since I have a minute and 

a half left. I would like to just make a couple of points about the 

DOJ. The Justice Department has unfortunately used the National 

Voter Registration Act as a partisan tool rather than as a legitimate law enforcement tool to get people registered to vote. That 

was the purpose of the NVRA, the so-called ‘‘Motor Voter Bill.’’ Instead of actually pursuing cases in States for failing to register people at public assistance agencies, they instead have gone and taken 

that part of the law that requires people to purge voters. And 

under von Spakovsky, Schlozman and others, that was their priority. 

Mr. Rich has submitted a statement to the Senate detailing this 

issue regarding von Spakovsky’s actually not permitting the Justice 

Department to really investigate claims that people’s voting rights 

are being suppressed and that States are not following through on 

their NVRA obligations. Instead, von Spakovsky treated his office 

more like the Republican National Committee’s General Counsel’s 

Office and only enforced the law when it saw fit to advance partisan gains. 

Now, oversight hearings like this are really critical, though, and 

I just want to close with this point, because what they really do— when you shine a spotlight on the Justice Department, it sometimes forces them to act, and I think it is starting to make a break 

in their politicization. For example, they just sent letters to 18 

States, they say, on this issue of public assistance agencies not registering people to vote, and that is a good thing. If there is one 

thing we can all agree on, it is that the voting rights of all Americans, especially those who are poor and of low income, deserve vigorous protection. 

Thank you very much. 

[The statement of Mr. Hebert follows:] 


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Ms. LOFGREN. Thank you, Mr. Hebert, for your testimony. Ms. 

Westfall, we will close with you. 

STATEMENT OF ELIZABETH WESTFALL 

Ms. WESTFALL. Thank you. On behalf of The Advancement 

Project, I would like to thank you, Chairwoman Lofgren and Mr. 

McCarthy, for inviting me to testify today. 

I would like to follow up on the remarks of one of my co-panelists 

concerning voter caging and Advancement Project’s involvement in 

litigation in 2004 in Ohio, concerning voter caging. 

As well, if I have time, I would like to respond to some of the 

comments of Mr. O’Neal concerning the matching of an applicant’s 

information on his or her application with information in the Social 

Security Administration’s database, which is riddled with errors. 

In the months leading up to the 2004 presidential election, voter 

protection advocates, including The Advancement Project, became 

concerned that a large-scale effort would be undertaken to challenge the eligibility of African American and Latino voters. Advocates’ fears were realized in Ohio, among other States, when, in October, the Ohio Republican Party compiled a list of 35,000 newly 

registered Ohio voters through voter caging and filed challenges 

against those voter registrations. Local election officials told our 

voter protection partners in Ohio that these challenges were overwhelming and could cause chaos at the polls and could disenfranchise thousands of voters on Election Day. 

Four days before the 2004 presidential election, The Advancement Project filed a motion to intervene and to reopen a case styled 

‘‘DNC v. RNC’’ on behalf of an Ohio voter named Ebony Malone. 

Ms. Malone was a newly registered African American citizen of 

Cleveland who was on the list of voters to be challenged by the 

Ohio Republican Party. The DNC v. RNC case had been filed in 

1981 in Federal court in New Jersey to challenge the RNC’s voter 

caging in that State. 

The case resulted in a consent decree that requires the RNC nationwide to refrain from engaging in so-called ‘‘ballot security activities’’ where the racial composition of the polling place or election 

district is at issue and is a factor in the decision to conduct such 

activities. In 1987, the consent decree was modified based on further voter caging that the RNC had employed in Louisiana to require the RNC to obtain prior approval from the court of all ballot 

security efforts. 

In 2004, the district court in the DNC case granted Ms. Malone’s, 

our client’s, motion to intervene. On November 1st, one day before 

the election, it found the RNC had violated the consent decree and 

that it had, in fact, been involved in and connected to and had coordinated, in part, the Ohio caging activities. Further, the court ordered the RNC to refrain from using its compiled list of voters to 

challenge those voters on Election Day. Although the Court of Appeals granted the RNC’s motion to stay, that order was not issued 

until late in the day on Election Day, so the district court’s ruling, 

in addition to rulings in other cases, contributed to the absence of 

challenges in Ohio on Election Day. Ms. Malone, I am happy to report, successfully cast her ballot without being challenged. 


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The Advancement Project recommends that Congress enact legislation to prohibit voter caging and voter challenges by private citizens outright. At a minimum, Congress should enact legislation 

that prohibits challenges to a person’s eligibility to register to vote 

or to cast a ballot based solely on returned mail or a caging list. 

Further, it should require that challengers base their challenges on 

personal knowledge, and they should set forth specific grounds for 

their purported ineligibility under penalty of perjury. Finally, Congress should prohibit partisan poll watchers from challenging voters at the polls on Election Day. 

With my remaining time, I would like to respond to the comments of Mr. O’Neal, that there were applicants who submitted applications in Norfolk, Virginia, in 2005 that did not match the Social Security database. I would like to bring to the subcommittee’s 

attention that the Social Security database is riddled with errors, 

and for any number of reasons, information that an applicant puts 

on an application may not match data in the Social Security Administration. It may be wholly unrelated to their eligibility. Advancement Project and the Brennan Center and other counsel are 

involved in litigation against the Secretary of State of Florida for 

refusing to register applicants for that reason. 

For example, typos can be made from entering that person’s data 

into a Statewide database. Women may use their married names 

instead of their maiden names, which are listed in the Social Security database. And of course, hyphenated names and the use of 

double names by Latino applicants, in particular, can cause 

mismatches with the database. 

We have found in discovery in that case that this rule, Florida’s 

statute, disproportionately impacts African Americans, who often 

have nontraditional spellings of common names, as well as Latino 

voters. 

[The statement of Ms. Westfall follows:] 


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Ms. LOFGREN. Thank you for that testimony. 

And thanks to all of the witnesses for your testimony. 

Mr. McCarthy, would you like to proceed? 

Mr. MCCARTHY. No. Go ahead. 

Ms. LOFGREN. Okay. Fine. I will go first. 

I would like to talk about the 1981 Federal ruling—I guess it is 

a consent decree—that prohibits the Republican National Committee from engaging in racially based caging activity. That ruling 

does not apply to State parties. So, in order to get this law enforced, you would have to prove a connection between the RNC and 

the State parties. 

Is that not correct, Ms. Westfall? 

Ms. WESTFALL. That is correct. That is a position—the RNC is 

the one that is bound by——

Ms. LOFGREN. Do you think there is a need to expand that ruling 

to State parties? 

Ms. WESTFALL. Certainly. The State parties are not parties to 

the consent decree, so you do, as a plaintiff, need to establish a connection and a role that the RNC has played in the caging if you 

are to apply that case to the activities of the State parties. That 

is correct. 

Ms. LOFGREN. I just want to note that, in addition to serving on 

the House Administration Committee, I serve on the House Judiciary Committee. Earlier this year, we had Ms. Monica Goodling appear as a witness before the committee. During the course of that 

testimony, she talked about vote caging and the activities of various lawyers in the Justice Department, but not on company time, 

to engage in the vote caging of African American voters. I mean, 

I remember sitting there, receiving this testimony, and asking 

other members of the committee, ‘‘What is ‘vote caging?’ ’’ none of 

us knew, and none of the staff knew. I mean, it was a new concept 

to me. 

Would it be true that it would include activities, for example, Mr. 

Hebert, where you would send, for example, a registered letter 

where you would have to sign to get your letter, and then if it got 

returned, you would use that as a basis for challenging a voter? 

Mr. HEBERT. That is typically the way it works. You send out 

nonforwardable mail, and then, from the letters that come back, 

you compile a list. 

Ms. LOFGREN. So if you were at work and you were not there to 

sign—I mean, lots of times people don’t go down to the post office. 

They just aren’t there to sign it, and they don’t fill it out. They 

don’t know what it is, and they didn’t sign—you know, there is 

nothing coming from Amazon that they want. And so you could end 

up with people who are perfectly legitimate, and you could come to 

a wrong conclusion on the basis of that, could you not? 

Mr. HEBERT. You could. The reason that it is most offensive, I 

think, is because, first of all, you are targeting a particular racial 

or ethnic group with your letters. That is problem number one. 

Problem number two we saw, for example, in Jacksonville, Florida. A lot of the people who did not have forwardable mail were 

people who were overseas, fighting for the freedom of our country, 

and so their mail was not forwarded to them. So, you know, to disenfranchise somebody who is putting their life on the line every 


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day in the name of vote caging to suppress somebody’s voting 

rights I think is un-American, frankly. 

Ms. LOFGREN. Mr. Hebert, in looking at your bio, you joined the 

Department of Justice when Richard Nixon was President. 

Mr. HEBERT. That is correct. 

Ms. LOFGREN. You served under President Nixon, President 

Ford, President Carter, President Reagan, the first President Bush, 

President Clinton, and you are an observer of what is going on 

now. 

Have you seen anything like this in other administrations, where 

the Department of Justice has apparently proceeded on the basis 

of partisanship in election laws? 

Mr. HEBERT. No. In fact, I was proud during the Reagan years, 

in particular, when the civil rights organizations made a lot of criticisms about the Reagan administration’s lack of enforcement of 

civil rights. Even in all of those years, there was not a partisan 

tinge to our law enforcement from the highest levels on down, 

whether it was Ed Meese as Attorney General or William French 

Smith or Dick Thornburgh, any of those Republican Attorneys General. They never let, to my knowledge, partisanship be the guidepost. 

Ms. LOFGREN. I would ask you, Mr. Rich, you were a career person in the Department of Justice. Would you share Mr. Hebert’s 

view? 

Mr. RICH. Yes. I have testified and have spoken about this on 

several occasions. The difference between this administration and 

any other I served were the partisan factors that entered law enforcement decisions, which I had never seen before. I gave you an 

example in the Ohio case, which dealt with vote caging, but I have 

testified to several other examples that arose in, particularly, Section 5 decision-making in the Voting Section when I was there. 

Ms. LOFGREN. Well, I thank the witnesses for this testimony. 

And I will turn now to our ranking member, Mr. McCarthy, for 

his 5 minutes. 

Mr. MCCARTHY. Well, I want to thank the panel. I appreciate 

your coming. 

One thing I will tell you from both sides of the aisle is that we 

want to gather all of the information. If you have a different philosophical belief, that is fine, but the thing I believe is, regardless of 

whether you are a Republican or a Democratic, of the Green Party 

or are an independent, we want to make sure we have honest elections, fair elections. We want to make sure the voters have the 

right to vote. 

We have come a long way. We have absentee balloting. We have 

early voting. We have others. We know, as we move to that direction and make it easier for individuals to vote—and we watch these 

other countries where people will stand in line for hours and will 

walk to their polling places and will turn out in such greater numbers than Americans will do. We want to make sure, as you set this 

up and make it easier for people, that we keep them honest. 

I mean, I have had witnesses here who will tell me they disagree, and they will go through different things. The Secretary of 

State says we know we have fraud every time. We have Secretaries 

of State from small States who do not even ask for signatures when 


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they vote by absentee. They say, ‘‘Well, we trust everybody. We 

know everybody.’’ I think the one thing that binds us is our making sure that at 

the end of that Election Day that democracy worked, that we do 

not have fraud in the system, and that we allowed people to go to 

it as well. That is why I believe it is best to have these two panels. 

That is how I think Congress should work. That is how I think this 

committee should work. 

So I applaud you for coming, and I thank you for your testimony. 

Ms. LOFGREN. With that, we will note that we have 5 legislative 

days to ask additional questions. If questions are proposed, we will 

forward them to you. The Chair will forward them to you. We will 

ask that you respond as promptly as possible. And that would also 

be for the first panel of witnesses. 

We do thank you for your testimony. A lot of people do not realize that our witnesses are volunteers and that you come here to 

help share your insight with the committee to make a better country, and we do appreciate that. 

Mr. MCCARTHY. Madam Chair, if I may, I just have a letter I 

would like to submit here for the record. If I could ask for unanimous consent to have 5 days that members could submit additional——

Ms. LOFGREN. That is part of the rules. Without objection, the 

letter is made part of the record. 

[The information follows:] 


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Ms. LOFGREN. This hearing is adjourned. 

[Whereupon, at 10:58 a.m., the subcommittee was adjourned.] 


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