U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

43–798 2008

HEARING ON ELECTION CONTINGENCY PLANS: 

WHAT HAVE WE LEARNED AND IS AMERICA 

PREPARED? 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ELECTIONS 

COMMITTEE ON HOUSE 

ADMINISTRATION 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

HELD IN WASHINGTON, DC, MAY 14, 2008 

Printed for the use of the Committee on House Administration 

( 

Available on the Internet: 

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


jbell on PROD1PC69 with HEARING
(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 


jbell on PROD1PC69 with HEARING
(1) 

ELECTIONS CONTINGENCY PLANS: WHAT 

HAVE WE LEARNED AND IS AMERICA PREPARED? 

WEDNESDAY, MAY 14, 2008 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON ELECTIONS, 

COMMITTEE ON HOUSE ADMINISTRATION, 

Washington, D.C. 

The subcommittee met, pursuant to call, at 2:10 p.m., in room 

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

Present: Representatives Lofgren, Davis of Alabama and McCarthy. 

Staff Present: Thomas Hicks, Senior Election Counsel; Janelle 

Hu, Election Counsel; Jennifer Daehn, Election Counsel; Matt 

Pinkus, Professional Staff/Parliamentarian; Kyle Anderson, Press 

Director; Kristin McCowan, Chief Legislative Clerk; Daniel 

Favarulo, Legislative Assistant, Election; Gregory Abbott, Policy 

Analyst; Gineen Beach, Minority Election Counsel; Ashley Stow, 

Minority Election Counsel; and Bryan T. Dorsey, Minority Professional Staff. 

Ms. LOFGREN. Good afternoon and welcome to the Committee on 

House Administration’s Subcommittee on Elections and the hearing 

that we are having on Election Contingency Plans: What Have We 

Learned and is America Prepared. 

In the past several years, natural and manmade disasters have 

resulted in more attention being drawn to the need for election contingency planning. September 11, 2001, disrupted the statewide 

primary in a New York; Hurricane Katrina caused delays in administering a New Orleans local election; and, more recently, the 

February tornados which occurred on Super Tuesday posed a challenge. All of these events have brought to light the necessity of taking precautions and making preparations to manage emergency situations affecting the election system. 

There are States that have addressed, to some extent, Election 

Day emergencies. Generally, these policies deal with communications at the State level with the development of specific plans to 

be determined by counties and cities. While the 16 States that have 

taken these steps should be commended, it’s not enough. What role 

the Federal Government should play in assisting States and localities in planning for emergencies and recovering from these emergencies needs to be defined. 


jbell on PROD1PC69 with HEARING
2 

In an attempt to help clarify the role of the Federal Government 

in assisting States and localities, the Federal Emergency Management Agency was invited to testify today, but they declined, stating 

that it, ‘‘does not have any statutory role in preparing for and carrying out elections.’’ I disagree. FEMA does have a role under Section 406 of the Stafford Act to assist State and local governments 

for the replacement or repair of equipment and structures damaged 

by a major disaster. 406 also includes wages and eligible work 

which FEMA defines as work necessary as a result of a disaster 

within the disaster area and the legal responsibility of the applicant. This definition clearly would include election costs. In fact, 

FEMA has already acted in this capacity. FEMA approved $7.9 

million to assist the New York Board of Elections to cover expenses 

associated with canceling and rescheduling the statewide primary 

elections of September 11, 2001. It also provided reimbursement for 

election expenses in Florida incurred as a result of Hurricane Andrew in 1992. 

Former Louisiana Secretary of State Ater was invited to testify 

about his experiences with elections as a result of Hurricanes 

Katrina and Rita and attempts made by Louisiana and Mississippi 

for reimbursement for election expenses and other issues but, unfortunately, had to cancel his appearance due to a scheduling conflict. His testimony will be submitted for the record. 

For these hurricanes, FEMA took the position that it was not required under 406 to provide reimbursement for election expenses 

related operating costs provided the minimal assistance for damaged equipment was the issue. This has been a complete change of 

FEMA’s past position regarding requests for election assistance, so 

I plan on pursuing this matter further with FEMA to make sure 

that Federal Emergency Management Agency does what it needs 

to do to assist States and localities just as it has done in the past. 

I thank all the witnesses who have accepted the invitation to testify before the Subcommittee today. I look forward to their testimony as we explore what State and local governments have done 

to prepare for an emergency on Election Day and what role the 

Federal Government should play in preparing and responding to 

such an emergency. 

[The statement of Ms. Lofgren follows. Additionally, a declination 

letter from FEMA follows.] 


jbell on PROD1PC69 with HEARING
3 


jbell on PROD1PC69 with HEARINGInsert offset folio 8 here 43798A.001
4 


jbell on PROD1PC69 with HEARINGInsert offset folio 9 here 43798A.002
5 


jbell on PROD1PC69 with HEARINGInsert offset folio 10 here 43798A.003
6 

Ms. LOFGREN. Since we will be having another series of votes in 

about an hour, in the interest of time I will ask other members to 

submit opening statements for the record; and we will go directly 

to our witnesses. 

I would like to introduce Mr. Thomas Wilkey. He is the Former 

Executive Director of the New York Board of Elections and since 

2005 has served as the Executive Director of the Elections Assistance Commission. Prior to his work with the EAC, Mr. Wilkey was 

also a founder and former president of the National Association of 

State Election Directors and a member of the Election Centers 

Board of Directors. 

Next, we have Ms. Laurel Beatty. Ms. Beatty is the Director of 

Legislative Affairs for the Office of the Ohio Secretary of State. In 

this capacity, Ms. Beatty serves as liaison to Ohio’s legislative process and represents the Secretary of State with the Ohio General 

Assembly and 88 County Boards of Election. Prior to her work with 

the Secretary of State’s Office, Ms. Beatty worked as a litigation 

lawyer at Frost, Brown and Todd, as well as Kegler, Brown, Hill 

and Ritter. Ms. Beatty received her BS from Spellman College and 

her JD at Vanderbilt University; and we are pleased to have her 

here because her Secretary of State is receiving the Profiles in 

Courage Award today, which is really quite an achievement. 

Finally, we have Ms. Dawn Roberts, who currently serves as the 

Assistant Secretary of State of the Florida Department of State. 

Ms. Roberts has been with the Department of State for 5 years, 

where she also served as the Director of the Division of Elections 

as well as general counsel. Prior to her work with the Department 

of State, Ms. Roberts was also staff director of the Florida House 

of Representatives Committee on Election Reform, as well as Florida’s Senate Judiciary Committee. Ms. Roberts received her BA 

from Converse College and her JD from Florida State University. 

We welcome all of you, and thank you for your participation 

today. 

Without objection, your full statements will be made part of the 

record; and we would ask that you provide your oral testimony in 

about 5 minutes. When there is 1 minute to go, if the machine is 

working, there will be a yellow light telling you that you need to 

start wrapping up. 

STATEMENTS OF THOMAS WILKEY, FORMER EXECUTIVE DIRECTOR, NEW YORK BOARD OF ELECTIONS; LAUREL 

BEATTY, DIRECTOR OF LEGISLATIVE AFFAIRS, OFFICE OF 

THE OHIO SECRETARY OF STATE; AND DAWN K. ROBERTS, 

ASSISTANT SECRETARY OF STATE, FLORIDA DEPARTMENT 

OF STATE 

Ms. LOFGREN. So if we could start with you, Mr. Wilkey. Thank 

you so much for being here. 

STATEMENT OF THOMAS WILKEY 

Mr. WILKEY. Good afternoon, Chairwoman Lofgren, Ranking 

Member McCarthy, Congressman Davis. Thank you for the opportunity to testify before the Subcommittee today. 

In my 40 years administering elections, I never would have conceived of facing an Election Day disaster as horrific as the one on 


jbell on PROD1PC69 with HEARING
7 

September 11, 2001. Early that primary day morning, before the 

polls opened at 6:00 a.m., I made my customary rounds of polling 

sites in midtown Manhattan. As Executive Director of the New 

York State Board of Elections, I knew the importance of being prepared for anything on Election Day. But this experience taught me 

even more about being prepared for the worst and how Federal, 

State and local government can act together to prepare and, if need 

be, respond to an emergency, whether it be a terrorist act or a natural disaster on Election Day. 

Even though September 11th was a primary day in New York, 

I am proud to say that everyone worked together to hold the elections just 2 weeks later. This was a magnificent feat, given the devastation that we had witnessed throughout the city. 

We were able to do this because of emergency planning, communication and coordination among Federal, State and local officials. 

We were able to communicate with polling places quickly in New 

York City because, as is customary, a police officer is on duty in 

every polling place throughout the city. Through the officers, we 

were able to communicate directly all the needs of the Governor’s 

executive order and the administrative judge’s—11th Judicial District Judge’s oral order that the election be suspended or cancelled 

and that poll workers should pack up all supplies and vacate the 

premises immediately. 

Our poll list printing facility was destroyed in that attack. Fortunately, our management information systems department had a 

backup copy stored at a secure remote facility. We were quickly 

able to reduce all the poll books, some 5,000 of them, and have 

them ready for the primary that took place, the rerun primary, less 

than two weeks later. 

The State government also acted quickly. Within two weeks of 

the attack—within two days of the attack, the legislature passed 

and the Governor signed the Emergency Primary Rescheduling Act 

of 2001 which provided legal authority to reschedule the primary 

less than two weeks later. 

The Board personnel in New York City moved 7,700 voting machines to their warehouses for reprogramming in time for the next 

election, working with local officials of the School Board and Police 

Department to have access to cordoned-off areas of the city. Lower 

Manhattan was virtually closed in frozen zone below 14th Street, 

where the Board’s general offices was located, for at least two 

weeks. 

The Board placed public notices announcing the rescheduled primary date, times and polling place locations to make sure voters 

knew where to go. On Election Day—on election night, rather, we 

tallied the votes the old-fashioned way. They were delivered to the 

local police precincts and then hand-delivered to the central tally 

center at police headquarters. 

Lots of things can go wrong on Election Day and often do. This 

is why it’s so important to anticipate every possible scenario so voters can participate. Of course, I don’t think anyone could have prepared for September 11th, but the contingency planning we already 

had in place was the reason we were able to reschedule the primary so quickly. 


jbell on PROD1PC69 with HEARING
8 

And since I have an extra minute I will add it was the 300 employees in the City Board of Elections and employees throughout 

the whole State of New York that really went to work and rolled 

up their sleeves. I am so proud to be associated with those people. 

They worked hard and got the job done in a very short period of 

time. 

We know turnout will be huge in November. We know Mother 

Nature could disrupt the process. The EAC, I am pleased to report, 

has issued tools that provide a framework for developing and implementing contingency plans; and if we continue to work together, 

Federal, State and local, we can be ready for anything this November. 

Thank you, Madam Chair. 

Ms. LOFGREN. Thank you very much, Mr. Wilkey. 

[The statement of Mr. Wilkey follows:] 


jbell on PROD1PC69 with HEARING
9 


jbell on PROD1PC69 with HEARINGInsert graphic folio 18 here 43798A.004
10 


jbell on PROD1PC69 with HEARINGInsert graphic folio 19 here 43798A.005
11 


jbell on PROD1PC69 with HEARINGInsert graphic folio 20 here 43798A.006
12 


jbell on PROD1PC69 with HEARINGInsert graphic folio 21 here 43798A.007
13 


jbell on PROD1PC69 with HEARINGInsert graphic folio 22 here 43798A.008
14 


jbell on PROD1PC69 with HEARINGInsert graphic folio 23 here 43798A.009
15 


jbell on PROD1PC69 with HEARINGInsert graphic folio 24 here 43798A.010
16 


jbell on PROD1PC69 with HEARINGInsert graphic folio 25 here 43798A.011
17 


jbell on PROD1PC69 with HEARINGInsert graphic folio 26 here 43798A.012
18 


jbell on PROD1PC69 with HEARINGInsert graphic folio 27 here 43798A.013
19 


jbell on PROD1PC69 with HEARINGInsert graphic folio 28 here 43798A.014
20 

Ms. LOFGREN. We would be pleased to hear from you, Ms. Beatty. 

STATEMENT OF LAUREL BEATTY 

Ms. BEATTY. Good afternoon, Chair Lofgren and distinguished 

members of the House Subcommittee on Elections. Thank you for 

the opportunity to offer testimony on Election Day contingency 

plans. 

I am Laurel Beatty, Director of Legislative Affairs and counsel 

to the Voting Rights Institute for Ohio Secretary of State Jennifer 

Brunner. 

The advent of electronic voting machines and the passage and 

the implementation of the Help America Vote Act drastically 

changed the landscape of election administration. How election administrators plan for emergency situations also changed with the 

adjustment to these innovations. Ohio currently uses optical scan 

and direct electronic recording voting machine technology and has 

found that careful planning and quick adjustments have enabled 

our election administrators using the equipment to protect against 

potential disasters. 

The March, 2008, primary election in Ohio is an example of prudent planning and quick on-the-spot thinking which helped our 

State carry out the election process. Leading up to that election, 

Secretary Brunner began making preparations by removing some 

of the impediments that plagued Ohio in previous elections. 

In September of 2007, Secretary Brunner commissioned a risk 

assessment study of the three voting machine systems used in Ohio 

known as Project Everest. The purpose of the study was to provide 

a comprehensive, independent, balanced and objective assessment 

of the risk to election integrity associated with Ohio’s voting systems. This also encompassed election-related equipment, testing 

standards and associated internal controls, including the extent to 

which integrity violations are possible, preventable, detectable and 

correctable. The results were crucial to evaluate the integrity of 

Ohio’s election systems before the March, 2008, primary election 

and for future elections. 

The Everest study contained scientific and industrial findings 

that Ohio’s voting system had significant problems. With these disturbing findings in hand before the March primary, Secretary 

Brunner embarked on a campaign to implement several initiatives 

that would give boards of elections the tools necessary to deal with 

an emergency situation should they arise and should funding not 

be available to replace voting machines. 

Secretary Brunner required Ohio county boards of elections to 

provide our office with security plans that detailed chain of custody 

procedures for electronic voting machines. County boards of elections used this mandate as an opportunity to assess the integrity 

of their processes in handling voting equipment. 

Secretary Brunner also required all county boards of elections 

that utilized touch screen voting machines as their primary voting 

systems to print back-up paper ballots in the amount of at least 10 

percent of the number of voters who voted in a similar, previous 

election. Secretary Brunner’s directive effectively accomplished its 

intended purpose. When machines were not working properly in 

several counties, voters were able to cast their votes on paper balVerDate Aug 31 2005 04:34 Aug 27, 2008 Jkt 043798 PO 00000 Frm 00022 Fmt 6633 Sfmt 6602 E:\HR\OC\A798.XXX A798

jbell on PROD1PC69 with HEARING
21 

lots. Voters also used the paper ballots to vote during power outages in an ice storm in several Ohio counties. 

Secretary Brunner also increased the legal staff, which paid off, 

as the office was able to field calls from county boards of elections 

continuously throughout the day and address legal concerns in 

real-time. All counties were instructed by directives to notify their 

assigned attorney in the office of machine failures or ballot shortages. Communications between county boards of elections and the 

Secretary of State’s Office were optimal. We worked with boards of 

elections developing contingency plans to use ballot-on-demand machines. We also established a well-devised partnership with the Attorney General’s Office, where several attorneys from that office 

were stationed in the field and were able to seamlessly obtain court 

orders when and where they were needed. 

The 16 regional liaisons in the office were also on site throughout 

the State at boards of elections; and, in one case, a regional liaison 

assisted in delivering provisional ballots to individual precincts 

when those ballots ran low. 

Secretary Brunner also alerted law enforcement throughout the 

State of its legal responsibilities in assisting election officials on 

Election Day, and county sheriffs in several counties provided great 

aid to the local boards of elections in assisting the transportation 

of ballots during a Level 3 weather emergency. 

The November, 2008, general election is approaching. With the 

Everest study in mind, Secretary Brunner will do everything within her power to ensure that Ohio is ready for the election in November. 

Thank you very much. 

Ms. LOFGREN. Thank you very much. 

[The statement of Ms. Beatty follows:] 


jbell on PROD1PC69 with HEARING
22 


jbell on PROD1PC69 with HEARINGInsert graphic folio 33 43798A.015
23 


jbell on PROD1PC69 with HEARINGInsert graphic folio 34 43798A.016
24 


jbell on PROD1PC69 with HEARINGInsert graphic folio 35 43798A.017
25 


jbell on PROD1PC69 with HEARINGInsert graphic folio 36 43798A.018
26 


jbell on PROD1PC69 with HEARINGInsert graphic folio 37 43798A.019
27 


jbell on PROD1PC69 with HEARINGInsert graphic folio 38 43798A.020
28 


jbell on PROD1PC69 with HEARINGInsert graphic folio 39 43798A.021
29 


jbell on PROD1PC69 with HEARINGInsert graphic folio 40 43798A.022
30 


jbell on PROD1PC69 with HEARINGInsert graphic folio 41 43798A.023
31 


jbell on PROD1PC69 with HEARINGInsert graphic folio 42 43798A.024
32 


jbell on PROD1PC69 with HEARINGInsert graphic folio 43 43798A.025
33 


jbell on PROD1PC69 with HEARINGInsert graphic folio 44 43798A.026
34 


jbell on PROD1PC69 with HEARINGInsert graphic folio 45 43798A.027
35 


jbell on PROD1PC69 with HEARINGInsert graphic folio 46 43798A.028
36 


jbell on PROD1PC69 with HEARINGInsert graphic folio 47 43798A.029
37 


jbell on PROD1PC69 with HEARINGInsert graphic folio 48 43798A.030
38 


jbell on PROD1PC69 with HEARINGInsert graphic folio 49 43798A.031
39 


jbell on PROD1PC69 with HEARINGInsert graphic folio 50 43798A.032
40 


jbell on PROD1PC69 with HEARINGInsert graphic folio 51 43798A.033
41 


jbell on PROD1PC69 with HEARINGInsert graphic folio 52 43798A.034
42 


jbell on PROD1PC69 with HEARINGInsert graphic folio 53 43798A.035
43 


jbell on PROD1PC69 with HEARINGInsert graphic folio 54 43798A.036
44 


jbell on PROD1PC69 with HEARINGInsert graphic folio 55 43798A.037
45 


jbell on PROD1PC69 with HEARINGInsert graphic folio 56 43798A.038
46 


jbell on PROD1PC69 with HEARINGInsert graphic folio 57 43798A.039
47 


jbell on PROD1PC69 with HEARINGInsert graphic folio 58 43798A.040
48 


jbell on PROD1PC69 with HEARINGInsert graphic folio 59 43798A.041
49 


jbell on PROD1PC69 with HEARINGInsert graphic folio 60 43798A.042
50 


jbell on PROD1PC69 with HEARINGInsert graphic folio 61 43798A.043
51 


jbell on PROD1PC69 with HEARINGInsert graphic folio 62 43798A.044
52 


jbell on PROD1PC69 with HEARINGInsert graphic folio 63 43798A.045
53 


jbell on PROD1PC69 with HEARINGInsert graphic folio 64 43798A.046
54 


jbell on PROD1PC69 with HEARINGInsert graphic folio 65 43798A.047
55 


jbell on PROD1PC69 with HEARINGInsert graphic folio 66 43798A.048
56 


jbell on PROD1PC69 with HEARINGInsert graphic folio 67 43798A.049
57 


jbell on PROD1PC69 with HEARINGInsert graphic folio 68 43798A.050
58 


jbell on PROD1PC69 with HEARINGInsert graphic folio 69 43798A.051
59 


jbell on PROD1PC69 with HEARINGInsert graphic folio 70 43798A.052
60 


jbell on PROD1PC69 with HEARINGInsert graphic folio 71 43798A.053
61 


jbell on PROD1PC69 with HEARINGInsert graphic folio 72 43798A.054
62 


jbell on PROD1PC69 with HEARINGInsert graphic folio 73 43798A.055
63 


jbell on PROD1PC69 with HEARINGInsert graphic folio 74 43798A.056
64 


jbell on PROD1PC69 with HEARINGInsert graphic folio 75 43798A.057
65 


jbell on PROD1PC69 with HEARINGInsert graphic folio 76 43798A.058
66 


jbell on PROD1PC69 with HEARINGInsert graphic folio 77 43798A.059
67 


jbell on PROD1PC69 with HEARINGInsert graphic folio 78 43798A.060
68 


jbell on PROD1PC69 with HEARINGInsert graphic folio 79 43798A.061
69 


jbell on PROD1PC69 with HEARINGInsert graphic folio 80 43798A.062
70 


jbell on PROD1PC69 with HEARINGInsert graphic folio 81 43798A.063
71 


jbell on PROD1PC69 with HEARINGInsert graphic folio 82 43798A.064
72 


jbell on PROD1PC69 with HEARINGInsert graphic folio 83 43798A.065
73 


jbell on PROD1PC69 with HEARINGInsert graphic folio 84 43798A.066
74 


jbell on PROD1PC69 with HEARINGInsert graphic folio 85 43798A.067
75 


jbell on PROD1PC69 with HEARINGInsert graphic folio 86 43798A.068
76 


jbell on PROD1PC69 with HEARINGInsert graphic folio 87 43798A.069
77 


jbell on PROD1PC69 with HEARINGInsert graphic folio 88 43798A.070
78 


jbell on PROD1PC69 with HEARINGInsert graphic folio 89 43798A.071
79 


jbell on PROD1PC69 with HEARINGInsert graphic folio 90 43798A.072
80 


jbell on PROD1PC69 with HEARINGInsert graphic folio 91 43798A.073
81 


jbell on PROD1PC69 with HEARINGInsert graphic folio 92 43798A.074
82 


jbell on PROD1PC69 with HEARINGInsert graphic folio 93 43798A.075
83 


jbell on PROD1PC69 with HEARINGInsert graphic folio 94 43798A.076
84 


jbell on PROD1PC69 with HEARINGInsert graphic folio 95 43798A.077
85 


jbell on PROD1PC69 with HEARINGInsert graphic folio 96 43798A.078
86 


jbell on PROD1PC69 with HEARINGInsert graphic folio 97 43798A.079
87 


jbell on PROD1PC69 with HEARINGInsert graphic folio 98 43798A.080
88 


jbell on PROD1PC69 with HEARINGInsert graphic folio 99 43798A.081
89 


jbell on PROD1PC69 with HEARINGInsert graphic folio 100 43798A.082
90 


jbell on PROD1PC69 with HEARINGInsert graphic folio 101 43798A.083
91 


jbell on PROD1PC69 with HEARINGInsert graphic folio 102 43798A.084
92 


jbell on PROD1PC69 with HEARINGInsert graphic folio 103 43798A.085
93 


jbell on PROD1PC69 with HEARINGInsert graphic folio 104 43798A.086
94 


jbell on PROD1PC69 with HEARINGInsert graphic folio 105 43798A.087
95 


jbell on PROD1PC69 with HEARINGInsert graphic folio 106 43798A.088
96 


jbell on PROD1PC69 with HEARINGInsert graphic folio 107 43798A.089
97 


jbell on PROD1PC69 with HEARINGInsert graphic folio 108 43798A.090
98 


jbell on PROD1PC69 with HEARINGInsert graphic folio 109 43798A.091
99 


jbell on PROD1PC69 with HEARINGInsert graphic folio 110 43798A.092
100 


jbell on PROD1PC69 with HEARINGInsert graphic folio 111 43798A.093
101 


jbell on PROD1PC69 with HEARINGInsert graphic folio 112 43798A.094
102 


jbell on PROD1PC69 with HEARINGInsert graphic folio 113 43798A.095
103 


jbell on PROD1PC69 with HEARINGInsert graphic folio 114 43798A.096
104 


jbell on PROD1PC69 with HEARINGInsert graphic folio 115 43798A.097
105 


jbell on PROD1PC69 with HEARINGInsert graphic folio 116 43798A.098
106 


jbell on PROD1PC69 with HEARINGInsert graphic folio 117 43798A.099
107 


jbell on PROD1PC69 with HEARINGInsert graphic folio 118 43798A.100
108 


jbell on PROD1PC69 with HEARINGInsert graphic folio 119 43798A.101
109 


jbell on PROD1PC69 with HEARINGInsert graphic folio 120 43798A.102
110 


jbell on PROD1PC69 with HEARINGInsert graphic folio 121 43798A.103
111 

Ms. LOFGREN. We turn now to our witness, Ms. Roberts. Welcome. 

STATEMENT OF DAWN K. ROBERTS 

Ms. ROBERTS. Thank you, Madam Chairwoman, distinguished 

members of the Subcommittee on Elections. 

My name is Dawn Roberts. I am the Assistant Secretary of State 

for Florida and the Chief of Staff to Secretary Kurt Browning. 

I have been asked to describe the contingency plans that were in 

place for the 2004 Presidential election prior to the landfall of Hurricane Charlie and what lessons we learned in Florida. I have also 

been asked to describe contingency plans that we have in place for 

our upcoming fall elections. 

We have had an Elections Emergency Act on the books in Florida 

since 1992. This Act authorizes the Governor to suspend, delay or 

reschedule an election. The goals of this Act are to maximize participation in the electoral process but at the same time to ensure 

the safety and welfare of our voters and our poll workers. It is to 

protect the integrity of the election and to provide for a safe and 

orderly procedure should an election have to be rescheduled. 

In response to the passage of that Act, the Division of Elections 

promulgated by rule in 1994 a comprehensive emergency suspension plan. This plan covers six broad areas with respect to election 

administration: notification procedures through PSAs; conduct of a 

rescheduled election with a focus on assessing polling places; temporary polling sites; consolidation of precincts; absentee voting, allowing for temporary absentee voting sites to be established; voting 

and tabulating equipment, ensuring that the supervisors of elections have the flexibility to borrow and lease equipment should 

there have been damage during the event; and also, safety of the 

existing polling places. Should equipment have already been deployed or ballot materials, there needs to be procedures in place to 

secure those sites to protect the integrity of the election. And, lastly, what do you do with the release and certification of results, especially if you’ve got races that have crossed jurisdictional boundaries? 

In 2004, Florida experienced four storms in 6 weeks. The first 

storm, Hurricane Charlie, hit Florida just 2 weeks before our primary. It could not have been without the extraordinary efforts at 

both the State and local level that we were able to actually keep 

to our elections schedule and hold an August 31st primary. 

What we learned is really what we summarize as the three P’s: 

poll workers, polling places and power restoration. Through our 

emergency operation center in Tallahassee, we were able to get together with those supervisors who were impacted by Hurricane 

Charlie and develop a contingency plan to go forward with the election as scheduled. 

Some of the lessons we learned: you have to think outside the 

box. Your first reaction may be to reschedule an election, but until 

you have done an assessment of your polling places, your poll workers, worked with your supervisors of elections, you don’t know for 

certain whether or not a rescheduling is absolutely necessary. 

We learned quickly that you have to have communication with 

the Department of Justice, especially if you are a pre-clearance 


jbell on PROD1PC69 with HEARING
112 

State, as we are in Florida. We have five counties subject to preclearance. So whenever you change polling sites, consolidate precincts, change any of the rules of the game, that has to be precleared through the Department of Justice; and they were very cooperative with us. 

Try not to duplicate your efforts, and what works in one emergency may not work the same in another. For example, in Hurricane Charlie, what worked did not work with Hurricane Ivan that 

hit the Panhandle. With Hurricane Ivan, they had more time to 

prepare and so they were actually able to handle a lot of their 

issues from the local level. But we—in our zeal to help them, 

stepped over some lines with respect to who was doing what with 

assessing the polling places. 

Having up-to-date phone trees cannot be understated. And if you 

don’t have a continuity of operations plan at the local level and you 

take it off the shelf once in a while and look at it and update it, 

there is nothing the State is going to really be able to do for you. 

Since then, we have established a regional response plan with 

our supervisors of elections to approach election contingency from 

a regional perspective. We also developed, for the Division of Elections particularly, their own continuity of operations plans. The supervisors of elections have entered into memorandums of understanding amongst themselves to actually put down on paper that 

they will assist one another in the event of an emergency. 

And, lastly, we have actually started looking at what we would 

do if there was a pandemic influenza situation with an election. 

I will be happy to answer any questions. 

Ms. LOFGREN. Thank you very much. 

[The statement of Ms. Roberts follows:] 


jbell on PROD1PC69 with HEARING
113 


jbell on PROD1PC69 with HEARINGInsert graphic folio 126 43798A.104
114 


jbell on PROD1PC69 with HEARINGInsert graphic folio 127 43798A.105
115 


jbell on PROD1PC69 with HEARINGInsert graphic folio 128 43798A.106
116 


jbell on PROD1PC69 with HEARINGInsert graphic folio 129 43798A.107
117 


jbell on PROD1PC69 with HEARINGInsert graphic folio 130 43798A.108
118 


jbell on PROD1PC69 with HEARINGInsert graphic folio 131 43798A.109
119 


jbell on PROD1PC69 with HEARINGInsert graphic folio 132 43798A.110
120 

Ms. LOFGREN. I think we will have a few questions. I would turn 

first to Mr. Davis for whatever questions he may have. 

Mr. DAVIS of Alabama. Thank you, Madam Chairwoman. 

Let me thank you all for being here. 

One of the things that the panel—or that the committee, rather, 

is obviously trying to assess is the feasibility or the advisability of 

any Federal law regarding Election Day disasters. I want to get 

some sense from all of you, first of all, under the statutory provisions in Florida and New York, I take it Ohio, Ms. Beatty, does not 

have a provision for suspending an election, is that right? 

Ms. BEATTY. No, it does not. 

Mr. DAVIS of Alabama. Florida and New York apparently do. 

So, Mr. Wilkey—well, let me just ask you with respect to New 

York City. Obviously, the election was postponed in New York City. 

Who made the decision to do that and how did that happen on 9/ 

11? 

Mr. WILKEY. Well, for clarification, in the primary election in 

New York we have two different polling hours. In the city of New 

York, the counties in Long Island and the immediate counties adjacent to New York—Westchester, Rockland, Orange, Ulster—the 

polls are open from 6:00 a.m. to 9:00 p.m., and in Erie County upstate in the Buffalo area. In the remainder of the State, the polls 

do not open until noon. They are open from noon to nine. This has 

been the way it has been since I have been in election, which is 

nearly 40 years. 

There was no provision for canceling an election in our law. 

There is provisions in the law for rerunning a primary or an election, or a primary particularly after the fact, depending on what 

happened that day. 

So two things really happened. In the city of New York, a judge 

had already been assigned by the administrative judge of the court 

system in New York to oversee any problems that came up on Election Day. There is a judge in every borough office who handles 

Election Day complaints, and the administrative judge of the 11th 

District was assigned on that day to handle problems. 

And so we immediately scrambled. I was on my way down to the 

general office, which was only three blocks from Ground Zero. It 

was virtually unaccessible. And so by phone we, the Board staff 

and their counsel, got an oral order from the judge canceling that 

election; and that order went out immediately. 

Mr. DAVIS of Alabama. So one judge has authority to cancel an 

election of an entire city? 

Mr. WILKEY. The order was taken under consideration; and I 

think within a couple of minutes, knowing what was going on then, 

he immediately suspended that election. 

Mr. DAVIS of Alabama. Ms. Roberts, let me ask you, who has the 

statutory authority in Florida to make the actual decision? 

Ms. ROBERTS. The Governor. The Secretary of State can request 

an extension or rescheduling, a supervisor of elections or a city 

clerk that is in charge of a municipal election. All of those entities, 

those individuals, can request that there be a delay, but only the 

Governor can make that decision. 

Mr. DAVIS of Alabama. And is the Governor somehow recused or 

precluded, if the Governor happens to be on the ballot? 


jbell on PROD1PC69 with HEARING
121 

Ms. ROBERTS. No, sir. 

Mr. DAVIS of Alabama. Is that a problem? 

Ms. ROBERTS. To be honest, I had not thought about that before. 

Potentially. 

Mr. DAVIS of Alabama. Let me just try to get some input from 

you with respect to what we might do as far as Federal law goes. 

There was some conversation a few years ago about Congress 

creating the authority to suspend an election; and, of course, all the 

obvious practical problems were raised. No one or at least a lot of 

people were not comfortable with the idea of the President of the 

United States having that authority. It is not necessarily feasible 

for Congress to have it, because there is the obvious conflict issue 

if Members of Congress are themselves on the ballot. Second of all, 

Congress might not be in session; and if Congress is not in session 

you wouldn’t have time to assemble people to make a decision in 

real-time. 

Can the three of you just—first of all, let me just ask you, do any 

of the three of you think that there should be a Federal law that 

in any way entails a suspension of a Federal election for President 

or Congress? Do any of you think that would be advisable? 

Mr. WILKEY. I can only tell you, based upon my past experience, 

that, as I indicated, in my State there was not a provision for anybody to cancel an election, including the Governor. The Governor 

used his executive power that day to basically do what had to be 

done. 

We still do not have a law on the books to do it, because the legislature and the Governor cannot agree on who would do it. Should 

the Governor do it? Should the State Board of elections do it? 

Should the courts intervene? And to this day we still don’t have a 

provision in law to do it. 

While I understand some of the statements that were made by 

the former chairman of my commission, I think it needs to be 

looked at very carefully. Because if an attack or problem happens 

on Election Day, as many people have noted elections are going to 

continue to go on. And really, you know, there is a long-held provision in our Constitution that the administration of elections is reserved to the State level. And so I think that the debate would 

have to be very carefully made in Congress to do that. 

But I know that, based on my own experience in New York, it 

needs to be addressed. It needs to be looked at. How it is done, I 

can’t make a suggestion. But I think that it does need to be addressed. But I do agree. 

I think one of the best statements I have read on that issue was 

by your Senator, Madam Chair, Senator Feinstein, who made the 

comment, you know, we are having elections all over the country. 

If we have a situation, it is likely to be only in one area of the 

country and why suspend voting for the rest of the country. And 

I think that is a very good observation. 

But that doesn’t mean that we shouldn’t have some discussion 

about it, and that is why today I continue to be saddened that we 

still don’t have that provision in our State law. I think it needs to 

be done, and somebody needs to be responsible for it. 

Ms. LOFGREN. If I may, one possibility—I mean, I am not necessarily proposing this, but where States have adopted a statutory 


jbell on PROD1PC69 with HEARING
122 

scheme, they are ahead of the game. Florida has. Some other 

States have. California I don’t think has. I remember the Loma 

Prieta earthquake. There was an election in San Francisco, and it 

was not really possible to have the election. 

So it seems to me that one opportunity would be to have some 

statutory scheme, but that if a State has adopted its own that you 

would not preempt that scheme. So at least there is some statutory 

authority not for the whole county but for Federal elections where 

it is impossible to actually hold the election because buildings have 

fallen down or whatever. So that if there is an earthquake in 

southern California it shouldn’t disrupt the election in Alabama. 

But there needs to be some ability to respond to the fact that people can’t drive down the road because the freeways have collapsed, 

for example. 

That is just a thought that occurred to me. 

The gentleman’s time has expired. 

I have my 5 minutes, so I will be very—I don’t know if I will use 

the entire 5 minutes. 

But one of the questions I had—and I understand, Mr. Wilkey, 

that you had back-up voter registration information in a different 

location; and it seems to me that that is a very smart thing to do, 

number one, and something that I don’t know whether—I honestly 

don’t know whether my county has done that or whether my State 

has done it. I wonder if Florida and Ohio have back-ups at remote 

locations, and if so where and how do you do that. 

Ms. ROBERTS. I can speak for Florida. With the advent of the 

Help America Vote Act, a requirement to have a single, statewide, 

computerized voter registration database—we call ours the Florida 

Voter Registration System. We actually have a hot site that is our 

back-up from the State perspective. But we have also allowed when 

we designed our system that our 67 counties still were able to 

maintain their own voter registration system, and it interfaces with 

the State system, so we do have multiple back-ups. 

Ms. BEATTY. Ohio also has multiple back-ups. The counties keep 

the voter registration information on a county level and transfer it 

to the Secretary of State’s Office, and the Secretary of State also 

backs that up through the State of Ohio computer center. 

Ms. LOFGREN. The final question I wanted to ask—well, actually, 

two. As we saw with Hurricane Katrina and in some cases these 

terrible hurricanes and tornados that have occurred, disasters can 

result in displacement for residents that last for a long time. How 

do you approach displaced residents that still have an intent to reside—they are still registered to vote. How do you maintain your 

contact with your citizens who have been displaced but intend to 

rebuild their lives after a disaster as voters? 

Ms. ROBERTS. In Florida, in 2004, when Hurricane Charlie hit, 

it was a concentrated impact. It didn’t have large displacement of 

our citizens, and we were able to maintain contact and provide 

them with information with public service announcements. We actually chartered a plane and flew a banner across that region with 

the 1–800 phone number. We passed out palm cards in areas where 

they were passing out ice and water and so forth, giving the voters 

information. 


jbell on PROD1PC69 with HEARING
123 

But certainly, I mean, you are very correct, that if you have a 

large displacement of your population, as with Hurricane Katrina, 

then that’s going to require a whole different assessment and set 

of circumstances. 

Ms. BEATTY. Congresswoman, I would echo Ms. Roberts’ sentiments. The weather emergencies that took place in Ohio did not 

displace anyone. However, it did spur a lot of interest in the possibility of a vote-by-mail system in Ohio. 

Ms. LOFGREN. Interesting. 

Let me ask just a final question. Because, as you might have noticed from my opening statement, I am a little bit miffed at FEMA 

who no longer thinks that they have a role in emergency management or reimbursing States and localities. Have you successfully 

obtained reimbursement for your emergency expenses related to 

elections efforts you have engaged in because of emergencies? 

Ms. ROBERTS. I can speak for 2004 that indeed we had a great 

deal of cooperation with FEMA. And every time we had to put 

something in the tracking system we had an accounting afterwards, and our accounting office worked very closely with FEMA 

to get reimbursement. 

Ms. LOFGREN. That is good. 

Ms. BEATTY. Thankfully, that was not applicable in Ohio. 

Ms. LOFGREN. And I know in New York you did get reimbursed. 

Mr. WILKEY. Yes, we did get reimbursed; and they were very, 

very helpful to us. I mean, we needed to be able to get in our office 

building, which was virtually inaccessible in lower Manhattan; and 

we were able to get on the list to get the power that we needed 

and get up and running. And so we were very—they were very cooperative in that area, and they did reimburse us for a large number of the expenses. 

Ms. LOFGREN. That is good news, and that is what we want to 

get them back to. 

So, with that, I am going to thank all of you for your testimony. 

We will keep the record open for 5 legislative days. If there are additional questions, we will forward them to you. And if that happens we ask that you respond as quickly as possible so answers 

could be made part of the written record. And we do thank you 

very much. 

And we will ask our next panel to come forward. 

As the next panel is coming forward, I will introduce them, since 

I believe we will have votes in about 10 minutes. 

Commissioner Rosemary Rodriguez currently serves as Chair of 

the Election Assistance Commission. She was appointed in 2007 

and served as Vice Chair of the Commission during her first term. 

Prior to work with the EAC, Ms. Rodriguez was President of the 

Denver City Council, Director of Boards and Commissions for the 

Mayor’s Office and a Clerk and Recorder of Denver for 5 years. 

And we also have Mr. Kevin Kennedy. He is the Director of the 

Wisconsin Government Accountability Board, which administers 

and enforces State laws relating to elections, campaign finance, 

ethics and lobbying. Mr. Kennedy has worked in election administration for over 25 years, serving as counsel and executive director 

of the Wisconsin State Board of Elections. He is a former president 

of the National Association of State Election Directors and a memVerDate Aug 31 2005 04:34 Aug 27, 2008 Jkt 043798 PO 00000 Frm 00125 Fmt 6633 Sfmt 6602 E:\HR\OC\A798.XXX A798

jbell on PROD1PC69 with HEARING
124 

ber of the EAC Standards Board. Mr. Kennedy received his BA and 

JD from the University of Wisconsin at Madison. 

We welcome you both; and, as you know, your full statements 

will be made part of the official record. We ask that you summarize 

them in about 5 minutes. 

STATEMENTS OF THE HONORABLE ROSEMARY RODRIGUEZ, 

CHAIRWOMAN, U.S. ELECTION ASSISTANCE COMMISSION; 

AND KEVIN J. KENNEDY, DIRECTOR, WISCONSIN GOVERNMENT ACCOUNTABILITY BOARD 

Mr. LOFGREN. We will begin with you, Chair Rodriguez. 

STATEMENT OF ROSEMARY RODRIGUEZ 

Ms. RODRIGUEZ. Thank you, Madam Chairman and Honorable 

Davis. Thank you for the opportunity for the Election Assistance 

Commission to be here today. 

What have we learned in elections in the United States? That 

anything can happen on Election Day and that we have to be prepared. 

You also asked, is America prepared? And we at the Election Assistance Commission are hopeful that they are prepared, and we 

have issued guidance, and I will discuss that a little bit in my testimony. 

But what we know already is that contingency planning in 2008 

is more important than ever. We have seen record registration and 

interest in this election and turnout in the primaries. In most 

cases, election officials were ready. When tornados hit Tennessee 

and heavy rain came through Ohio, election officials pivoted quickly. Polls were relocated. Hours were extended. But these solutions 

were the result of careful planning on the part of election officials. 

I am very glad to hear Ms. Beatty had an opportunity to discuss 

that. 

In addition to nature’s fury, we have to be ready for power outages, phone system failures and, most likely in November, an insufficient number of ballots. Another troublesome scenario is when 

poll workers fail to show up. 

The point is we’ve already seen each and every one of these 

occur, so we know what to expect, and we should plan accordingly. 

The EAC has provided election management materials. We have 

copies at the door. We advise election officials to obtain a copy of 

their State’s emergency operations plan. Who is authorized to act 

during an emergency situation? Which Representative Davis got 

right to. Who is in charge? Who can extend poll hours? Who can 

reschedule an election? 

Election officials should implement contingency plans for emergencies. Involve your county’s information technology staff to assist 

with developing procedures to create a computer action plan. 

Some of the questions election officials should consider include 

are records backed up regularly and stored in secure off-site locations, which sounds like they are. How do we educate and inform 

poll workers of changes? How do we inform the public when there 

is an emergency? And how do displaced voters participate? Hopefully, many have the opportunity to do absentee ballots, but some 

States are stricter about that. They must implement a continuity 


jbell on PROD1PC69 with HEARING
125 

of operations plan that reflects their contingency plan, establish a 

line of succession for election staff. Who is in charge of the office 

if something happens? Coordinate with law enforcement and chief 

State election officials and document procedures for Election Day 

in case of problems. And develop a complete list of polling place locations and give them to fire department and police departments 

in your jurisdiction. 

We have focused on ensuring that States and local jurisdictions 

have contingency plans in place. Most disasters, per Senator Feinstein’s observation, are localized. However, we cannot afford the reality of a disaster that has national implications. As uncomfortable 

as this idea makes us, I believe it deserves our attention. We 

should begin a dialogue among voters, Federal and State legislators, election officials and plan together. 

EAC appreciates the opportunity to provide testimony today; and 

we are ready to work with you, State and local election officials and 

voters. Voters should know that nothing will stop them from making their voices heard loud and clear on Election Day. 

Thank you. 

Ms. LOFGREN. Thank you very much. 

[The statement of Ms. Rodriguez follows:] 


jbell on PROD1PC69 with HEARING
126 


jbell on PROD1PC69 with HEARINGInsert offset folio 147 here 43798A.111
127 


jbell on PROD1PC69 with HEARINGInsert offset folio 148 here 43798A.112
128 


jbell on PROD1PC69 with HEARINGInsert offset folio 149 here 43798A.113
129 


jbell on PROD1PC69 with HEARINGInsert offset folio 150 here 43798A.114
130 


jbell on PROD1PC69 with HEARINGInsert offset folio 151 here 43798A.115
131 


jbell on PROD1PC69 with HEARINGInsert offset folio 152 here 43798A.116
132 

Ms. LOFGREN. Mr. Kennedy, we would be pleased to hear from 

you. 

STATEMENT OF KEVIN J. KENNEDY 

Mr. KENNEDY. Thank you very much Madam Chair, Congressman Davis. It is truly an honor to be here, and I appreciate that. 

It has also been an honor and a privilege to be Wisconsin’s chief 

election official for 25 years. 

I would like to just make a few points, rather than go through 

the testimony that’s been submitted for the record; and I think this 

is a great forum to do this, because it serves a purpose for the public as well as for you. 

Preparedness is not new in election administration. It has been 

something that dedicated election officials have been approaching 

for years. It has always been more of what are we going to do 

under this circumstance. Now I think what’s happened as a result 

of the 2000 election, the 2001 9/11, the issues that we’ve heard, as 

a community we are talking. And we take—I think it is now a 

point of emphasis. It is more than just what are we going to do. 

You know, we had those hot button things that got our attention, 

but now I think election officials are taking a very systemic approach. And you saw that reflected in the testimony of the individuals before that, you saw that in the commitment from the U.S. 

Election Assistance Commission in terms of the guidance that 

they’ve prepared that I referenced in my testimony. And I think 

that is important. 

I was asked to talk about Wisconsin, and that is why I said preparedness just isn’t a new thing in Wisconsin or other places. But 

we’ve really incorporated into all aspects of our election administration and, quite frankly, in our administration of a State government. In our training, we have detailed information. 

We have to certify the chief election inspectors in the State of 

Wisconsin. My agency does that, and right away we put the pressure on them. Do you have—make sure you review the plan, ask 

for it, which puts the pressure on our clerks. And in Wisconsin we 

are unique in the sense we don’t run our elections at the county 

level. We run it at the municipal level. There are about 8,000 local 

election officials, and 2,000 of them are in the State of Wisconsin. 

I have 1,851 town cities and villages that are on the ground, people 

running the elections. And my 72 county clerks are involved, but 

voter registration and absentee voting and polling places and poll 

workers are in the hands of those dedicated people, many of whom 

are part time. But we incorporate that into the training. We try to 

put some responsibility on everyone. 

Now, I don’t have a copy of a plan from 1,851 municipalities in 

72 counties, but they have been hearing about this for a long time 

from us. As I said, we’ve moved from the what are you going to do, 

to let us see a plan, let us have that. And that is incorporated in 

the training. That is incorporated in our election preparation. I find 

it ironic that it has become part of our culture for an election administration, and as we move into 2008 Wisconsin has been a battleground State for the last two Presidential elections, and we don’t 

expect that to change in 2008. 


jbell on PROD1PC69 with HEARING
133 

And so the day that I got a call from the staff here I was actually 

speaking to the State bar and had been asked to speak on election 

disaster. Avoiding Your Worst Nightmare was the title of the talk 

that they gave to me. So even the attorneys that advise my local 

election officials are there wanting to be prepared. 

And so it is—you know, I think that is the benefit, and I think 

this is where this hearing adds to this. Because the fact that we 

have made a part of our culture in election administration the fact 

that our attorneys are saying we need to know this as we go into 

2008 means that we can then convey to the public that we are taking this seriously. 

The other thing that I want to mention, there was one good example that we used, and that is in the 2006 election, which is our 

statewide election for Governor and Attorney General as well as 

our legislative elections and congressional elections, we had a bomb 

threat at a polling place at a high school in the city of Madison; 

and the handling of that bomb threat was exactly—showed how 

well the preparedness had paid off. All the preaching that we had 

done and sample plans we had set out, the city of Madison was 

well prepared. They called our office and they said what do we do—

or this is what we are doing, is that okay, do you have any suggestions, was really the approach that they took. The city attorney 

was saying, do you have a model form for going into court to extend 

voting hours, was it okay for us to set up across from the building 

so that voting could continue. 

And it all worked together well. We got a court extension for an 

extra hour, but we really never really disrupted the voting other 

than moving the equipment out of the polling place. And we had 

people in there. And because it was well communicated to the public, that is why we went to court. 

It wasn’t because we broke the chain of voting, but the fact that 

the media was covering this and knew about it, the public said, 

gee, there is a disruption. What’s going to happen? We got that extension so that there was time for them to be comfortable with the 

change. 

Let me just finish with one comment about Federal roles in this, 

and that is I think Wisconsin has a well-developed emergency planning program. I think the Feds have really stepped in to beef that 

up through Homeland Security, and I think that creates a real synergy where we can use that information. Clearly, our infrastructure 

is stronger now than it was eight years ago; and I think that is a 

result and I think that is a role that the Federal Government plays 

very well on that. 

And what we really need to do is, as I think the Chair mentioned, get election management as a component. If it is on the 

radar screen, then they know. That is part of what we do to keep 

our country running. 

Thank you very much. 

Ms. LOFGREN. Thank you very much. 

[The statement of Mr. Kennedy follows:] 


jbell on PROD1PC69 with HEARING
134 


jbell on PROD1PC69 with HEARINGInsert offset folio 158 here 43798A.117
135 


jbell on PROD1PC69 with HEARINGInsert offset folio 159 here 43798A.118
136 


jbell on PROD1PC69 with HEARINGInsert offset folio 160 here 43798A.119
137 


jbell on PROD1PC69 with HEARINGInsert offset folio 161 here 43798A.120
138 


jbell on PROD1PC69 with HEARINGInsert offset folio 162 here 43798A.121
139 


jbell on PROD1PC69 with HEARINGInsert offset folio 163 here 43798A.122
140 


jbell on PROD1PC69 with HEARINGInsert offset folio 164 here 43798A.123
141 


jbell on PROD1PC69 with HEARINGInsert offset folio 165 here 43798A.124
142 


jbell on PROD1PC69 with HEARINGInsert offset folio 166 here 43798A.125
143 


jbell on PROD1PC69 with HEARINGInsert offset folio 167 here 43798A.126
144 


jbell on PROD1PC69 with HEARINGInsert offset folio 168 here 43798A.127
145 

Ms. LOFGREN. Thanks to both of you. 

I will turn now to Mr. Davis for his questions. 

We welcome Mr. McCarthy to the hearing. 

Mr. DAVIS of Alabama. Thank you, Madam Chairwoman. 

Let me begin, Ms. Rodriguez, with your testimony. I agree with 

you at the outset that this is not an implausible Tom Clancy kind 

of scenario. One of the things that we believe regarding 9/11 is that 

al Qaeda mistakenly thought that hitting the Pentagon, hitting the 

Capitol and hitting the World Trade Center would have a decapitating effect on our government. That was a misunderstanding of 

something as basic as the fact that Members of Congress aren’t all 

sitting around the floor in the morning on Tuesday, and as fundamental is the fact that our economic and military command structures are much more dispersed, and I think they appreciate it. 

But the fact that they got it wrong doesn’t mean that the intent 

was not there. So it is plausible, it is conceivable that some election 

in the future, al Qaeda or some version of al Qaeda around the 

world could try to do, for example, a series of multiple attacks. And 

while it takes Senator Feinstein’s observation about an attack by 

definition being in a limited physical location, you could have a run 

of suicide bombings, for example, which would have the effect of 

paralyzing those communities and causing widespread fear in other 

places. 

So I don’t view this as a Tom Clancy scenario. But what I struggle with is the question of decision-making power. Obviously, the 

one thing the Federal Government lacks is an election board. We 

don’t have the equivalent, Mr. Kennedy, of your organization at the 

Federal level. And, obviously, the EAC is certainly not the Federal 

version of a Board of Registrars that can make or implement these 

decisions. 

Vesting the power to suspend an election on the President of the 

United States jars us for all kinds of reasons. There have been two 

instances in our history when presidents acted to suspend the constitutional rights: Mr. Lincoln’s suspension of the writ of habeas 

corpus, Mr. Roosevelt’s actions regarding Japanese detainees. We 

don’t look approvingly at Mr. Lincoln’s actions in retrospect; and, 

frankly, Mr. Roosevelt’s actions we’re appalled by. So giving the 

power to the executive worries us. 

Giving the power to the Congress is implausible. Congress is not 

in session on Election Day in November. You can’t exactly do a 

phone-in on something like this. So that would certainly strain our 

system. So is there any conceivable statutory authority that you 

could suggest, Ms. Rodriguez, or any conceivable decision-making 

process that would work? 

Ms. RODRIGUEZ. Well, perhaps you could consider some sort of 

check and balance system that involved the executive, congressional leadership perhaps, and the Supreme Court. I mean, maybe 

there is some combination of those three. There would have to be 

a lot of what-ifs built in. 

Mr. DAVIS of Alabama. Or some of us didn’t like it the last time 

the Supreme Court went near an election in this country. 

Ms. RODRIGUEZ. But with the check of Congress and the executive, maybe there is something that can be done. It seems to me 

that we ought to have a contingency plan at the national level. 


jbell on PROD1PC69 with HEARING
146 

Mr. DAVIS of Alabama. Mr. Kennedy, would you like to comment 

on that? 

Mr. KENNEDY. I will comment based on the Wisconsin situation, 

because we don’t have a statute but we do have—that clearly says 

it, but our emergency management authority for our Governor is 

very strong, and there is a clear requirement for our agency to 

work with him. And our position has been that the Governor does 

have the authority to act in this. And I think what could be done 

at the Federal level is something similar to the Wisconsin level, 

recognizing the role of the three branches of government. 

I think that Congress can authorize the President to act under 

certain circumstances with a very immediate review by the Supreme Court that Congress is allowed to set the parameters on 

this. And I think the comments that people have made about it is 

generally very dispersed. I mean, I think about this in Wisconsin 

about snowstorms. If we close a polling place in Green Bay, how 

does that affect the southwest corner of the State? 

Mr. DAVIS of Alabama. What if the President were on the ballot? 

Mr. KENNEDY. I think, you know, we elect governors and presidents to be our leaders; and they are going to be held accountable. 

They may be on the ballot, they make that decision, but ultimately 

we have courts to keep them in check. I think that is something 

to recognize; and that is why when Congress, if it goes this route, 

sets the parameters. But I think our three branch government allows us to set those kind of standards. And it is a risk, but I would 

say the same thing we would be asking of the Governor on the ballot. 

Ms. LOFGREN. Thank you, Mr. Davis. 

Mr. McCarthy. 

Mr. MCCARTHY. Thank you very much. 

I apologize for coming late. I had a couple committees. 

But just kind of along that same line, I know Mr. Davis mentioned about people get concerned when it goes to the courts. But, 

first, a little truth in advertising. It was Al Gore who requested to 

go to the Supreme Court. 

But the checks and balances that we do have set up, much as 

this body here, two of us worked on a—if you have a contested race 

in Congress, it goes before Congress. And I think Chairwoman Zoe 

Lofgren, when we went through ours, showed a very good example 

of how to do it right. So there is a way of getting there, but you 

do need the checks and balances, and you do need to be able to look 

at it both ways. 

Before I progress, I do want to ask unanimous consent to enter 

these two documents into the record: the written testimony for 

Keith Cunningham, Allen County Ohio Elections Director, and the 

Milwaukee Police Report. 

Ms. LOFGREN. Without objection, they will be made a part of the 

record. 

[The information follows:] 


jbell on PROD1PC69 with HEARING
147 


jbell on PROD1PC69 with HEARINGInsert graphic folio 174 43798A.128
148 


jbell on PROD1PC69 with HEARINGInsert graphic folio 175 43798A.129
149 


jbell on PROD1PC69 with HEARINGInsert graphic folio 176 43798A.130
150 


jbell on PROD1PC69 with HEARINGInsert graphic folio 177 43798A.131
151 


jbell on PROD1PC69 with HEARINGInsert graphic folio 178 43798A.132
152 


jbell on PROD1PC69 with HEARINGInsert graphic folio 179 43798A.133
153 


jbell on PROD1PC69 with HEARINGInsert graphic folio 180 43798A.134
154 


jbell on PROD1PC69 with HEARINGInsert graphic folio 181 43798A.135
155 


jbell on PROD1PC69 with HEARINGInsert graphic folio 182 43798A.136
156 


jbell on PROD1PC69 with HEARINGInsert graphic folio 183 43798A.137
157 


jbell on PROD1PC69 with HEARINGInsert graphic folio 184 43798A.138
158 


jbell on PROD1PC69 with HEARINGInsert graphic folio 185 43798A.139
159 


jbell on PROD1PC69 with HEARINGInsert graphic folio 186 43798A.140
160 


jbell on PROD1PC69 with HEARINGInsert graphic folio 187 43798A.141
161 


jbell on PROD1PC69 with HEARINGInsert graphic folio 188 43798A.142
162 


jbell on PROD1PC69 with HEARINGInsert graphic folio 189 43798A.143
163 


jbell on PROD1PC69 with HEARINGInsert graphic folio 190 43798A.144
164 


jbell on PROD1PC69 with HEARINGInsert graphic folio 191 43798A.145
165 


jbell on PROD1PC69 with HEARINGInsert graphic folio 192 43798A.146
166 


jbell on PROD1PC69 with HEARINGInsert graphic folio 193 43798A.147
167 


jbell on PROD1PC69 with HEARINGInsert graphic folio 194 43798A.148
168 


jbell on PROD1PC69 with HEARINGInsert graphic folio 195 43798A.149
169 


jbell on PROD1PC69 with HEARINGInsert graphic folio 196 43798A.150
170 


jbell on PROD1PC69 with HEARINGInsert graphic folio 197 43798A.151
171 


jbell on PROD1PC69 with HEARINGInsert graphic folio 198 43798A.152
172 


jbell on PROD1PC69 with HEARINGInsert graphic folio 199 43798A.153
173 


jbell on PROD1PC69 with HEARINGInsert graphic folio 200 43798A.154
174 


jbell on PROD1PC69 with HEARINGInsert graphic folio 201 43798A.155
175 


jbell on PROD1PC69 with HEARINGInsert graphic folio 202 43798A.156
176 


jbell on PROD1PC69 with HEARINGInsert graphic folio 203 43798A.157
177 


jbell on PROD1PC69 with HEARINGInsert graphic folio 204 43798A.158
178 


jbell on PROD1PC69 with HEARINGInsert graphic folio 205 43798A.159
179 


jbell on PROD1PC69 with HEARINGInsert graphic folio 206 43798A.160
180 


jbell on PROD1PC69 with HEARINGInsert graphic folio 207 43798A.161
181 


jbell on PROD1PC69 with HEARINGInsert graphic folio 208 43798A.162
182 


jbell on PROD1PC69 with HEARINGInsert graphic folio 209 43798A.163
183 


jbell on PROD1PC69 with HEARINGInsert graphic folio 210 43798A.164
184 


jbell on PROD1PC69 with HEARINGInsert graphic folio 211 43798A.165
185 


jbell on PROD1PC69 with HEARINGInsert graphic folio 212 43798A.166
186 


jbell on PROD1PC69 with HEARINGInsert graphic folio 213 43798A.167
187 


jbell on PROD1PC69 with HEARINGInsert graphic folio 214 43798A.168
188 


jbell on PROD1PC69 with HEARINGInsert graphic folio 215 43798A.169
189 


jbell on PROD1PC69 with HEARINGInsert graphic folio 216 43798A.170
190 


jbell on PROD1PC69 with HEARINGInsert graphic folio 217 43798A.171
191 


jbell on PROD1PC69 with HEARINGInsert graphic folio 218 43798A.172
192 


jbell on PROD1PC69 with HEARINGInsert graphic folio 219 43798A.173
193 


jbell on PROD1PC69 with HEARINGInsert graphic folio 220 43798A.174
194 


jbell on PROD1PC69 with HEARINGInsert graphic folio 221 43798A.175
195 


jbell on PROD1PC69 with HEARINGInsert graphic folio 222 43798A.176
196 


jbell on PROD1PC69 with HEARINGInsert graphic folio 223 43798A.177
197 


jbell on PROD1PC69 with HEARINGInsert graphic folio 224 43798A.178
198 


jbell on PROD1PC69 with HEARINGInsert graphic folio 225 43798A.179
199 


jbell on PROD1PC69 with HEARINGInsert graphic folio 226 43798A.180
200 


jbell on PROD1PC69 with HEARINGInsert graphic folio 227 43798A.181
201 


jbell on PROD1PC69 with HEARINGInsert graphic folio 228 43798A.182
202 


jbell on PROD1PC69 with HEARINGInsert graphic folio 229 43798A.183
203 


jbell on PROD1PC69 with HEARINGInsert graphic folio 230 43798A.184
204 


jbell on PROD1PC69 with HEARINGInsert graphic folio 231 43798A.185
205 


jbell on PROD1PC69 with HEARINGInsert graphic folio 232 43798A.186
206 


jbell on PROD1PC69 with HEARINGInsert graphic folio 233 43798A.187
207 


jbell on PROD1PC69 with HEARINGInsert graphic folio 234 43798A.188
208 


jbell on PROD1PC69 with HEARINGInsert graphic folio 235 43798A.189
209 


jbell on PROD1PC69 with HEARINGInsert graphic folio 236 43798A.190
210 


jbell on PROD1PC69 with HEARINGInsert graphic folio 237 43798A.191
211 


jbell on PROD1PC69 with HEARINGInsert graphic folio 238 43798A.192
212 


jbell on PROD1PC69 with HEARINGInsert graphic folio 239 43798A.193
213 


jbell on PROD1PC69 with HEARINGInsert graphic folio 240 43798A.194
214 


jbell on PROD1PC69 with HEARINGInsert graphic folio 241 43798A.195
215 


jbell on PROD1PC69 with HEARINGInsert graphic folio 242 43798A.196
216 


jbell on PROD1PC69 with HEARINGInsert graphic folio 243 43798A.197
217 

Mr. MCCARTHY. I have a couple different questions, one for Mr. 

Kennedy. Knowing and hearing the end of your testimony and 

reading some of it there, I know you have the back-ups to paper 

prepared for it. How often have you used that in Wisconsin? 

Mr. KENNEDY. Wisconsin has been a paper ballot State for years. 

In fact, we had 900 polling places that had hand-counted paper ballots before HAVA where we either added optical scan or a touchscreen voting system to that. 

Occasionally, with our optical scan we have had to hand count 

ballots, because we either ran out of ballots and we had a provision 

for substitute ballots since they aren’t going to be read by the machine. It has been part of our culture. It doesn’t happen a significant number of times. But I would say in any general election we 

will have a number of hand-counted ballots where it is primarily 

an optical scan. 

The year 2006 was the first time we had—we have 20 municipalities that have just touch screen plus paper for their absentee 

voting or for the back-up. So we haven’t had an experience there, 

and they are all relatively small municipalities. 

Mr. MCCARTHY. So you are already prepared. You did that on 

your own, your own driven ability. 

Is one of the reasons at times you may have to go to back-up, 

is it ever caused by same-day registration, where you have people 

coming in that you have never been able to gauge that this was 

going to happen because they weren’t registered prior? 

Mr. KENNEDY. No. Election Day registration, a lot of it is address 

changes. We’ve peaked at about 18 percent in 2006, and that is because our small municipalities didn’t have voter registration. 

Mr. MCCARTHY. Clarify 18 percent for me. You have 18 percent 

new people who come in who voted who weren’t registered before? 

Mr. KENNEDY. In 2006, of the 2.2 million people who voted in our 

gubernatorial election, 18 percent registered at the polling place. 

And part of that was because, as part of HAVA, we put a statewide 

voter registration system in place. We had 1,500 municipalities 

that were like North Dakota, no voter registration. 

Mr. MCCARTHY. So almost one-fifth of everyone who voted you 

had no idea was coming. 

Mr. KENNEDY. Well, actually, if you are doing—an election official who is doing their job has a very good job they are coming, because they can gauge the voter turnout. We, quite frankly, nailed 

the turnout for 2006 when we did our predictions right almost to 

the number in terms of how many people were going to vote. So 

if it happens, it is because the election official hasn’t done their 

work. Because they—we have had Election Day registration since 

1976, and we have a good sense of how many people register. We 

know most of them are really address changes in the municipality 

because they reflect people’s convenience for this. 

Mr. MCCARTHY. How much of the 18 percent is address change? 

Mr. KENNEDY. Well, that one we are just starting to get a handle 

on now. I couldn’t give you an answer now, but I would say easily 

half of that. 

Mr. MCCARTHY. What safeguard do you have? Because in the report I was reading, this Milwaukee Police Department, they were 


jbell on PROD1PC69 with HEARING
218 

citing some double voting and some others because of same-day 

registration. How do you protect from that? 

Mr. KENNEDY. Well, with any double voting you protect with it 

after the election. 

Mr. MCCARTHY. You protect after the election? 

Mr. KENNEDY. You always enforce after the election when you 

are dealing with double voting, because people are going to double 

vote in remote locations. 

Mr. MCCARTHY. Are those ballots already counted, though? 

Mr. KENNEDY. That is a possibility that they may be counted. 

Mr. MCCARTHY. But if I voted twice, if I walked in and I registered to vote, so I did it fraudulently, because one out of every 

five people are totally new, so I am registering putting it in. I vote 

and then my ballot goes into that box correct or gets counted. 

Mr. KENNEDY. That’s correct. 

Mr. MCCARTHY. So how do you know which ballot is which if you 

are having almost 20 percent of the people registering that day and 

they are double voting. 

Mr. KENNEDY. Well, when people register to vote on Election 

Day, they are required to provide identifying information so we 

know who the people are who have registered. Anytime you have 

a ballot box stuffing situation—and I can tell you that in Wisconsin 

the number of people who have double voted is very small, and we 

have prosecuted two or three people because we have been able to 

identify them through the statewide voter registration system. 

They always vote in different locations, because their name is going 

to be on the poll as somewhere else. They bring their identification 

to vote in a new location. We have had successful prosecutions. 

That’s how we stopped that process. 

The Milwaukee Police Report is very speculative. It is actually a 

political document that has more to do with the internal politics of 

the Milwaukee Police Department than it does with the conduct of 

the election in 2004. 

Mr. MCCARTHY. So you disagree with the special investigation 

unit, you think it is political? 

Mr. KENNEDY. I think that the generation of that report is political. The Milwaukee police chief did not even see it before it was 

released. 

Mr. MCCARTHY. So the persons doing this just for political reasons is 1 of 67 pages, I guess. If I just follow one thought. I ask 

if it is possible, would you agree that it would be more helpful to 

election officials maybe if you cut off registration two weeks prior, 

that way you still have the election going on, the excitement, people can register, but you would know how many people are there. 

You wouldn’t have one out of every five persons coming in. And 

from your words, you are dealing with it after the election. Then 

you would make sure they couldn’t double-vote and have that ballot 

inside the box already counted. 

Mr. KENNEDY. I would not agree with that. I think that Wisconsin and Minnesota have demonstrated very minimal electoral 

fraud, and it is probably less than you see in places that closes 30 

days before the election. The Election Day registration is generally 

not the source of the problems. Milwaukee’s problems in 2004 were 


jbell on PROD1PC69 with HEARING
219 

generally poll worker-related problems for failing to balance the 

voters against the ballots. They didn’t really—— Mr. MCCARTHY. How much fraud is acceptable? 

Mr. KENNEDY. I don’t think any fraud is acceptable. Realistically, 

you recognize there are always people who will try to game the system. That is why we have prosecutors and that is why we build 

tools into the system to catch those people and publicly prosecute 

them, so that that’s the best deterrent. 

Ms. LOFGREN. The gentleman’s time has expired. I will just ask 

a couple of questions because I know we are going to be called 

away to votes in a few minutes. Chairwoman Rodriguez, it is my 

understanding that the former Chairman Suarez sent a letter in, 

I think 2004, to the Department of Homeland Security, expressing 

his concern about the lack of plans to deal with disruption of elections due either to a catastrophe of whatever nature, and that he 

never got an answer to this letter. 

I guess it is good to know that I am not the only one who never 

gets an answer from Department of Homeland Security. 

The question is, have they, even though they never answered the 

letter, have they provided input to the Commission? Have they 

given support for the planning efforts that the Commission has undertaken? 

Ms. RODRIGUEZ. To my knowledge, they have not nor have we 

followed up that letter. 

Ms. LOFGREN. Okay. I just want to follow up a little bit more on 

the whole issue of in the case of a disaster that disrupts voting, 

how we deal with that, which is really the purpose of this hearing. 

I think I agree with Senator Feinstein that if there is a disruption 

in one place, you don’t cancel the election. We are America, we hold 

elections, we choose our leaders ourselves. That should be our plan. 

Having said that, having been through the Loma Prieta Earthquake and some other disasters, there are some things where you 

just can’t proceed at the moment in a particular area. Mr. Davis 

is right, it is difficult to decide who makes that decision in a way 

that is apolitical that is not biased towards any party or candidate. 

And it strikes me that if we were to set some standards, or at least 

for Federal elections put a statute in place that would only be viable if the State didn’t have a system in place and the States that 

do would be fine. That involved really the Judiciary, which is the 

least political of the three branches of government, that that might 

be at least a useful thing to do. Do you have a reaction, either one 

of you, to that concept? 

Ms. RODRIGUEZ. I like the concept because it would go to the 

State first, does the State have something in place? But when in 

an event that the State didn’t, certainly in my opinion, somebody 

has to take some action. And it would make sense that Congress 

with some input, some check, would be the person or be the entity. 

Mr. KENNEDY. I think I responded to Congressman Davis, Congress is in a good position to set some parameters on how authorities exercise, and that is one way of approaching it. I think any 

time you have an election that involved Federal candidates, even 

under Wisconsin’s situation, we would be consulting with our U.S. 

attorneys, for example. 

Ms. LOFGREN. Right. 


jbell on PROD1PC69 with HEARING
220 

Mr. KENNEDY. Our congressional delegation would be in touch if 

we had that kind of situation. Even though it would be our governor making the decision, recognizing it was a congressional, you 

would end up having ultimate authority on judging the outcome of 

that election after, if it was postponed or forcing it to be changed. 

Ms. LOFGREN. Chairwoman Rodriguez, it is my understanding 

that only 16 States have a statute or developed plans to deal with 

Election Day emergencies. What should Congress or the Commission do between now and October to help or encourage States who 

have not prepared themselves as Wisconsin and Florida and others 

have, to do so, because I think the likelihood is natural disasters 

can happen anywhere. 

And HAVA funds can be used for contingency planning, but it 

doesn’t look to me from the reporting data that any of the States 

have used HAVA funding to put contingency planning in place. 

What is your suggestion for us to get States who have not prepared 

in a preparation mode? 

Ms. RODRIGUEZ. Well, I noticed Leslie from the National Association of Secretaries of State in the audience. 

Ms. LOFGREN. Welcome. 

Ms. RODRIGUEZ. And I have no doubt that she will report on this 

hearing. Mr. Kennedy, thank you for putting visibility on this 

issue. I will chime in because this level of interest in what the 

States are doing, I think, will prompt legislatures to address the 

issue. 

Ms. LOFGREN. Okay. With that, I am going to thank each of you 

for your testimony. Note as I said earlier that we will keep the legislative record open for 5 legislative days. If there are additional 

questions that the members have, we will forward them to you and 

ask that you respond as promptly as possible. 

We thank the witnesses, all of you. A lot of people don’t realize 

that the witnesses are volunteers here to help our country do the 

best job possible. So we appreciate the expert advice we have gotten today. Thank you very much and this hearing is adjourned. 

[Whereupon, at 3:22 p.m., the subcommittee was adjourned.] 


jbell on PROD1PC69 with HEARING