VOTER SUPPRESSION 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION, 

CIVIL RIGHTS, AND CIVIL LIBERTIES 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

FEBRUARY 26, 2008 

Serial No. 110–100 

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VOTER SUPPRESSION 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION, 

CIVIL RIGHTS, AND CIVIL LIBERTIES 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

FEBRUARY 26, 2008 

Serial No. 110–100 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

BETTY SUTTON, Ohio 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

PERRY APELBAUM, Staff Director and Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

JERROLD NADLER, New York, Chairman 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

JOHN CONYERS, JR., Michigan 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

STEVE COHEN, Tennessee 

TRENT FRANKS, Arizona 

MIKE PENCE, Indiana 

DARRELL ISSA, California 

STEVE KING, Iowa 

JIM JORDAN, Ohio 

DAVID LACHMANN, Chief of Staff 

PAUL B. TAYLOR, Minority Counsel 

(III) 

C O N T E N T S 

FEBRUARY 26, 2008 

Page 

OPENING STATEMENTS 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Chairman, Subcommittee on the Constitution, Civil 

Rights, and Civil Liberties .................................................................................. 1 

The Honorable Trent Franks, a Representative in Congress from the State 

of Arizona, and Ranking Member, Subcommittee on the Constitution, Civil 

Rights, and Civil Liberties .................................................................................. 2 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, Chairman, Committee on the Judiciary, and Member, 

Subcommittee on the Constitution, Civil Rights, and Civil Liberties ............. 3 

The Honorable Mike Pence, a Representative in Congress from the State 

of Indiana, and Member, Subcommittee on the Constitution, Civil Rights, 

and Civil Liberties ............................................................................................... 5 

WITNESSES 

Mr. Asheesh Agarwal, Deputy Assistant Attorney General, Civil Rights Division, Department of Justice 

Oral Testimony ..................................................................................................... 6 

Prepared Statement ............................................................................................. 9 

Mr. J. Gerald Hebert, Executive Director and Director of Litigation, Campaign Legal Center 

Oral Testimony ..................................................................................................... 57 

Prepared Statement ............................................................................................. 59 

Mr. Hilary O. Shelton, Director, Washington Bureau of the NAACP 

Oral Testimony ..................................................................................................... 80 

Prepared Statement ............................................................................................. 82 

Mr. Tom Emmer, Deputy Minority Leader, Minnesota State House of Representatives 

Oral Testimony ..................................................................................................... 83 

Prepared Statement ............................................................................................. 86 

Ms. Lorraine C. Minnite, Ph.D., Assistant Professor, Barnard College 

Oral Testimony ..................................................................................................... 108 

Prepared Statement ............................................................................................. 110 

APPENDIX 

Material Submitted for the Hearing Record .......................................................... 129 

(1) 

VOTER SUPPRESSION 

TUESDAY, FEBRUARY 26, 2008 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON THE CONSTITUTION,

CIVIL RIGHTS, AND CIVIL LIBERTIES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 10:30 a.m., in 

Room 2141, Rayburn House Office Building, the Honorable Jerrold 

Nadler (Chairman of the Subcommittee) presiding. 

Present: Representatives Conyers, Nadler, Davis, Wasserman 

Schultz, Ellison, Scott, Watt, Cohen, Franks, and Pence. 

Staff present: David Lachmann, Subcommittee Chief of Staff, 

LaShawn Warren, Majority Counsel; Kanya Bennett, Majority 

Counsel; Caroline Mays, Majority Professional Staff Member; and 

Paul Taylor, Minority Council. 

Mr. NADLER. This hearing of the Subcommittee on the Constitution, Civil Rights, and Civil Liberties will now come to order. 

Today’s hearing will examine the problem of voter suppression 

and the work of the Department of Justice in protecting the right 

of all voters to exercise their franchise. The Chair recognizes himself for 5 minutes for an opening statement. 

Today’s hearing is part of the Subcommittee’s continuing oversight over the work of the Department of Justice’s Civil Rights Division and its responsibility to protect the right to vote. I can think 

of no more important right than the right to exercise the franchise 

freely, fairly, without fear or intimidation. 

Our Nation’s history is one of expanding inclusion. We have expanded the franchise to include all persons, regardless of race, color 

or previous condition of servitude, gender, and age. We have enacted the Voting Rights Act, the Help America Vote Act and the 

Motor Vehicle Voter Law. We have just renewed the Voting Rights 

Act in the last Congress with almost no dissent. 

The rights on paper are not the same as rights in fact. For that 

we need vigorous enforcement. 

Efforts by both official and private parties to suppress the vote, 

especially of certain groups targeted by race or belief, are unacceptable. Today we examine that problem and the extent to which the 

Department of Justice is faithfully discharging its duty to protect 

the rights of all voters. 

We have an outstanding lineup of witnesses. And I want to welcome them, and I look forward to their testimony. 

2 

With that, I yield back. I would now recognize our distinguished 

Ranking minority, the gentleman from Arizona, Mr. Franks, for his 

opening statement. 

Mr. FRANKS. Well, thank you, Mr. Chairman. Mr. Chairman, voting is the life blood of a democracy. And there are no legitimate 

leaders in a democracy without legitimate elections. 

I would like to draw to everyone’s attention two letters that were 

sent about a month ago to the Nevada state Democratic party. 

These letters illustrate the danger posed when we cannot verify 

legal voters or when existing voting laws go uninforced. Both letters request an investigation into voter suppression regarding actions taken by the Clinton and Obama presidential campaigns. I 

will first read from the letter from the Obama campaign. 

‘‘I request that the Nevada state Democratic party conduct an inquiry into an apparent and disturbing pattern of incidents reported 

at precinct locations throughout the State during the January 19th 

caucus. These reports suggest the possibility of activity conducted 

in violation of party rules and the rights of voters, activity that, as 

the volume and distribution of these complaints indicate, may have 

been planned and coordinated with the willful intention to distort 

the process in favor of one candidate, Senator Clinton. 

‘‘A sheet of instructions provided by the Clinton campaign to its 

precinct workers captures its program for the caucus. ‘It is not illegal unless they, the temporary precinct chairs, tell you so.’ ’’ 

This certainly suggests that for the Clinton campaign the operative standard of conduct was simply and only what it could get 

away with. 

The Obama campaign claimed to receive well over 1,000 accounts 

of misconduct. ‘‘Those Hillary people closed the doors on our people, 

and we had to call the cops in some precincts to have locks cut 

from the doors. They slipped people in the back doors. They sent 

people home at 11:30 when it was illegal to prevent people from 

voting before noon.’’ 

Another wrote, ‘‘In precinct 21 a Democratic worker who was 

clearly for Hillary refused to register Obama supporters and said 

she was registering Hillary supporters only.’’ 

Now let us read the letter from the Clinton campaign. 

‘‘The Clinton campaign wishes to bring to your attention,’’ speaking again to the party, Mr. Chairman. ‘‘We have received evidence, 

a premeditated and predesigned plan by the Obama campaign to 

engage in systemic corruption of caucus procedures. Compounding 

this blatant distortion of the caucus rules was an egregious effort 

by the Obama campaign to manipulate the voter registration process in its favor thereby disenfranchising countless voters. 

‘‘Caucus chairs obviously supporting Obama deliberately miscounted votes to favor Senator Obama, deliberately counted unregistered persons as Obama votes and deliberately counted young 

children as Obama votes. Many Clinton supporters were threatened with employment termination or other discipline if they caucused for Senator Clinton.’’ 

These incidents may constitute any number of very serious violations of Federal elections laws. The Obama campaign’s allegation 

that Clinton campaign workers were ‘‘turning our supporters away 

by asking to see their I.D.s and telling them they weren’t valid,’’ 

3 

is particularly unsettling, since such abuse could be remedied if 

there were a single secure universally recognized and accepted 

voter I.D. 

My own state of Arizona has enacted just such a law. Public support for secure voter I.D. remains very strong, Mr. Chairman. According to the independent pollster, Scott Rasmussen, ‘‘Support for 

the concept is overwhelming. More than three-fourths of Republican supporters showed identification as did 63 percent of Democrats and independents, 58 percent of Blacks, 69 percent of Whites, 

and 66 percent of other ethnic or racial minorities backed the concept.’’ 

Indiana’s voter I.D. law proves that such laws do not diminish 

voter turnout. Rather—and this is the important point, Mr. Chairman, rather, they can increase voter turnout by giving legal voters 

the security of knowing that their vote will count and that it will 

not be negated by the vote of someone voting illegally. Curiously, 

it has turned out that the lead plaintiff challenging the Indiana 

law was actually illegally registered to vote in two States. 

Dual registration invites voter fraud, and the plaintiff actually 

reinforced Indiana’s defense arguments. With these concerns in 

mind, I look forward to hearing from all of our witnesses today and 

to exploring what Congress and the Justice Department can do to 

help maintain the integrity of the election process. 

And thank you, Mr. Chairman. 

Mr. NADLER. I thank the gentleman. 

I now recognize for an opening statement the distinguished 

Chairman of the full Committee, Mr. Conyers. 

Mr. CONYERS. Thank you, Chairman Nadler. 

And thank you, too, Ranking Member Trent Franks, because this 

is not an insignificant matter that we are bringing forward. The 

right to vote is the basis that all our Democratic form of government is built on. I only want to add a comment from the excellent 

statement issued by Chairman Nadler. 

Because you see, too many Americans continue to face barriers 

preventing them from exercising their right to vote. If you don’t believe that, take a look at all the work the NAACP has done, the 

Mexican-American Legal Defense Fund, the American Civil Liberties Union, the Asian-American Legal Defense Fund, to name a 

few. And it has become and will become obvious because of these 

important hearings of increasing targets of minority communities’ 

voters of voter suppression tactics, of which there seem to be an 

ever-expanding number. 

So the critical question to be asked here this morning is what is 

the Justice Department doing to protect the right to vote for all 

Americans, particularly in light of the upcoming presidential election now only months away. The right to vote and fair access to the 

ballot box are obvious—the components of a truly Democratic society. 

Now, the department’s enforcement record in recent years bears 

scrutiny. That is why we are here. First, I am troubled by the department’s over-emphasis on pursuing voter fraud cases, which 

were the basis of a number of the firings of U.S. attorneys and 

what is now widely regarded as the politicization of the Department of Justice itself. 

4 

And we are pursuing these so-called voter fraud cases to the exclusion of voter suppression cases. Given the fact that voter fraud 

is so rare and that State law enforcement agencies are already actively pursuing individual voter fraud cases, the department’s policy represents, from my point of view, a misallocation of scarce resources and misplaced priorities. 

Department records show 24 people were convicted or pleaded 

guilty to illegal voting, not last year, but between the years 2002 

and 2005. That is an average of eight people a year. While voter 

fraud is not to be ignored, it is unacceptable for the department to 

pursue voter fraud cases and disregard flagrant examples of voter 

suppression. 

Now, the next item that we want our invited guests to think 

about with us is the department’s decision to intervene in support 

of the controversial Indiana photo identification law, thought to be 

one of the most Draconian pieces of legislation of its type in the 

country. It is particularly problematic because without doubt, this 

law will disenfranchise minorities, the elderly, the disabled. 

And to make matters worse, the Department of Justice has sent 

letters to 10 States, Iowa, Massachusetts, Mississippi, Nebraska, 

North Carolina, Rhode Island, South Dakota, Texas, Utah, and 

Vermont to pressure them to purge their voter rolls before the 2008 

election, which could adversely effect many thousands of voters. 

And finally, despite complaints about vote caging incidents that 

occurred in Ohio, in Pennsylvania, Florida, Nevada, and Wisconsin 

during the course of the 2004 presidential election, the department 

didn’t file a single lawsuit to stop this illegal practice. Instead, the 

department officials incredibly wrote a letter defending the GOP, 

the Republican efforts to engage in vote caging. 

And so, Mr. Chairman, it seems to me in recent years instead of 

promoting access to the poll, the voting section of the Department 

of Justice seems to have used its enforcement authority to deny access and promote barriers to block legitimate voters from participating in the political process. The Civil Rights Division has failed 

to fully enforce Section 2 of the Voting Rights Act largely aimed at 

combating racial discrimination in the voting process. 

And in the first 6 years of the present Administration, fewer Section 2 cases were brought by the voting section than in any other 

Administration since 1982. The number of Section 2 cases brought 

on behalf of African-Americans has come to a virtual standstill. 

While different Administrations have different enforcement priorities, it is a dereliction of duty for the Civil Rights Division not to 

bring voter suppression cases on behalf of African-Americans to 

protect their constitutional right to vote. The department’s role as 

a protector of voting rights is critical, especially as this upcoming 

election approaches. 

And already voting problems and questionable tactics in the ongoing presidential primaries are surfacing. So, please, Mr. Representative of the Department of Justice, consider these points that 

have been brought to your attention, and let us plan to really get 

to work on them. 

And, Mr. Chairman, I thank you for the additional time that you 

gave me. 

Mr. NADLER. I thank the gentleman. 

5 

The gentleman from Indiana is recognized. 

Mr. PENCE. Thank you, Chairman. Thank you for the courtesy. 

And no one on this Committee holds the Chairman of this Committee, of this full Committee in higher esteem than I do. But I felt 

duty-bound as a loyal Hoosier and someone who also cherishes the 

blood-bought right to vote to speak a few moments in opening remarks on behalf of the voter I.D. law in the state of Indiana. 

Respectfully quoting the Chairman, I think if I took my notes 

correctly, he referred to Indiana’s law as one of the ‘‘most Draconian pieces of legislation of its type in the Nation,’’ and also asserted that it would ‘‘disenfranchise the elderly and the disabled.’’ 

I would like to just say by way of opening remarks that I take exception to those characterizations of our law. 

I am anxious to hear the testimony of our witness today about 

the department’s decision to file an amicus brief in the Supreme 

Court in the Indiana voter I.D. law. The reality is recent experience under Indiana’s voter I.D. law shows that such laws do not 

diminish voter turnout at all. In fact, there is some evidence that 

they increase voter turnout. 

As was recently reported, voter turnout among Democrats improved slightly last year in Indiana despite a new law requiring 

voters to show photo identification at the polls. Jeffrey D. Milo, a 

professor at the University of Missouri compared the 2006 midterm elections, the first since Indiana’s law was enacted, to the 

2002 elections and said voter turnout increased about 2 percentage 

points. He said the increase was consistent across counties with the 

highest percentage of Democrats. 

I am anxious to get our witnesses’ sense of where this increased 

turnout derives. Many of us in Indiana believe that securing voter 

I.D. laws and requiring legal voters to demonstrate their identity 

at the polling place actually encourages participation because it 

gives people confidence that their vote will count and that there is 

fundamental integrity in the system. 

And let me also say that despite the characterization of this law 

as Draconian, there is enormous public support for securing voter 

I.D. laws. According to the Washington Times recently, ‘‘Two-thirds 

of Americans, including a majority of racial and ethnic minorities, 

say the government should make voters show photo identification 

before voting.’’ 

Sixty-three percent of Democrats and Independents, 58 percent 

of Blacks, 69 percent of Whites, 66 percent of other ethnic and racial minorities backed the concept. And I would love to hear our 

witnesses’ reflections on what accounts for the popularity of these 

laws. 

I am grateful, Mr. Chairman, for the courtesy of this opening 

statement. But we in Indiana anxiously await the Supreme Court’s 

judgment in this matter. 

But I must say that in my humble opinion that requiring voters 

to demonstrate their identity with a photo identification is the way 

we do at airports, the way many of us do when we are engaging 

in financial transactions, I believe, actually encourages participation. It encourages voter confidence, and it builds on a foundation 

of confidence in the system that I believe is greatly in the interest 

of our democracy. 

6 

And so, with that defense of our Indiana law, I yield back. 

Mr. NADLER. Thank you. I would simply point out that the turnout in 2006 was way up all over the country, regardless of voter 

I.D. cards over the 2002 election. 

In the interest of proceeding to our witness and mindful of our 

busy schedules, I would ask that other Members submit their 

statements for the record. Without objection, all Members will have 

5 legislative days to submit opening statements for inclusion in the 

record. Without objection, the Chair will be authorized to declare 

a recess of the hearing. 

As we ask questions of our witness, the Chair will recognize 

Members in the order of their seniority in the Subcommittee alternating between majority and minority, provided that the Member 

is present when his or her turn arrives. Members who are not 

present when their turn begins will be recognized after the other 

Members have had the opportunity to ask their questions. The 

Chair reserves the right to accommodate a Member who is unavoidably late or only able to be with us for a short time. 

Our first witness today is Asheesh Agarwal, Deputy Assistant 

Attorney General of the Department of Justice Civil Rights Division. He heads the division’s voting section. Mr. Agarwal is a graduate of the University of Chicago’s School of Law. And we welcome 

you here today. 

Before we begin, it is customary for the Committee to swear in 

its witnesses. If you would please stand and raise your right hand 

to take the oath. Do you swear or affirm under penalty of perjury 

that the testimony you are about to give is true and correct to the 

best of your knowledge, information, and belief? Let the record reflect that the witness answered in the affirmative. 

You may be seated. Your written statement will be made part of 

the record in its entirety. I would ask that you now summarize 

your testimony in 5 minutes or less. To help you stay within that 

time there is a timing light at your table. When 1 minute remains, 

the light will switch from green to yellow and then to red when the 

5 minutes are up. 

Mr. Agarwal? 

TESTIMONY OF ASHEESH AGARWAL, DEPUTY ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, DEPARTMENT 

OF JUSTICE 

Mr. AGARWAL. Thank you. Mr. Chairman, Ranking Member 

Franks, Members of the Subcommittee, it is a pleasure to appear 

before you to represent the Department of Justice and the dedicated professionals of the voting section of the Civil Rights Division. I am honored to serve the people of the United States as a 

deputy assistant attorney general. 

I am pleased to report that the Civil Rights Division remains 

diligent in protecting voting rights of all Americans. I would like 

to share with you some of the highlights of our work. 

As the Subcommittee knows, the President and the Department 

strongly supported the recent reauthorization of the Voting Rights 

Act. The Civil Rights Division is vigorously defending that statute’s 

constitutionality in Federal court here in the District of Columbia. 

Oral argument on the cross-summary judgment motions was held 

7 

on September 2007. I was proud to argue part of that case myself 

on behalf of the Department and in support of the law. 

In addition, we have had tremendous success recently under all 

of the statutes that we enforce. In the last 2 years we have won 

four trials and successfully resolved three other cases under Section 2 of the Voting Rights Act. These cases include a lawsuit 

against Long County, Georgia for improper challenges to HispanicAmerican voters based entirely on their perceived race and ethnicity. At least three of the challenged citizens were on active duty 

with the United States Army. We successfully resolved this matter 

with a consent decree. 

The cases also include a vote dilution suit against the city of Euclid, Ohio on behalf of African-American voters. Although AfricanAmericans comprise nearly 30 percent of the city’s electorate, not 

a single African-American candidate has ever been elected to the 

nine-member city council or to any other office. 

In August 2007, the court ruled that the city’s method of electing 

its city council violated the Voting Rights Act. We are proud of this 

result. 

We are also actively pursuing other violations of Section 2. For 

example, we recently notified two jurisdictions that enforcement actions have been authorized under Section 2 based on minority vote 

dilution, one in South Carolina on behalf of African-American voters and one in Florida on behalf of Hispanic voters. 

We have also broken records with regard to enforcement of Section 208 of the Voting Rights Act. As the Subcommittee knows, 

Section 208 assures all voters who need assistance in marking 

their ballots the right to choose a person they trust to provide that 

assistance. Voters may choose any person other than an agent of 

their employer or union to assist them in the voting booth. 

During the past 7 years, we have brought nine of the 11 suits 

ever brought by the Department under Section 208, including the 

first case ever to protect the rights of Haitian-American voters. 

These suits help combat voter suppression. 

For example, in Philadelphia a poll worker forbid a Spanishspeaking citizen with limited English skills from using her daughter to translate for her in the voting booth. This same poll worker 

then entered the voting booth with the voter and ultimately succeeded in mismarking the voter’s ballot for a candidate the voter 

did not wish to vote for. We were able to resolve this matter with 

a consent decree. 

We also remain committed to enforcing the language minority requirements of the Voting Rights Act. We filed nine lawsuits under 

these provisions in fiscal year 2007. During the past 7 years, the 

Civil Rights Division has brought more cases under the minority 

language provisions of the Voting Rights Act than in all other years 

combined since 1965. These include the first cases ever on behalf 

of voters of Korean, Vietnamese, and Filipino heritage. 

Finally, the Department is busy preparing for the 2008 elections. 

As we have in the past, we will implement a comprehensive election day program to help ensure ballot access. As in previous years, 

we will coordinate the deployment of hundreds of Federal Government employees in counties, cities, and towns across the country to 

8 

ensure access to the polls as required by our Nation’s civil rights 

laws. 

In identifying locations, the Civil Rights Division will again seek 

out the views of many organizations, including advocacy groups for 

minority voters, for voters with disabilities, as well as State and 

local officials. The division looks forward to continuing to work 

closely and cooperatively with this Subcommittee in its effort to 

protect the voting rights of all Americans. I look forward to your 

questions. 

[The prepared statement of Mr. Agarwal follows:] 

9 

PREPARED STATEMENT OF ASHEESH AGARWAL


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Mr. NADLER. Thank you. I will begin by recognizing myself for 

5 minutes to question Mr. Agarwal. 

Mr. Agarwal, historically, vote caging schemes have been used to 

suppress minority votes. When allegations of vote caging occurred 

back in 1990, the Department of Justice took swift action sending 

the FBI out immediately to investigate. The Department filed a 

Federal lawsuit against the Republican party in, I think it was, 

South Carolina and the Helms campaign and obtained declaratory 

and injunctive relief in the form of a consent judgment and decree. 

Has the Department’s position against vote caging changed since 

1990? 

Mr. AGARWAL. Thank you, Mr. Chairman. The Department 

stands ready to investigate any allegation that voters are being discriminated against on the basis of their race. 

Mr. NADLER. That wasn’t my question. Has the Department’s position against vote caging changed since 1990? 

Mr. AGARWAL. Congressman, whether any particular set of circumstances constitutes a violation of Federal law will depend on 

the facts and circumstances. If—— 

Mr. NADLER. Excuse me. Does the Department—you are evading 

my question. Does the Department still regard what is commonly 

known as vote caging as depriving people of the right to vote as 

illegal? 

Mr. AGARWAL. Congressman, with respect, that term vote caging 

is subject to many meanings. Whether a particular—— 

Mr. NADLER. Does the Department regard what it regarded as 

vote caging in 1990 and got a consent decree against—are you still 

opposed to that? 

Mr. AGARWAL. I am aware of no change in departmental policy 

between 1990 and today on that point. 

Mr. NADLER. Thank you. 

There were complaints of vote caging in Florida, Nevada, Wisconsin, and Ohio in 2004. How many vote caging investigations 

were initiated by the Department in response to these complaints? 

Mr. AGARWAL. Again, Congressman, we are vigorously investigating complaints that arose as a result of the 2006 mid-term 

elections. 

Mr. NADLER. Wait a minute. I asked about 2004. 

Mr. AGARWAL. Fair enough. Congressman, I joined the Civil 

Rights Division in the summer of 2006. To the extent that there 

were concerns raised about the 2004 elections I am confident that 

my predecessors in the Civil Rights Division—— 

Mr. NADLER. Were there any prosecutions as the result of vote 

caging allegations in the 2004 elections? 

Mr. AGARWAL. I am aware of no criminal prosecutions certainly. 

Mr. NADLER. Were there any other kind of prosecutions? 

Mr. AGARWAL. Not that I am aware of. 

Mr. NADLER. Okay. Why not? 

Mr. AGARWAL. Well, Congressman, I can tell you that the Department has remained vigilant in protecting the voting rights of 

all Americans. 

Mr. NADLER. Well, so you say, but we are trying to investigate 

whether that is true. There were complaints of vote caging in Florida in 2004, Nevada, Wisconsin, and Ohio. You are aware of no 

18 

prosecutions? Were they investigated? Were these complaints investigated? 

Mr. AGARWAL. Let us take Florida, if we can. I can tell you that 

a member of the—a career member of the Civil Rights Division was 

on the ground in Florida in advance of the 2000 elections, was 

aware of the caging allegations as you describe them and worked 

cooperatively with State and local officials and with members of 

both political parties to ensure that those lists that were created 

ultimately were not used to challenge voters. 

Mr. NADLER. Well, what happened? I mean, there were complaints after the election that they were used obviously in Florida, 

Nevada, Wisconsin, and Ohio. The Department initiated no prosecutions. Were there reports issued by the Department answering 

these allegations saying they weren’t true or they weren’t illegal? 

Or did those investigations just disappear into the ocean? 

Mr. AGARWAL. Congressman, again, I joined the division in 2006, 

so I am not aware specifically of what happened to those investigations. 

Mr. NADLER. Can you get detailed written answers to these questions to this Committee within the next 2 weeks? 

Mr. AGARWAL. I will be happy to take that back to the Department, Congressman. 

Mr. NADLER. Will you commit to getting written responses to this 

Committee in the next 2 weeks, not to take it back to the Department, to get responses? 

Mr. AGARWAL. I will absolutely commit to looking into it during 

the next 2 weeks. 

Mr. NADLER. Will you commit to having your response to this 

Committee within the next 2 weeks? 

Mr. AGARWAL. Congressman—— 

Mr. NADLER. And the reason I am being so hard-nosed about this 

is that our experience is that when we get commitments from the 

Department to respond to us, nothing happens for years. We never 

get responses. 

Mr. AGARWAL. Congressman, I will commit to providing some 

type of written response within the next 2 weeks. 

Mr. NADLER. Thank you. How do you plan to address complaints 

of vote caging in the upcoming election cycle? 

Mr. AGARWAL. We will implement a comprehensive election day 

program which will include the deployment of hundreds of Federal 

monitors and observers around the country. In determining where 

to deploy those people, we will—— 

Mr. NADLER. Excuse me. That is election day. Do you plan to do 

anything in advance of election day about people or parties or entities or groups or whoever, who send out mail to voters in minority 

communities with instructions to return the mail? 

Mr. AGARWAL. Absolutely. Congressman, during the next 9 

months we will meet regularly. And we have been meeting with 

State and local election officials, representatives of, for example, 

the National Association of Secretary of States with minority 

groups. And we will listen to their concerns. And—— 

Mr. NADLER. Okay. Thank you. I have one further question as 

my time is running out. So let me just ask this quickly. 

19 

I am increasingly concerned by reports of significant staff turnover within the voting section. As you are aware, we are quickly 

approaching the 2008 presidential election and the 2010 census, 

which means there likely will be an upsurge in Section 5 submissions. 

It is my understanding that of the 25 experienced Section 5 analysts, only nine now remain. What steps are you taking to ensure 

that there will be sufficient experienced Section 5 analysts and attorneys to accommodate the increase of Section 5 submissions 

which can reasonably be anticipated because of the 2008 election 

and the 2010 census? 

Mr. AGARWAL. Congressman, we fully intend to have sufficient 

numbers of trained analysts ready to go after the 2010 census. 

Mr. NADLER. What about the 2008 election? 

Mr. AGARWAL. We have sufficient analysts onboard today—— 

Mr. NADLER. Nine analysts is sufficient? 

Mr. AGARWAL. Congressman, in 2006 the Department was able 

to analyze over 7,100 submissions, which was substantially greater 

than the number typically received in an election year. 

Mr. NADLER. And how many analysts did you have in 2006? 

Mr. AGARWAL. I don’t know the number offhand, but I can get 

that information for you. 

Mr. NADLER. Because it is my understanding that the Department has generally had at least 25 and that, as I said, of the 25 

experienced analysts, only nine remain. So can you get that information to us, please? 

Mr. AGARWAL. I can get that. 

Mr. NADLER. About how many the Department has had, how 

many it has now, how many have any kind of experience longer 

than, say, 2 or 3 years. 

Mr. AGARWAL. I can get you whatever information we have, Congressman. 

Mr. NADLER. Thank you. 

I now yield for 5 minutes of questioning to the distinguished gentleman from Arizona. 

Mr. FRANKS. Well, thank you, Mr. Chairman. 

Thank you, Mr. Agarwal. We have had a little turnover in Congress here, too. And it hasn’t been a pretty picture. I hope you do 

address the Chairman’s concerns there. 

Mr. Agarwal, you and your Department filed an amicus brief in 

the Supreme Court case involving Indiana voter law. Can you 

elaborate on that and tell us why you did it and what the effect 

of the law was in your mind? 

Mr. AGARWAL. Of course, Congressman. The Department filed 

that amicus brief because the Department determined that the 

issues raised in the Crawford case in the Supreme Court could effect the enforcement of Federal law, including Federal criminal law 

and on the civil side, the Civil Rights Division’s enforcement of the 

Help America Vote Act, which, as you know, contains its own voter 

identification requirement. 

Mr. FRANKS. Well, you know, the recent experience under Indiana’s voter law shows that the I.D. laws don’t diminish voter turnout at all, but they actually increase the voter turnout. That has 

been our experience in Arizona as well. And voter turnout among 

20 

Democrats improved slightly last year in Indiana despite a new law 

requiring voters to show photo identification at the polls. 

Jeffrey Milyo, professor at the University of Missouri, compared 

the 2006 mid-term elections—the first since Indiana’s law was enacted—to the 2002 elections and said voter turnout increased by 

about 2 percentage points. He said the increase was consistent 

across the counties with the highest percentage of Democrats. 

Do you think this increased turnout could be explained—I have 

made this case many times. But do you think it is explained by the 

fact that securing voter I.D. laws gives legal voters the security of 

knowing that their vote will count and that it will not be negated 

by the vote of someone voting illegally and thereby making them 

more likely to vote because they know their vote will be counted? 

Mr. AGARWAL. Congressman, interestingly enough, the Federal 

district court in the Georgia I.D. litigation found there was a rational relationship between the goal of deterring voter fraud and 

the enactment of voter I.D. laws. The Supreme Court had noted in 

the Priscilla case from 2 years ago that increased confidence in the 

elections is something that is very important and the States have 

legitimate interest in. 

Mr. FRANKS. Well, Mr. Agarwal, to your knowledge, has any 

court anywhere in America found that any voter has been prohibited from voting in a State that has a voter I.D. law because the 

voter did not possess a form of I.D. necessary to vote under that 

State’s law? 

Mr. AGARWAL. I am not aware of a single court that has made 

such a finding, Congressman. 

Mr. FRANKS. And how did the Federal district court rule on the 

challenge to the Georgia voter I.D. law? And explain that to us a 

little bit. 

Mr. AGARWAL. Well, the Georgia court ultimately upheld that 

State’s voter I.D. law. Interestingly enough, the court found that 

the plaintiff’s expert report was unreliable. The expert had relied 

on data showing that the district court judge himself lacked a driver’s license. And based in part on that flawed data, the court found 

that the report was unreliable. 

Mr. FRANKS. Well, Mr. Agarwal, you know, there are sometimes 

claims made that illegal immigrants safe from Mexico are voting in 

our elections. And I am not going to really address that because I 

don’t know what the circumstances there are. But it is interesting 

to me that in Mexico one of the main elements they have in their 

elections is a voter I.D. law. They want to make sure that they can 

distinguish legal voters from illegal voters. 

And I just would say to the Chairman and to the Committee here 

that I think that it is a reasonable thing to believe that when we 

have confidence in the election process that that serves the cause 

of democracy for all voters concerned. And I believe that it will ultimately make this country more secure in its own elections and 

even emphasize to the world in a greater way why democracy, why 

a representative form of government that relies upon every day 

citizens choosing their leaders to be the best in the world. 

And with that, I yield back, Mr. Chairman. 

Mr. CONYERS. [Presiding.] Thank you, Mr. Franks. I am assuming the chair for Chairman Nadler while he is absent. And I wantVerDate Aug 31 2005 11:51 Aug 14, 2008 Jkt 000000 PO 00000 Frm 00026 Fmt 6633 Sfmt 6601 H:\WORK\CONST\022608\40923.000 HJUD1 PsN: DOUGA
21 

ed to begin our discussion, Mr. Agarwal, by asking you do you believe that voter I.D. laws increase voting among minorities? 

Mr. AGARWAL. Congressman, the Department has not taken a position on the policy angles regarding voter identification laws. That 

is a determination to be made by Congress and by the States. 

Mr. CONYERS. This is not a policy question. I am asking you. I 

am merely asking you if you have any information, knowledge or 

belief that voter I.D. laws increase voter turnout. That is not a policy question. 

Mr. AGARWAL. In our amicus brief filed in the Supreme Court we 

did cite to the Milyo study that was referenced by Congressman 

Pence, which did find that there was an increase in turnout after 

the enactment of voter I.D. laws in Indiana. 

Mr. CONYERS. Well, yes, but that doesn’t lead you to answer my 

question in the affirmative? 

Mr. AGARWAL. Congressman, I am really not able to answer that 

question at this time. I think that would need more data. But I can 

tell you that there have been—at least this one study which did 

find an increased turnout. 

Mr. CONYERS. Sure, okay. Well, thanks a lot. 

Now, we have a number of issues in my opening statement which 

I am going to give you a copy of before you leave because these 

weren’t just rhetorical remarks. They were issues that we need to 

have answered specifically. Would you be willing to go through my 

opening statement and respond to them? 

Mr. AGARWAL. With pleasure, Congressman. 

Mr. CONYERS. Thank you. 

Now, with regard to the Tim Griffin case in Florida in which 

Members of the other body, Senators Whitehouse and Kennedy, 

called for a Department of Justice investigation into allegations 

that Tim Griffin in Florida, a former Republican National Committee opposition researcher, and others at the RNC may have engaged in caging during the 2004 elections. Are you familiar with 

that matter? Or have you heard about it? 

Mr. AGARWAL. I have heard about it, yes. 

Mr. CONYERS. All right. Is there any indication or do you have 

any information that there is a Department of Justice investigation 

ongoing in that matter? 

Mr. AGARWAL. I am aware of no such ongoing investigation within the civil rights or criminal divisions, Congressman. And I should 

also mention that the Department recently sent a letter to the Senate indicating that at least as of 2007 they had not, the Department, had not been aware of those allegations. 

Mr. CONYERS. All right. And the letter was sent to Senator Kennedy and Senator Whitehouse? 

Mr. AGARWAL. I believe so, perhaps Senator Leahy, yes. 

Mr. CONYERS. So there has been nothing done about them, or it 

looks like there won’t be even an investigation. 

Mr. AGARWAL. Congressman, as I said during my opening statement, the Department takes very seriously any allegations that 

voters are being discriminated against on the basis of their race. 

And I think we have an outstanding record of bringing lawsuits 

where necessary to protect the rights of minority voters. 

22 

Mr. CONYERS. Well, yes, but that doesn’t answer my question. 

That is a wonderful statement on behalf of the Department of Justice. But you are doing nothing in this case. Well, I guess I have 

to interpret for you what you are saying to me, is that because you 

are so concerned about this issue and nothing was done, this must 

not have had any merit to justify an investigation. Is that what you 

are telling me and the way you talk in the Department of Justice? 

Mr. AGARWAL. Congressman, whether any particular factual allegations raise an issue of a violation of Federal law depends on all 

the facts and circumstances. If—— 

Mr. CONYERS. Well, of course. I mean, how else could we operate 

since the Department of Justice has been depoliticized? But what 

has that got to do with what happened in this matter? I am trying 

to find it out. Can we save a little time and you get back to me 

on this matter, since I didn’t get a letter, and you are the first to 

tell me about it? 

Mr. AGARWAL. Congressman, we will be happy to take a look at 

any allegations the congressman thinks raise a possible violation of 

Federal law. 

Mr. CONYERS. Well, I want you to get back to me even if it 

doesn’t raise a violation of law. I am trying to find out what happened to it, not what you think about it. 

Mr. AGARWAL. I will take that back to the Department, Congressman. 

Mr. CONYERS. Okay, thank you very much. You know, I don’t get 

the sense of cooperation. And it may be my attitude and not your 

attitude. But, you know, you can fine tune these responses and 

shade them all you want, but we have got to get to the bottom of 

this problem. 

I understand that you are representing the Department, and you 

have got to come here prepared to defend the Department. I don’t 

expect anything else. But you could save us a little time because 

this isn’t going to work anymore. I don’t know where you testify, 

probably a lot of places. But we have got to get right down to the 

facts, sir. I would appreciate a little more definitive response rather 

than us having to qualify, qualify, qualify, if you can. 

Mr. AGARWAL. Absolutely, Congressman. With apologies, I did 

join the division in 2006. But I will be happy to get the information 

that I can for you. 

Mr. CONYERS. Okay. Well, I joined the Congress in 1965. But nobody holds me responsible for everything that has happened either 

before or since then. And I am not holding you responsible to know 

about everything that happened before 2006, not at all. 

I would like now to turn to my good friend, Mike Pence, from Indiana. 

Mr. PENCE. Thank you, Chairman. 

And again, I would like to welcome our witness. And thank you 

for your service to the country from 2006, before and since. 

A couple quick questions about the Department’s view of the 

Help America Vote Act, specifically here. My understanding—Article 1, Section 4 of the Constitution delegates to the States broad 

authority to regulate the conduct of Federal elections. The Help 

America Vote Act passes Congress in 2002. Is it the Department’s 

judgment that that, in effect, supplanted the preeminence of States 

23 

in the administration of elections? Or is it intended to supplement? 

What is the Department’s view? 

Mr. AGARWAL. Thank you, Congressman. The Help America Vote 

Act sets a certain floor that States need to satisfy. For example, 

they need to meet certain database requirements. They have to 

comply with certain posting requirements for language minorities. 

But States are free to enact other legislation. 

Mr. PENCE. Forgive me for interrupting. So it is very much a 

floor that States are not invited necessarily, but certainly under 

the Constitution are free to have additional requirements on top of 

that basic floor? 

Mr. AGARWAL. That is absolutely correct, Congressman. 

Mr. PENCE. I want to get into what Indiana has done, but also 

some of the Carter-Baker recommendations. But let me say to 

begin with—and I think this is reflecting the tone on both sides of 

this Committee. This is a very serious issue. I don’t take this at 

all lightly. I don’t take the concerns of the Chairman of the Subcommittee or the Chairman of this Committee lightly at all. 

I believe that the integrity of the vote is the integrity of the democracy. And that happens one vote at a time. 

So don’t misunderstand what may be my parochial pride in what 

Hoosiers are attempting to do as in any way diminishing the 

dreadful seriousness we think about which you are charged and 

this Department is charged. That being said, are you familiar with 

the Carter-Baker commission and its recommendations? 

Mr. AGARWAL. I am, Congressman. 

Mr. PENCE. Is it accurate that the Carter-Baker commission convened after the 2004 presidential elections, which, of course, were 

fraught with controversy on these topics, that among those recommendations in post-Help America Voting Act reforms was—and 

I am quoting now, that this bipartisan commission suggested, ‘‘To 

ensure that persons presenting themselves at the polling place are 

the ones on the registration list, the commission recommends that 

States require voters to use the real I.D. card, which was mandated 

in a law signed by the President in 2005’’? Is it accurate to say that 

bipartisan commission recommended photo identification requirements at polling places? 

Mr. AGARWAL. That is certainly my understanding, Congressman. And I would add that those recommendations were also supported by former U.N. Ambassador Andrew Young. 

Mr. PENCE. Former U.N. Ambassador Andrew Young? 

Mr. AGARWAL. Correct, who had been U.N. ambassador under 

President Carter. 

Mr. PENCE. Let me see if I can get an answer specifically. Are 

you aware of any instance where the Justice Department has been 

called upon to investigate allegations of a voter being 

disenfranchised at the polling place as a function of a photo identification law like Indiana’s? 

Mr. AGARWAL. Congressman, that is an excellent question and no 

court has found that a voter has been prevented from voting because of a voter I.D. law. 

Mr. PENCE. Now, in the state of Indiana we have worked hard 

to accommodate and to alleviate any hardship that a photo identification—I am sure you are aware of our law, the brief the Justice 

24 

Department has filed. Indiana has made provision for people who 

can’t afford to pay for a photo I.D. We have also given people who 

don’t have a photo I.D. a chance to file a provisional vote. 

I think it is a week to 10 days that they can then come back and 

present. And with regard to other States, do other States do as Indiana has done and provide those kind of accommodations to ensure that individuals are not disenfranchised? 

Mr. AGARWAL. That is correct, Congressman, they do. I believe 

that most States do have alternate procedures to vote for voters 

who may lack photo identification. 

Mr. PENCE. And so, again, to go back, now, you said to me no 

court has found that an American citizen entitled to vote has been 

deprived of their franchise to vote by virtue of photo identification 

laws like Indiana’s. But let me ask you specifically as my time runs 

out. Are you aware of any—is there any complaint before or allegation before the Justice Department to your knowledge today of an 

individual who says that they were deprived of their right to vote 

because of a photo identification law? 

Mr. AGARWAL. I am not aware of any such allegation that would 

raise a—obviously the Department has limited jurisdiction. I am 

not aware of any information that is presented to the Department 

that would constitute a violation of Federal law. 

Mr. PENCE. Okay. 

Mr. AGARWAL. So the answer is no. 

Mr. PENCE. Okay. Out of courtesy to my colleagues I will yield 

back. I thank the Chairman. 

Mr. CONYERS. Thank you. 

The Chair recognizes the distinguished gentlelady from Florida, 

Debbie Wasserman Schultz. 

Ms. WASSERMAN SCHULTZ. Thank you, Mr. Chairman. 

Welcome to the Committee. I have a couple of questions related 

to the National Voter Registration Act and Section 7. Because as 

you know, and we have been discussing that this morning, that requires States to provide assistance to voters in public agencies 

when they are there for other benefits to register to vote. 

And a study produced by ACORN and Project Vote called Unequal Access: Neglecting the National Voter Registration Act 1995 

to 2007 showed that voter registrations generated from public assistance agencies nationwide have declined 79 percent between 

1995 and 2007 when the National Voter Registration Act was first 

implemented in 2005 and 2006. Here are my concerns. 

In your written statement you assert that since 2006 the voting 

section filed lawsuits containing NVRA claims in Indiana, Maine, 

New Jersey, Philadelphia, and Cibola County, New Mexico. And it 

is my understanding that four of the five lawsuits were filed, not 

to enhance voter registration opportunities, but instead to force 

States to conduct massive purges of their registration lists under 

Section 8 of the NVRA. Is this correct? 

Mr. AGARWAL. Congresswoman, we have filed 10 lawsuits under 

the NVRA during this Administration. Five of them included allegations that States were improperly removing voters from the polls. 

And two of them were under Section 7. 

I should also add, if I could briefly, that in 2007 we sent 18 letters to different States regarding their compliance or lack of comVerDate Aug 31 2005 11:51 Aug 14, 2008 Jkt 000000 PO 00000 Frm 00030 Fmt 6633 Sfmt 6601 H:\WORK\CONST\022608\40923.000 HJUD1 PsN: DOUGA
25 

pliance with Section 7 of the NVRA. And it is my understanding 

that at least two of those States have already begun the process 

of drafting legislation to bring them into compliance. 

Ms. WASSERMAN SCHULTZ. Okay, but excuse me. The purpose of 

Section 7 is not to ensure that States are purging voters, but to ensure that they are registering voters. So why would half the lawsuits that you filed deal with the purging of voters? 

Mr. AGARWAL. Well, Congresswoman, we filed two lawsuits 

under Section 7 during this Administration. We are prosecuting 

one of them. And in 2007 we sent out 18 letters—— 

Ms. WASSERMAN SCHULTZ. But are you also pursuing States to 

ensure that they purge voters that you don’t believe belong on the 

rolls? 

Mr. AGARWAL. We enforce all the provisions of the NVRA. 

Ms. WASSERMAN SCHULTZ. I realize that. But are you more aggressively pursuing States to encourage them to purge voters rather than pursuing Section 7, which ensures the registration of voters? I would think that it would be more important for the Department to be ensuring that we have more qualified registered voters 

on the rolls as opposed to making sure that we aggressively purge 

voters when much of that purging in recent years has shown to be 

overly aggressive and purged voters who were valid and belonged 

on the rolls. 

Mr. AGARWAL. Congresswoman, we are enforcing both Section 7 

and Section 8. 

Ms. WASSERMAN SCHULTZ. I realize that. But are you more aggressive—I mean, I think just looking at the percentage of lawsuits 

that you are pursuing the numbers bear out. If you are only pursuing two Section 7 lawsuits and the others relate to purging of 

voters from the rolls, then I think one could logically conclude that 

you are more aggressively going after States to ensure that they 

purge. Is that the case? 

Mr. AGARWAL. With respect, Congresswoman, I would disagree 

with that characterization because five of the eight Section 8 lawsuits that we have brought do include allegations that the jurisdictions were improperly removing voters. 

Ms. WASSERMAN SCHULTZ. How do you explain the 79 percent decrease in the number of registered voters that were added to the 

rolls if you have been aggressively ensuring that Section 7 is enforced? 

Mr. AGARWAL. Congresswoman, I am aware of that study, and 

that is part of the reason why we sent out 18 letters in 2007 to 

gather information regarding States—— 

Ms. WASSERMAN SCHULTZ. Well, good, I am glad you raised those 

18 letters. When we are talking about the 18 States that you did 

send letters to, that was just a few months ago on August 30, 2007. 

You began that inquiry. 

And you sent letters to Vermont, Alaska, Alabama, Arizona, Connecticut, Hawaii, Iowa, Illinois, Massachusetts, Maine, Michigan, 

Mississippi, Montana, Nebraska, New York, Pennsylvania, Utah, 

and South Carolina. Now, Florida, Texas, and Virginia also ranked 

in the bottom 10, and they did not receive letters. So can you answer why you chose not to send letters to Florida, Texas, and Virginia? And if not, then why have you failed to take measures to enVerDate Aug 31 2005 11:51 Aug 14, 2008 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6601 H:\WORK\CONST\022608\40923.000 HJUD1 PsN: DOUGA
26 

sure that all of, including the worst offenders of Section 7 violations, were included in your pursuit? 

Mr. AGARWAL. Congresswoman, with respect to the letter that we 

sent out, we did not send out letters to every State because we—— 

Ms. WASSERMAN SCHULTZ. You sent out 18. Why not 21? 

Mr. AGARWAL. With respect to some States, Congresswoman, we 

already had and continue to have substantial information, and so, 

there is simply no need to send out letters. 

Ms. WASSERMAN SCHULTZ. Well, wait. Why not Florida, for example? I am a little partial to Florida, as you might imagine, where 

we specifically have had egregious violations of purging voters from 

the rolls, the use of lists that were inappropriately used, of felons 

who turned out not to be felons. Why have you excluded Florida 

and not pursued Florida and sent them a letter? We are in the bottom 10. 

Mr. AGARWAL. Congresswoman, I don’t know the answer to that. 

And with respect, it would be inappropriate for me to comment 

on—— 

Ms. WASSERMAN SCHULTZ. Mr. Chairman, if you could ask the 

witness to answer that question specifically and include it in the 

information that you asked and that the Chairman of the Subcommittee asked for in the next 2 weeks. I would appreciate it. 

Mr. CONYERS. You heard her request. 

Mr. AGARWAL. I will take that back to the Department. But I 

should add that the Department cannot get into, you know, disclosing our deliberative process in determining where we are—— 

Ms. WASSERMAN SCHULTZ. They can certainly tell us why they 

chose to exclude one State that was in the bottom 10 and had 

among the most egregious violations of Section 7. I don’t think that 

is something that you are not permitted to disclose. 

Mr. AGARWAL. I will be happy to take that back to the Department, Congresswoman. 

Ms. WASSERMAN SCHULTZ. Thank you very much. 

I yield back. 

Mr. CONYERS. Thank you very much. 

The Chair recognizes the distinguished gentleman from Minnesota, Keith Ellison. 

Mr. ELLISON. It wasn’t too long ago that John Tanner was here 

before us. And he had been reported as saying that while it is a 

shame that elderly voters may be disenfranchised by new voter I.D. 

restriction at the polls because many of them don’t have driver’s licenses, minorities don’t have to worry about that because they die 

first. Do you remember that? 

Mr. AGARWAL. Yes, Congressman. 

Mr. ELLISON. Was he right? 

Mr. AGARWAL. Congressman, Mr. Tanner has apologized for 

those comments. 

Mr. ELLISON. I didn’t ask you whether he apologized. I asked you 

whether he was right. 

Mr. AGARWAL. Congressman, Mr. Tanner has apologized for 

those comments. 

Mr. ELLISON. Is he right? Is he right or not? 

Mr. AGARWAL. Congressman, Mr. Tanner has apologized for 

those comments. 

27 

Mr. ELLISON. I heard that answer. I am asking you whether he 

is right. Are you declining to answer? 

Mr. AGARWAL. He has stepped down—— 

Mr. ELLISON. I want to ask you if you are refusing to answer my 

question. 

Mr. AGARWAL. Congressman, Mr. Tanner—— 

Mr. ELLISON. Are you refusing to answer my question? 

Mr. AGARWAL. Congressman—— 

Mr. ELLISON. Well, then answer it. 

Mr. AGARWAL. Congressman, Mr. Tanner has apologized for 

those comments. 

Mr. ELLISON. I heard you say that. 

Mr. AGARWAL. He has stepped down from his leadership role at 

the Department. 

Mr. ELLISON. I heard you say that. Was he right? 

Mr. AGARWAL. Congressman, I am not here to throw dirt on John 

Tanner. He was a dedicated—— 

Mr. ELLISON. Well, let me ask you this. Let me ask you this 

question because I am not asking you about whether he is dedicated or not. I am asking you whether he was right. But you don’t 

want to answer. So let me ask you this. When he said that seniors, 

older voters, senior citizens will be disenfranchised by new photo 

I.D. restrictions at the polls, was he right about that? 

Mr. AGARWAL. Congressman, I can tell you what courts have 

found on that point. 

Mr. ELLISON. I want to ask you if he was right or not. Are you 

familiar with the Wisconsin study that was done in June of 2005, 

the University of Wisconsin? 

Mr. AGARWAL. I am not sure that I am, Congressman. 

Mr. ELLISON. Okay. Well, there was a study out there. And you 

are the deputy of the voting rights section, right? 

Mr. AGARWAL. I am a deputy assistant attorney general. 

Mr. ELLISON. Right, right. And I would assume that since you 

know all about other studies, that you had read the literature out 

there. Are you telling me that you are not familiar with the June 

2005 University of Wisconsin study on the impact of photographic 

identifications on voters? 

Mr. AGARWAL. Congressman, there are a lot of studies out there. 

Mr. ELLISON. You don’t know about that one? 

Mr. AGARWAL. There are a lot of studies out there, Congressman. 

Mr. ELLISON. Just tell me whether you know about it or not. 

State yes or no. 

Mr. AGARWAL. Not offhand, I do not know about the study you 

are talking about. 

Mr. ELLISON. Okay. Well, I did. I read that study. And I read the 

one you talked about as well. And in the University of Wisconsin 

study it estimated that 23 percent of the people aged 65 and over 

did not have a photo I.D. Do you dispute that? No, because you 

didn’t read the study. Good point. 

Less than half of the Milwaukee county’s African-American and 

Hispanic adults did not have a valid driver’s license or photo identification compared to 85 percent of their White counterparts who 

did. Are you familiar with that finding? 

Mr. AGARWAL. But Congressman, it is interesting—— 

28 

Mr. ELLISON. Are you familiar with that study or not? Are you 

familiar with that finding? 

Mr. AGARWAL. There have been a lot of findings made by a lot 

of studies. 

Mr. ELLISON. I am asking you about this finding. Just say yes 

or no. Why can’t—— 

Mr. AGARWAL. I am not familiar with that particular study. 

Mr. ELLISON [continuing]. You—thank you. So that would be no. 

All right. Are you familiar with the other finding that stated that 

for young minority adults ages 18 to 24 about 26 percent of the African-American youth and 34 percent of the Hispanic youth had a 

valid driver’s license compared to 71 percent of their White counterparts who did? I guess you don’t know about that one, either? 

Mr. AGARWAL. Congressman, I am familiar with a lot of studies. 

I can tell you what courts have found with respect—— 

Mr. ELLISON. There is no question in front of you right now, sir. 

I am going to ask you to wait until I get my question ready. You 

know, let us just talk about Indiana for a moment. Now, I wrote 

an amicus brief opposing the Indiana statute because it is unconstitutional. Are you familiar with the 24th Amendment? 

Mr. AGARWAL. I believe so. 

Mr. ELLISON. There are a lot of those, too. Do you know that one? 

Mr. AGARWAL. I am familiar with the Constitution, Congressman. 

Mr. ELLISON. What does it say? What does it say? What does the 

24th Amendment say? 

Mr. AGARWAL. It is the poll tax amendment. 

Mr. ELLISON. Good. Right answer. And doesn’t it say that to impose a financial barrier to voting is unconstitutional? 

Mr. AGARWAL. I don’t have the language in front of me, but that 

is the gist of it, correct. 

Mr. ELLISON. Right. And to acquire a photographic I.D. would require some money, right? 

Mr. AGARWAL. Well, in Indiana the State provides for—— 

Mr. ELLISON. How much does it cost? How much does I.D. cost 

in Indiana? 

Mr. AGARWAL. Well, the State does have provisions for free photo 

I.D. 

Mr. ELLISON. I am not asking you about that. I am asking how 

much an I.D. costs in Indiana. 

Mr. AGARWAL. Well, I don’t know the answer to that. But I do 

know that Indiana provides for a free photo I.D. 

Mr. ELLISON. Okay. What do you have to do to get a free I.D.? 

Do you have to state your economic status to get a free I.D.? Do 

you have to state your economic status to get a free I.D. in Indiana? 

Mr. AGARWAL. There is an—— 

Mr. ELLISON. You are the deputy attorney general. You should 

know this. Do you have to state your—under oath state your economic status to get a free I.D.? 

Mr. AGARWAL. There is an indigency exception under Indiana 

law. I am not familiar—— 

Mr. ELLISON. And do you have to state your income to apply 

under that exception? 

29 

Mr. AGARWAL. I am not familiar with all of their requirements 

of the indigency exception. 

Mr. ELLISON. Well, I am, and you do. As a matter of fact, the 

24th Amendment says that economic status cannot be a barrier to 

the ballot box. And to have to swear that you are poor to get a free 

I.D. is requiring that you—is making income a barrier to the ballot 

box. 

The Indiana law is a flagrant violation of the law. And I look forward to it being struck down as unconstitutional. 

Mr. CONYERS. The Chairman of the Crime Subcommittee on Judiciary, Mr. Bobby Scott. 

Mr. SCOTT. Thank you very much. 

I just had a couple of questions and just wanted to ask the witness’ position on what the Department’s position is when you find 

that there has been a campaign to intentionally mislead voters as 

to their eligibility, their right to vote, the location of the polling 

place or otherwise misleading people into possibly missing their opportunity to vote. What is the Department’s position on that? 

Mr. AGARWAL. If there were credible allegations of that, we will 

absolutely look into them. It could very well be a violation of either 

Section 2 of the Voting Rights Act or, depending on the specific 

facts and circumstances, possibly Federal criminal law as well. 

Mr. SCOTT. And so, if people are passing literature suggesting 

the wrong date for the election or the polling place has been moved 

when it, in fact, hasn’t or something like that, that could be a 

criminal violation? 

Mr. AGARWAL. That is correct, Congressman. 

Mr. SCOTT. And do you prosecute such activities? 

Mr. AGARWAL. We certainly have the ability to do so, and we certainly would look into those types of allegations. 

Mr. SCOTT. And any allegation has been brought to the attention 

of the Civil Rights Division, to your knowledge, since you have 

been there? 

Mr. AGARWAL. We have been looking into allegations regarding 

events that occurred during the 2006 mid-term elections. For example, in Orange County some information was sent primarily to minority voters. We immediately contacted the State and local officials, have been working with them. And currently our criminal 

section within the Civil Rights Division is looking at that matter. 

Mr. SCOTT. And so, if there are other examples of that that are 

brought to your attention we can count on the division, the Civil 

Rights Division to follow through both civilly and criminally? 

Mr. AGARWAL. Absolutely, we will take a look at it. 

Mr. SCOTT. If appropriate? 

Mr. AGARWAL. Absolutely. 

Mr. SCOTT. Voter caging—what is the Civil Rights Division’s position on voter caging? 

Mr. AGARWAL. Well, again, as I tried to explain earlier, whether 

a specific set of facts raises a violation of Federal law will depend 

on all the facts and circumstances. It is not illegal simply to challenge voters, out from any other facts. If there is evidence that the 

voters are being targeted because of their race, that could potentially raise issues about violation of Section 2. 

30 

Mr. SCOTT. Is additional legislation appropriate to clarify that so 

that there is no question that a campaign targeting people because 

of their race for challenges would be illegal? 

Mr. AGARWAL. And if any legislation is submitted, the Department will certainly be happy to take a look at it. 

Mr. SCOTT. Does the Civil Rights Division have a position on 

these computer voting machines where you cannot get a recount? 

Mr. AGARWAL. Congressman, with respect to the issue of election 

equipment, it is one that is primarily handled by the election assistance commission. We have a very narrow piece of that pie in 

ensuring under HAVA that election equipment is accessible to voters with disabilities. 

Mr. SCOTT. If it were ascertained that the equipment had discriminatory impact, that is that there are a lot more mistakes or 

under-voting in certain communities than others, would not that 

have a civil rights implication? 

Mr. AGARWAL. Potentially. And if there are such allegations, 

again, we would be happy to take a look at them. 

Mr. SCOTT. Are you familiar with the report produced by the 

Asian-American Legal Defense and Education Fund entitled, 

‘‘Asian-American Access to Democracy and the 2006 Elections’’? 

Mr. AGARWAL. I believe that I have seen that, yes. 

Mr. SCOTT. They allege excessive inquiries for voter identification 

for Asian-Americans that others were not subjected to. If those 

could be sustained, what would the Civil Rights Division’s response 

be? 

Mr. AGARWAL. We would absolutely take a look at bringing a 

lawsuit under Section 2 and/or Section 203 of the Voting Rights 

Act. But we have done so in many instances already. We filed 27 

lawsuits under the language minority provisions of the Voting 

Rights Act. That is more than 60 percent of language minority lawsuits ever brought under the Voting Rights Act. 

I can give you a concrete example, if you like. In Hamtramck, 

Michigan, Bangladeshi and Arab-American voters were singled out 

and had their right to vote challenged. A consent decree was entered into. We extended that consent decree during this Administration. And as a result of our consent decree, the poll workers in 

the state of Michigan now have to train poll workers to prevent 

that sort of thing from happening. 

Mr. SCOTT. My time has expired. Are you following through on 

the allegations in the report? 

Mr. AGARWAL. Absolutely, we are. 

Mr. SCOTT. Okay. 

Mr. Chairman, I would ask unanimous consent that the report 

that I have just referred to be made part of the record. 

Mr. NADLER. [Presiding.] Without objection. 

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Mr. SCOTT. Thank you. 

Mr. NADLER. The gentleman’s time is expired. I now recognize 

the gentleman from North Carolina for 5 minutes. 

Mr. WATT. Thank you, Mr. Chairman. 

It is quite apparent that we are not getting many straight answers here. So I am going to try to just close this out with some 

softball questions since you are not going to answer any hard questions today. It is quite obvious. 

I have been sitting here the whole time, and it is always that 

happened before I got to the Department, or I will take that back 

to the Department, or I will take that under advisement. But getting a straight answer out of you is about as difficult as it is getting one out of the Secretary of Housing and Urban Development 

when he comes before the Financial Services Committee. 

Can you just give me a 1-minute summary of the arguments on 

the constitutionality of the Voting Rights Act extension, what position the Department is taking and what position the other side is 

taking? 

Mr. AGARWAL. Sure. The arguments that were raised by the 

plaintiffs are that the Voting Rights Act as reauthorized in 2006 

is no longer congruent and proportional to the harm that it was designed to address, namely, racial discrimination. And the arguments are that there are fewer Section 5 objections interposed 

today than the recent past than there were in the immediate aftermath of 1965 and the 1982 objections. Our brief and argument focused very—spent a lot of time focusing on the evidence of continued racial discrimination. 

Mr. WATT. Okay. That was a pretty direct answer. I appreciate 

that. Softball question. 

Can you tell me how many folks in the last 8 years that you all 

have been pursuing more aggressively are voter fraud cases? How 

many people have been found guilty of voter fraud? 

Mr. AGARWAL. My understanding from the criminal division is 

that number is 86. 

Mr. WATT. Eighty-six. And so, all of this emphasis that we have 

placed on keeping people from voting who should not be voting nationwide has yielded 86 cases of voter fraud? 

Mr. AGARWAL. That is correct, Congressman. I would add 

that—— 

Mr. WATT. That is not a trick question. I am just summarizing 

what you said. Would it be fair to say that this Department in this 

Administration has put more emphasis on catching people who 

might be trying to vote, although they are not qualified to vote, 

than they put on trying to enhance the ability of people who would 

really like to vote, who for one reason or another have been prevented from voting? 

Mr. AGARWAL. I would disagree with that characterization, Congressman. I think under Attorney General Ashcroft he sought to increase Federal enforcement of all the election laws, both on the 

civil rights side and on the criminal side. 

Mr. WATT. Okay. All right. I guess I would expect you to say 

that, but I don’t think the numbers really support what you are 

saying. And certainly, the sense in communities around the country 

is that the Department has been much, much more obsessed with 

56 

trying to stop people from voting who are not eligible to vote than 

they are trying to enhance the ability of people to vote who are eligible to vote, which was the original and historic purpose of the 

Voting Rights Act. 

But I suppose if that is your emphasis, that is your emphasis. 

And so, we can go on. I am the last person to ask questions here. 

So we can go on to a more balanced picture of that. But I appreciate you coming and testifying. 

Mr. AGARWAL. Thank you, Congressman. 

Mr. NADLER. Thank you. 

And I thank the witness. That is the conclusion of our questions 

in panel one. I thank the witness, Mr. Agarwal. 

And I would ask that our second panel now join us. To save time, 

while we are switching panels, I will read the introductions, which 

I would normally do when everybody has gotten their seats. But I 

will do it now. 

The first witness for our second panel is Gerald Hebert, executive 

director and director of litigation at the Campaign Legal Center, a 

nonpartisan organization that focuses on campaign finance and 

voting rights. For nearly 20 years Mr. Hebert served in many capacities at the Justice Department’s voting section, including as 

acting chief, deputy chief and special litigation counsel. 

Mr. Hebert also has his own private practice where he specializes 

in voting rights and redistricting. Mr. Hebert is an adjunct professor at Georgetown Law School. 

Our second witness is Hilary Shelton, director of the Washington 

Bureau of the NAACP. In that capacity Mr. Shelton advocates for 

the organization’s Federal public policy agenda, including voting 

rights protection. Prior to his position at the NAACP, Mr. Shelton 

served in the Government Affairs Department of the United Negro 

College Fund and the Social Justice Agency of the United Methodist Church. 

Our third witness, we hope—I don’t see him here. But our third 

witness is supposed to—is coming, we hope—is Minnesota State 

Representative Tom Emmer. Mr. Emmer was first elected to that 

office in 2004 and currently serves as the deputy minority leader 

in the Minnesota State House. 

Our final witness this morning is Lorriane Minnite, assistant 

professor of political science at Barnard College where she has 

taught American and urban politics since 2000. Prior to teaching 

at Barnard, Dr. Minnite served as the associate director for the 

Center for Urban Research at Columbia University School of International and Public Affairs. 

She has also conducted extensive research into issues of equality, 

social and racial justice, political participation and voting behavior, 

to name only a few. She is currently working on a book on the politics of electoral rules called, ‘‘The Myth of Voter Fraud,’’ which is 

a subject of some relevance to our hearing today. 

Before we begin—and I see all of our witnesses are here—it is 

customary for the Committee to swear in its witnesses. If you 

would all please stand and raise your right hands to take the oath. 

Do you swear or affirm under penalty of perjury that the testimony you are about to give is true and correct to the best of your 

knowledge, information, and belief? 

57 

ALL: I do. 

Mr. NADLER. Thank you. Let the record reflect that the witnesses 

answered in the affirmative. You may be seated. 

As a reminder, your written statements will be made part of the 

record in its entirety. I would ask that each of you now summarize 

your testimony in 5 minutes or less. To help you stay within that 

time, there is a timing light at your table. When 1 minute remains, 

the light will switch from green to yellow and then to red when the 

5 minutes are up. 

Our first witness is Mr. Hebert. 

TESTIMONY OF J. GERALD HEBERT, EXECUTIVE DIRECTOR 

AND DIRECTOR OF LITIGATION, CAMPAIGN LEGAL CENTER 

Mr. HEBERT. Thank you, Mr. Chairman, for the opportunity to 

testify this morning. 

Mr. Franks, Ranking Member, good morning to you as well. 

I am going to talk about two issues in particular today. The first 

is vote caging and how it has been used to suppress minority votes. 

And second I am going to talk about the Justice Department—— 

Mr. NADLER. Yes, would you turn your microphone on or speak 

into it, one or the other? 

Mr. HEBERT. And second I am going to talk about the Justice Department’s failure to enforce many of the provisions, not only of the 

Voting Rights Act, but other Federal statutes that should be designed to protect the right to vote. 

Mr. NADLER. That is better. 

Mr. HEBERT. Vote caging in this context involves sending out 

non-forwardable or registered mail to targeted groups of voters and 

compiling caging lists of voters for those whose mail is unable to 

be delivered. And although the NVRA prohibits election officials 

from cancelling voter registration merely because a piece of mail 

has been returned, political operatives, primarily in the GOP, have 

used these types of tactics and lists called caging lists for many 

years. 

They have been enjoined time and time again by Federal courts 

in caging operations that have challenged thousands of minority 

and urban voters nationwide on the basis of returned mail. To 

bring these types of schemes to an end will require vigorous prosecution by the Justice Department. But this Justice Department’s 

priorities have shifted over the years. And I ought to know because 

I spent 21 years there, and I was the acting chief of the voting 

rights section for a number of them. 

The current Administration has not only ignored voting caging 

schemes, but has actively worked—as I think the Chairman pointed out—in Ohio to actually give vote caging schemes a boost in the 

Federal courts by actually defending them in Ohio. Now, I know 

that I have limited time today, so I am going to talk in particular 

about a couple of things I think Mr. Watt and perhaps Mr. Scott 

and Mr. Ellison asked questions about, what the Justice Department has done in trying to get a straight answer about are there 

any voting caging schemes under investigation right now. 

And, you know, Mr. Agarwal’s testimony this morning is that he 

wasn’t aware, as I recall, what he said of a single instance or an 

investigation even being conducted. So how could they even posVerDate Aug 31 2005 11:51 Aug 14, 2008 Jkt 000000 PO 00000 Frm 00063 Fmt 6633 Sfmt 6601 H:\WORK\CONST\022608\40923.000 HJUD1 PsN: DOUGA
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sibly know at the Justice Department if there has been any illegality in these voting schemes if they haven’t done any investigations of them? I mean, that is just basic law enforcement 101. 

With regard to vote caging schemes, I personally have written 

letters to the Justice Department bringing to their attention instances in which minority voters have been targeted by political 

operatives. And we don’t know who. They could be Democrats. 

They could be Republicans. 

But Black voters in Dallas, TX, in 2006 after Mr. Agarwal joined 

the Justice Department received a letter that said, ‘‘If you were 

registered by ACORN, they are a fraudulent organization. And if 

you try to vote, you will be prosecuted and arrested at the poll.’’ 

The Justice Department hasn’t even investigated that matter, even 

though it was brought to their attention. 

And there are other examples that I could get to along those 

same lines. And to suggest that the Justice Department didn’t 

know about the Tim Griffin vote caging scheme—they must have 

had their head in the sand because everybody knew about that. It 

was reported on the BBC years ago. And there is a book out about 

it. So it is just incredulous for somebody to assert that. 

With regard to the Department’s enforcement of basic laws that 

are supposed to expand the right to vote, look at the NVRA. The 

NVRA motor voter bill was enacted primarily to get more people, 

to make it easier for people to register to vote. Its primary purpose 

wasn’t to purge voting lists. 

But what the Department of Justice has done—and Mr. Agarwal 

again says, ‘‘Since 2006 we have filed five cases to enforce the 

NRVA.’’ Well, four of them have been to purge people, and one of 

them have been to increase voter registration for people who are 

receiving public benefits. And that actually takes the law and turns 

it on its head. 

The final thing I would like to say is that the issue of voter I.D. 

Now, I filed an amicus brief in the Indiana case attacking the voter 

I.D. on behalf of 29 scholars and historians across the country who 

said that basically a lot of good government reforms, which is what 

I think a voter I.D. bill is—and by the way, let us just call it like 

it is. The Justice Department was not asked to file a brief in the 

Indiana voter I.D. case. The most divisive issue of our time in the 

area of voting rights right now is voter I.D. And the Bush administration politically jumped into that case. 

Sure, they have an interest in Federal voting rights. But they 

didn’t have to do it. And they certainly could have presented a 

more balanced argument for it. 

But the fact is—and I will close with this—you have a better 

chance of being struck by lightening than you do finding a person 

impersonating another at the poll. And a photo I.D. isn’t going to 

correct that one bit. You talk to any law enforcement officer, and 

they will tell you the technology is out there to make fake I.D.s as 

easy as the real ones. 

Thank you, Mr. Chairman. And I will look forward to any questions that come later. 

[The prepared statement of Mr. Hebert follows:] 

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PREPARED STATEMENT OF J. GERALD HEBERT


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Mr. NADLER. Thank you. 

Mr. Shelton is recognized for 5 minutes. 

TESTIMONY OF HILARY SHELTON, DIRECTOR, 

WASHINGTON BUREAU OF THE NAACP 

Mr. SHELTON. Thank you very much, Mr. Chairman. And good 

morning. As you mentioned, my name is Hilary Shelton. And I am 

director of the NAACP’s Washington bureau. The NAACP currently 

has more than 2,200 membership units with members in every 

State across the union. 

I would like to begin by thanking the Chairman, Chairman Conyers, many other Members of the Committee for holding this hearing today. The right to vote is clearly the cornerstone of our Nation’s democracy. 

Throughout our Nation the NAACP and countless Americans 

have fought and died to protect the right of people across the globe 

to cast a free and unfettered ballot and to have that vote counted. 

We owe it to these men and women and their families to ensure 

that the right to vote is protected here at home. 

Sadly, our struggle is not yet complete as there are still voter 

suppression throughout the United States. What is even more disturbing than the continued existence of the Americans being denied 

the constitutional right to vote, however, is the fact that for the 

last 8 years the U.S. Department of Justice has not been our partner in trying to stem voter suppression. In fact, given the fact that 

the U.S. Department of Justice filed an amicus brief in the case of 

CRAWFORD V. MARION, Indiana County Election Board, which the 

Supreme Court heard just last month, many would argue that the 

current Administration is actually working against the goals of all 

Americans enjoying their constitutional right to vote. 

And as any major national civil rights organization can tell you, 

the number of voter suppression cases brought by the current Department of Justice does not even begin to reflect the number of 

complaints that we receive from the folks across the Nation who 

believe their rights have been violated. In fact, although the number of voting rights violations is very difficult to measure, the 

NAACP as well as representatives from almost every civil rights 

voting rights organization all report an increase in the number of 

Americans, primarily racial and ethnic minority Americans, who 

say they have been denied their constitutional right to register and 

cast their votes. 

Furthermore, attempts to pass laws at the State and local levels 

as well as at the Federal level that restrict or effectively shut out 

entire segments of the population are on the increase throughout 

the Nation. And they are not being challenged by the current Administration. 

Specifically, the NAACP has seen a dramatic increase in the 

number of cases in which people have registered to vote believing 

having been told that they have then done everything correctly 

only to be turned away from the voting booth on election day and 

being told that they are not on the rolls. We know that the 2000 

election in Florida debacle did over-zealously purge from the rolls 

especially in neighborhoods with heavy concentrations of racial and 

ethnic minorities can be a standard trick by unscrupulous or corVerDate Aug 31 2005 11:51 Aug 14, 2008 Jkt 000000 PO 00000 Frm 00086 Fmt 6633 Sfmt 6601 H:\WORK\CONST\022608\40923.000 HJUD1 PsN: DOUGA
81 

rupt election officials trying to suppress a certain segment of the 

voting public. 

Now it appears that not even putting these people on the rolls 

is the new popular tactic. Another tactic that is being used to keep 

racial and ethnic minority voters and low-income voters out of the 

ballot box is the enactment by legislatures and governors sworn to 

protect the rights of all their residents of laws to require government-issue photo identification documents before voting. 

While supporters of these initiatives purport to be combating 

voter fraud, a problem which as numerous studies have shown is 

not really a problem, what these laws are, in fact, doing is creating 

a barrier to keep out up to 20 million Americans who do not have 

government-issued photo I.D.s out of the ballot booth. And I would 

hasten to add that a disproportionate number of these people who 

do not have government-issued I.D.s are racial, are ethnic minorities, are low-income Americans. 

Finally, I would like to talk for just a brief moment about an 

issue that the NAACP was intimately involved in crafting. That is 

the 2002 Help America Vote Act. This legislation, which was enacted in response to the election debacle of 2000, has been underfunded and under-supported since its enactment at almost every 

turn. While the NAACP and other civil rights organizations strongly supported HAVA in part because it was seen as a sign that the 

Federal Government took voting rights protection seriously, the 

fact that it has been largely ignored is discouraging, to say the 

least. 

To close, I would like to share with the Subcommittee some 

thoughts shared by the NAACP and the Mexican-American Legal 

Defense and Education Fund, that is MALDEF, one of the premier 

civil rights organizations investigating and protecting the rights— 

invested in protecting the rights of Latino voters. 

Racial and ethnic minority voters require that the civil rights Department of the U.S. Department of Justice be fully staffed with 

well-qualified attorneys and experts who are committed to addressing voter suppression and protecting minority voter rights. While 

the NAACP and MALDEF and other civil rights organizations frequently bring legal actions on behalf of racial and ethnic minorities 

whose voting rights have been infringed, private individuals and 

organizations lack sufficient resources to guarantee free and fair 

elections for all voters nationwide. 

Mr. Chairman, Members of the Subcommittee, the disenfranchisement of voters, voters who are disproportionately racial and 

ethnic minority Americans, due to the mismanagement of registration bases and the restrictive laws and regulations that are akin 

to discriminatory poll taxes present a much larger threat to our national fabric than the many so-called threats that we have been 

spending untold billions of dollars defeating. 

Unless Americans, all Americans, feel that they are vested in our 

Nation and that they have a voice in their government, the promise 

and security of democracy is hollow and left unfulfilled. 

Furthermore, I would argue that the inaction of the U.S. Department of Justice’s department of civil rights to address voter suppression is not only unethical, immoral, and counterproductive, it 

is flat out wrong. Thus, I again thank the Subcommittee for holdVerDate Aug 31 2005 11:51 Aug 14, 2008 Jkt 000000 PO 00000 Frm 00087 Fmt 6633 Sfmt 6601 H:\WORK\CONST\022608\40923.000 HJUD1 PsN: DOUGA
82 

ing this hearing and inviting the NAACP to testify. And I look forward to your questions. 

[The prepared statement of Mr. Shelton follows:] 

PREPARED STATEMENT OF HILARY O. SHELTON

Good morning. My name is Hilary Shelton and I am the Director of the Washington Bureau of the NAACP, our Nation’s oldest, largest and most widely-recognized grassroots civil rights organization in the United States. The NAACP’s Washington Bureau is the legislative and public policy arm of the NAACP. We currently 

have more than 2,200 membership units with members in every state across the 

country. 

I would like to begin by thanking and commending the Subcommittee for holding 

this hearing. The right to vote is the cornerstone of our Nation’s democracy. 

Throughout our history, countless Americans have fought and died to protect the 

right of people across the globe to cast a free and unfettered ballot and to have that 

vote counted. We owe it to these men and women and their families to ensure that 

the right to vote is protected here at home. 

The NAACP has been in existence for almost 100 years, and since our inception 

we have fought for equal voting rights for all Americans. Sadly, our struggle is not 

yet complete as there is still voter suppression throughout the United States. 

What is even more disturbing than the continued existence of Americans being 

denied their Constitutional right to vote however, is the fact that for the last eight 

years the U.S. Department of Justice has not been our partner is trying to stem 

voter suppression. 

In fact, given the fact that the US Department of Justice filed an amicus brief 

in the case of Crawford v. Marion County Election Board, which the Supreme Court 

heard just last month, many would argue that the current Administration is actually working against the goal of all Americans enjoying their Constitutional right 

to vote. 

And as any major, national civil rights organization can tell you, the number of 

voter suppression cases brought by the current Department of Justice does not even 

begin to reflect the number of complaints that we receive from folks across the Nation who feel their rights have been violated. 

In fact, although the number of voting rights violations is very difficult to measure, the NAACP, as well as representatives from almost every other civil and voting 

rights organization, all report an increase in the number of Americans—primarily 

racial and ethnic minority Americans—who say that they have been denied their 

Constitutional right to register and vote. 

Furthermore, attempts to pass laws at the state and local levels, as well as at 

the federal level that restrict or effectively shut out entire segments of the population are on the increase throughout the Nation—and they are not being challenged 

by the current Administration. 

Specifically, the NAACP has seen a dramatic increase in the number of cases in 

which people have registered to vote, believing or having been told that they have 

done everything correctly, only to be turned away from the voting booth on Election 

Day and being told that they are not on the rolls. 

We know from the 2000 Florida election debacle that over-zealous purging of the 

rolls, especially in neighborhoods with heavy concentrations of racial and ethnic minorities, can be a standard trick by unscrupulous or corrupt election officials trying 

to suppress a certain segment of the voting public. Now it appears that not even 

putting these people on the rolls is the new popular tactic. 

Another tactic being used to keep racial and ethnic minority voters and low-income voters out of the ballot box is the enactment, by legislatures and governors 

sworn to protect the rights of all of their residents, of laws to require governmentissued photo identification documents before voting. 

While supporters of these initiatives purport to be combating ‘‘voter fraud,’’ (a 

‘‘problem’’ which, as numerous studies have shown, is not really a problem), what 

these laws are in fact doing is creating a barrier to keep the up to 20 million Americans who do not have government-issued photo IDs out of the ballot booth. And I 

would hasten to add that a disproportionate number of these people who do not 

have government-issued IDs are racial or ethnic minorities or low-income Americans. 

Finally, I would like to talk for a brief moment about an issue that the NAACP 

was intimately involved in crafting, the 2002 Help America Vote Act (HAVA). This 

legislation, which was enacted in response to the election debacle of 2000, has been 

under-funded and under-supported since its enactment at almost every turn. 

83 

While the NAACP and other civil rights organizations strongly supported HAVA 

in part because it was seen as a sign that the federal government took voting rights 

protections seriously, the fact that it has been largely ignored is discouraging, to say 

the least. 

To close, I would like to share with the subcommittee some thoughts shared by 

the NAACP and the Mexican American Legal Defense and Education Fund, 

MALDEF, one of the premier organizations invested in protecting the rights of 

Latino voters. Racial and ethnic minority voters require that the Civil Rights Department of the U.S. Department of Justice be fully staffed with well-qualified attorneys and experts who are committed to addressing voter suppression and protecting 

minority voters’ rights. 

While the NAACP, MALDEF and other civil rights organizations frequently bring 

legal actions on behalf of racial or ethnic minorities whose voting rights have been 

infringed, private individuals and organizations lack sufficient resources to guarantee free and fair elections for all voters nationwide. 

Mr. Chairman, members of the subcommittee, the disenfranchisement of voters, 

voters who are disproportionately racial or ethnic minority Americans due to the 

mismanagement of registration bases, and restrictive laws and regulations that are 

akin to discriminatory poll taxes presents a much larger threat to our national fabric than many of the so-called ‘‘threats’’ that we have been spending untold billions 

of dollars defeating.y 

Unless Americans, all Americans, feel that they are vested in our Nation and that 

they have a voice in their government, the promise and security of democracy is hallow and left unfilled. 

Furthermore, I would argue that the inaction of the US Department of Justice’s 

Department of Civil Rights to address voter suppression is not only unethical, immoral and counter-productive, it is just flat-out wrong. Thus I again thank the subcommittee for holding this hearing and for inviting the NAACP to testify. 

Mr. NADLER. I now recognize Mr. Emmer for 5 minutes. 

TESTIMONY OF TOM EMMER, DEPUTY MINORITY LEADER, 

MINNESOTA STATE HOUSE OF REPRESENTATIVES 

Mr. EMMER. Thank you, Mr. Chairman, Ranking Member 

Franks. Thank you for the invitation here today. My name is Tom 

Emmer, and I am a State representative from the state of Minnesota. 

The United States Congress has enacted numerous requirements, 

including registration and identification requirements designed to 

increase the number of citizens who register to vote while simultaneously protecting the integrity of the electoral process. Some of 

these initiatives include the Help America Vote Act of 2002, which 

requires voters to provide proof of identification before registering 

or casting their first ballot, providing the attorney general with the 

authority to prosecute voter fraud in Federal elections, requiring 

acceptable forms of identification under the Help America Vote Act, 

including a current and valid photo identification or a current utility bill, bank statement, government check, paycheck, or a government document that shows the name of the voter. 

The Help America Vote Act also provides that States may provide more strict rules and regulations regarding voter identification. Since the enactment of this act, several States, including some 

well-publicized cases and challenges in Georgia and Indiana, have 

proposed voter identification bills. The bills were specifically designed to require photo identification. 

In a world in which we have much turmoil and such contested 

elections, it is imperative to maintain the integrity of the electoral 

process and thus, the public confidence in that process. Voters 

want to know that their vote counts and will not be canceled out 

by a fraudulent vote. We simply must have something in law that 

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allows us to confirm that we are who we say we are on the day 

of the election. 

The American public agrees with this concept. In fact, national 

polling shows that almost 80 percent of American citizens agree 

that photo identification should be required to verify identify prior 

to voting. 

Voter identification laws are designed to prevent voter fraud in 

our elections. There is no question that we have a problem with 

fraud. 

The Carter-Baker commission made such a determination in its 

2004 report. In addition, there are numerous examples from other 

States that demonstrate how fraud has played a role in elections. 

We as elected officials are slowly realizing the destructive force this 

has on public confidence in the strength of their vote and the outcome of the election. 

In 2004, for example, the Indiana Supreme Court in the case of 

PABEY V. PASTRICK found that widespread fraud had rendered election results ‘‘inherently deceptive and unreliable.’’ The Indiana Supreme Court invalidated a 2003 East Chicago mayoral primary 

based on evidence of rampant absentee voter fraud, which included 

the use of a vacant lot or former address in casting of ballots by 

nonresidents. 

At the same time, the state of Indiana was experiencing highly 

inflated voter registration rolls as a result of 35,000 deceased individuals remaining on statewide voter rolls. Incredibly, the list of 

registered voters in 2004 was actually inflated by some 41 percent, 

including well over 200,000 duplicate voter registrations. 

In fact, on April 7, 2005, the United States Department of Justice informed the Indiana secretary of state that numerous counties 

had registration totals that exceeded their voting age population. 

This is an important national issue. It is not a political issue and 

should not be. 

Despite efforts to the contrary, some people are selecting to turn 

photo identification into a political issue that destroys the very nature of election integrity. Protecting the integrity of our elections 

and ensuring the validity of the votes cast and the electoral process 

is important to all of our children and communities, is important 

to the future of our freedom and our democracy. 

Those that are challenging these laws that voter photo identification somehow violates the 1st and 14th Amendment to the United 

States Constitution because it imposes an unwarranted burden on 

the right to vote. In fact, they take this position despite their inability to identify any concrete harm stemming from a potential 

photo identification voter law. In fact, despite the predictions of 

widespread disenfranchisement resulting from the photo I.D. regulation in Georgia, no plaintiff in any Georgia litigation, either as 

an individual or as an organization demonstrated any injury. 

The fact is that despite apocalyptic assertions of wholesale voter 

disenfranchisement, there is not a single piece of evidence of any 

identifiable registered voter who would be prevented from voting. 

It is commonplace in virtually every polling place in America that 

voters are asked to identify themselves before they vote. 

A State’s interest in deterring voter fraud before it happens is 

important. As the 7th Circuit Court of Appeals has recognized, inVerDate Aug 31 2005 11:51 Aug 14, 2008 Jkt 000000 PO 00000 Frm 00090 Fmt 6633 Sfmt 6601 H:\WORK\CONST\022608\40923.000 HJUD1 PsN: DOUGA
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person voter fraud is extremely difficult to detect. Without a photo 

I.D. requirement for in-person voting, it is nearly impossible to 

catch an imposter. 

As the pre and post-voter I.D. study and analysis has established 

in Indiana after the implementation of the Indiana voter I.D. law, 

there was an overall county level turnout increase of almost 2 percentage points. There was an increase in relative turnout for counties with a greater percentage of minority and poor populations. 

There was no significant impact on turnout in counties with a 

greater percentage of less educated or elderly voters. And as has 

been previously been noted today, there was a significant increase 

in turnout of Democrats. 

Thank you for inviting me, again, here today. And I hope that 

this Committee will give serious consideration to what should not 

be a political issue. And that is proving who we are when we step 

up to the polling place. 

[The prepared statement of Mr. Emmer follows:] 

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Mr. NADLER. Thank you. 

Professor Minnite is recognized for 5 minutes. 

TESTIMONY OF LORRAINE C. MINNITE, Ph.D., 

ASSISTANT PROFESSOR, BARNARD COLLEGE 

Ms. MINNITE. Thank you, Chairman Nadler. 

And thank the Members of the Committee for inviting me to testify today. I have submitted a written testimony that explains in 

a lot of detail the research that I have been doing over the last several years on this question of voter fraud. And I would like to just 

take the few minutes that I have here to highlight a couple of 

points. 

One is the purpose of this research. As a political scientist, we 

study voting behavior. And the prevailing theories of voting suggest 

that, in fact, it may not even be rational to vote, let along to vote 

twice. So when the rhetoric of fraud really got ramped up after the 

2000 election, I thought it was an interesting puzzle. 

On the one hand, we were hearing lots and lots of stories of all 

kinds of fraud, of the system being very vulnerable to fraud, of 

there being an epidemic of voter fraud. And at the same time, the 

academic side, I had colleagues looking at me and asking why are 

you studying this. There is very little academic research on it. And, 

in fact, it doesn’t make sense. 

The incentives have to be huge for an individual voter to commit 

fraud. In the absence of a conspiracy, there is no rationale for a 

voter to take the effort to commit a felony crime to vote twice or 

to vote in the name of someone else. So it was an interesting puzzle. That is how I approached it. 

And I began by trying to look at the empirical record. And I want 

to address what I think are some mischaracterizations and misunderstandings about what that record shows. I want to focus specifically on the Federal Government’s effort here to root out voter 

fraud. 

We heard the number 86 people. The research that I have been 

able to do—and it has been quite difficult actually to get the data 

from the Justice Department. But the research that I have done to 

look at the success of the ballot access and voting integrity initiative which the Justice Department began in 2001, 2002 shows that 

between October 2002 and September 2005 there were only 40 voters indicted for any kind of a crime related to illegal voting. And 

I have supplied in the written testimony a table that shows for you 

a breakdown of the 95 indictments that the Federal Government 

brought under this program, which was to address voter fraud and 

voter intimidation. 

And when you dig into the data—because you have to dig into 

it—you find that only 40 of those people actually were voters. Others were government officials, campaign workers, election works, 

and so forth. 

So looking at those 40 voters, there were 26 convictions or guilty 

pleas. That is a conviction rate of 65 percent, which is quite low 

for the Justice Department. 

When we look at those voters and those who were convicted, we 

see that one person was convicted for registration fraud. That person did not even vote. And, in fact, that man was deported back 

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to Pakistan for registering to vote inadvertently when he went to 

redo his driver’s license. 

There were 20 people who voted who were ineligible. And these 

were people who had felony convictions and had not had their civil 

rights restored and also noncitizens, 15 of those and then five people for multiple voting. And most of this occurred over the Kansas, 

Missouri border. 

So the record, the empirical record of the Justice Department 

here where they have made a vigorous effort to root out voter fraud 

has produced very, very little. And in my testimony I mention 

other things that I have looked at. I have made an extensive search 

to try to look at State records here. I have used open records requests in the States to request data from every attorney general, 

secretary of state. I wrote letters to 2,700 district attorneys asking 

for data on this. 

And I am convinced that there is no problem with individual voters trying to commit voter fraud. So this first point here is that we 

must look at this data carefully. And we should look at what voters 

are doing because one of the consequences of feeding what I think 

really has become a propaganda effort to convince the American 

public that voter fraud is a problem is that there is a lot of confusion about who is committing fraud and where the system is vulnerable. And it is worth taking the time to analyze that. 

The other point that I want to make and to conclude quickly is 

that contrary to what has been suggested here, there is no evidence 

that I.D. laws increase confidence in voting or increase voting. You 

can have an increase in turnout and you can suppress the vote at 

the same time. The question in Indiana is how much larger the 

turnout might have been had the photo I.D. law not been in place. 

So I will conclude with that comment. 

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Mr. NADLER. I thank the witnesses. I will begin by recognizing 

myself for 5 minutes. 

Ms. Minnite, what do you mean when you say that there is no 

evidence that I.D. laws increase confidence in voting? What do you 

mean by confidence in voting? 

Ms. MINNITE. Well, this is a term that has been used a lot in the 

media. It can be taken from public opinion polls which ask people 

about whether or not they think their vote is going to count and 

so forth. So most of when people say confidence of voting, I think 

usually they are trying to rely on public opinion polls that ask people questions that way. 

Mr. NADLER. Thank you. 

Mr. Emmer, you talked about thousands of—I think you said 

thousands of people who were not removed from the rolls when 

they died or when they moved. Is there any evidence that any of 

these people voted after they died? 

Mr. EMMER. I don’t have any. 

Mr. NADLER. Thank you. So now, I mean, this is not a revelation 

that most States—when someone dies and moves out of the State 

their name remains on the rolls for a few years. But there is no 

evidence. And now an attempt has been made, including by you in 

your testimony, to point to that as if it is some great problem. But 

is there any evidence that there has been any substantial voting 

by people whose names remain on the rolls because they died or 

voting in two States because they moved from one State to another 

and two counties because they moved from one State? 

In other words, when you move from place a to place b, you register in place b. You don’t go normally and deregister in place a. 

But is there any evidence that there is a problem with that, that 

people, in fact, have tried to vote where they used to live as well 

as where they live or that people voted for them after they died? 

Mr. EMMER. Yes. 

Mr. NADLER. What evidence is that? 

Mr. EMMER. Well, I started to read it to you. It was the mayoral 

primary in Chicago in Indiana. And then there is a couple of other 

instances. 

Mr. NADLER. Excuse me. And how many people allegedly voted 

who were dead? 

Mr. EMMER. Dead, I don’t know because it wasn’t—— 

Mr. NADLER. All right. How many people allegedly voted who, in 

fact, had moved out of Chicago, let us say? 

Mr. EMMER. One hundred and fifty-five invalid absentee votes is 

what the research that I did showed. 

Mr. NADLER. Invalid absentee votes, which were counted or 

which were invalidated? 

Mr. EMMER. That invalidated it because the race was determined 

based on a difference of 228 votes. 

Mr. NADLER. No, no, no. When you cast an absentee ballot, they 

validate the vote or not because it is counted. Were these ballots 

counted? 

Mr. EMMER. Originally they were. It was subsequent after a 

court challenge, my understanding is. That is when the court determined—— 

Mr. NADLER. So ultimately, they weren’t counted in the election. 

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Mr. EMMER. Excuse me? 

Mr. NADLER. So ultimately, they were not counted in the election. 

Mr. EMMER. Ultimately, the election was determined to be 

flawed, and it was thrown out, the results. 

Mr. NADLER. The Chicago mayoral election? 

Mr. EMMER. The East Chicago mayoral primary in Indiana, yes, 

sir. 

Mr. NADLER. East Chicago? Okay. 

Mr. EMMER. I am sorry if I confused the Chairman. 

Mr. NADLER. Mr. Hebert, could you comment on this? Is there 

much evidence—or Ms. Minnite? I am not sure who to ask—that 

lots of people vote, that there is a substantial problem of people impersonating dead people voting or impersonating someone else voting. 

Mr. HEBERT. Well, first of all, there is not a voter fraud epidemic 

out there of people impersonating others. As I am sure every Member of this Committee knows, it is hard enough to get people to 

show up to the polls once, let alone trying to convince people to 

show up twice and vote for somebody else. 

Let me just say that with regard to Mr. Emmer’s case, there are 

cases out there that involve voter fraud occasionally being committed by somebody in connection using absentee ballot. But a 

photo I.D. requirement doesn’t have any impact on an absentee ballot. Those are votes that come in by mail, and there is no photo 

I.D. involved there. So often—— 

Mr. NADLER. Let me ask you a different question. 

Eighty-six voting fraud cases that the Department prosecuted, 

Ms. Minnite. How many of them involved impersonations that a 

photo I.D. card might catch of those 86? 

Ms. MINNITE. Well, I am not sure exactly where the 86 number 

comes from. But if you look at the 95 indictments brought between 

2002 and 2005, none of them involved voter impersonation. 

Mr. NADLER. Okay. None of them? 

Mr. Emmer, you argue that we have this epidemic of fraud. How 

many cases have been convictions? How many convictions have we 

had of people impersonating other people? 

Mr. EMMER. Mr. Chairman, with all due respect, that wasn’t my 

argument. My problem here is that there is—— 

Mr. NADLER. Well, wait a minute. Your argument is that a voter 

I.D. card is essential to prevent fraud. 

Mr. EMMER. Yes, it is. 

Mr. NADLER. Aside from impersonation, what other kinds of 

fraud would a voter I.D. card prevent? 

Mr. EMMER. The voter I.D. card—and I will give the example 

that Mr. Hebert said—it would have nothing to do with absentee 

ballots. In fact, this is why these cases are so rare. Without a voter 

I.D. card, Mr. Chairman, with all due respect, you can’t determine 

whether or not fraud has occurred. 

Mr. NADLER. Wait a minute. In an absentee ballot, someone 

signs a ballot, mails it in. They compare it to the records they have. 

How does a voter I.D. card have anything to do with that process? 

And how could it? 

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Mr. EMMER. Well, after the fact, you would use—we have in Indiana and Georgia, I believe it is, you get 2 days when you do a provisional ballot, much like an absentee ballot, to confirm that, in 

fact, you are who you say you are when you filled out the ballot. 

Mr. NADLER. Wait a minute. But in a provisional ballot or an absentee ballot—an absentee ballot you mail it in. I am going to be 

in Russia. You mail it in, and you fill out the information. I am 

so and so, I live at such and such address. I am a registered voter, 

and so forth. 

They take that. They compare it to the records. They compare 

your signature. In a provisional ballot where for some reason your 

information is not at the polls, you sign an affidavit in which you 

say I am so and so, I live at such and such an address, signed so 

and so, and I am entitled to vote, signed so and so. 

They take that after the election, after election day, I should say. 

They take that. They take it to the board of elections. They compare that information with the information they have. They compare the signatures. And they either say it is the same person or 

it is not, and they count the ballot or they don’t. In either case, how 

would a voter I.D. photo I.D. card come into the picture one way 

or the other? 

Mr. EMMER. In the example that you just gave me, Mr. Chairman, it would be, in fact, if there is any necessary investigation 

after comparing the actual absentee ballot to the signature on the 

voter rolls. If somebody determined that they needed to further investigate whether or not that signature was valid. 

Mr. NADLER. But once you compared the signatures, there is no 

further investigation. 

Mr. EMMER. Excuse me. If somebody determines that that is satisfactory, you are right. You are correct, sir. 

Mr. NADLER. And is someone determines it is unsatisfactory, now 

you are dealing with a criminal allegation that someone forged 

your signature. A photo I.D. card is irrelevant. You call in the person. You say prove you are so and so. You don’t need the card at 

that point. It wouldn’t help at that point. 

Mr. EMMER. Well, it may or may not. I will agree with the Chairman. 

Mr. NADLER. So the only thing that it would help then, aside 

from this situation where it wouldn’t help in 99.9 percent of the 

cases, is if someone shows up to vote and says I am Joe Smith 

when, in fact, he is Joe Jones. How many proven instances of that 

do we have? 

Mr. EMMER. Well, and that is the problem. Therein lies the problem. Without a photo I.D., how would you ever know? 

Mr. NADLER. Mr. Hebert, could you comment on that? And then 

I will yield the floor. 

Mr. HEBERT. Yes. This is a common thing we hear. Prosecutors 

have all kinds of resources. First of all, when you go to the polls 

to vote, for the most part, the people who run the polls are neighborhood people who live in your neighborhood who know you. 

And so, when you come back, if you were to claim that you are 

so and so there to vote and you attempt to vote and you impersonate somebody else, and then that person comes to vote later in 

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ready voted, that person probably would vote a provisional ballot. 

And the district attorney would then have an opportunity to go 

ahead and prosecute the person who showed up first. 

Then you think to yourself, who is going to take that risk, given 

the current felony statutes that are on the books, to go and commit 

voter fraud with eye witnesses, like voter officials who are going to 

witness you committing the voter fraud, rather than commit it 

through some more subtle means like absentee voting. 

Mr. NADLER. Thank you. My time is expired. 

I now recognize the distinguished Ranking Member of the Subcommittee. 

Mr. FRANKS. Well, thank you, Mr. Chairman. Mr. Chairman, you 

know, I just want to repeat what has been said many times here 

today, that the process of our voting and the process of our elections are critically important to this country because our confidence, and not only our confidence, but their actual accuracy is 

a foundation of the Nation. 

With that said, I would readily admit to the majority that sometimes when I hear about voter fraud, there are a lot of instances 

that you hear about, and it does seem that the evidence indicates 

that that is less than what you hear about in the public. If you 

take polls, there are a lot of people that are concerned about voter 

fraud. And maybe it is less than what people think. 

But isn’t that the point? Part of the issue here really is about the 

public’s understanding that their elections are secure. I think the 

testimony here has been anywhere from 40 to 86 indications of 

voter fraud. And yet the testimony here today has been that there 

has not been one court that has ever ruled that anyone was prohibited from voting because they didn’t have the proper I.D. based on 

those allegations. 

And so, you know, I don’t discount the majority’s concern about 

some type of I.D. card, trying to make sure that that doesn’t prevent someone from voting who has a right to. So consequently, I 

think it is unfair to discount the concern over voter fraud. 

But with that said, I think there is a different issue here involved as well. I think the people of this country have a right to 

believe that their elections have been made among those who were 

who they said they were, as Mr. Emmer has said. 

And there is another issue sometimes. You know, I mean, in 

Mexico, the last election they had they had two people pretending 

they were president for a long time because there wasn’t confidence 

in the system. And there wasn’t any way to be able to put that out 

of people’s minds. And I think that a voter I.D. that was universally accepted is one way to create confidence in the system. 

But if I could draw everyone’s attention to two letters that were 

sent about a month ago that I think illustrates the confusion that 

can take place. These were letters that were sent to the Democratic 

party of the state of Nevada. 

And I want to ask the panelists whether they think that there 

is any potential Federal election law based on the following allegations made by the Clinton campaign for President. The allegations 

were that caucus chairs, who obviously supported Mr. Obama were, 

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sons as Obama votes; and number three, were deliberately counting young children as Obama votes. They also went on to say many 

Clinton supporters were threatened with employment termination 

or other discipline if they caucused for Senator Clinton. 

Now, if those allegations are true—maybe they are just campaign 

rhetoric. But if they were true, Mr. Emmer, would they be potential Federal election campaign violations? 

Mr. EMMER. I would say yes. Well, the answer is yes. 

Mr. FRANKS. Yes. Well, let me shift gears, and let us give the 

Obama, Clinton campaign their fair due here. This is allegations 

made by the Obama campaign. And these are quotes. This is written to the Nevada state Democratic party in written form. 

Those Hillary people closed the doors on our people, and we had 

to call the cops in some precincts to have the locks cut from the 

doors. They slipped people in the back doors. They sent people 

home at 11:30 when it was illegal to prevent people from voting before noon. 

In precinct 21 a Democratic worker who was clearly for Hillary 

refused to register Obama supporters and said she was only registering Hillary supporters. Another one—almost immediately I 

was told by a couple of other Obama precinct leaders that the Hillary people were turning our supporters away by asking to see 

their I.D.s and telling them they weren’t valid. 

And, Mr. Emmer, I ask you a question again. If those allegations 

were true—and again, I have no idea. I mean, it sounds to me like 

just campaign bickering. But if they were true, would they be potential Federal elections campaign violations? 

Mr. EMMER. I believe they would. 

Mr. FRANKS. Yes. Well, I think the point I am making here is do 

you think then—and I will give others a chance to respond. Do you 

think that there are potential—if that is true, do you think that a 

universal I.D. card that was universally accepted would have at 

least been able to dispel those kinds of allegations to some degree? 

Mr. EMMER. It may have. And, Ranking Member Franks, what 

I would add is the public is asking for this. Eighty percent of Americans are asking for it. So it is not just the example that you are 

giving which would warrant it, but the public across all different 

races, religions, creeds, walks of life is asking for this. 

Mr. FRANKS. Well, my point exactly. 

Mr. Chairman, I am going to yield back as my light is on. I am 

sorry. 

Mr. NADLER. Thank you. 

I now recognize the gentleman from Virginia for 5 minutes. 

Mr. SCOTT. Thank you, Mr. Chairman. I couldn’t help but notice 

the fair and balanced approach that the gentleman from Arizona 

used. He criticized all of the Democrats. That is, I guess, his view 

of bipartisanship. 

Anyway, Representative Emmer, we have been warned by the old 

adage to avoid situations where the cure is worse than the disease. 

We have heard about the handful of fraudulent cases that would 

possibly be cured with voter I.D. How many people would be prevented from voting because they couldn’t get their paperwork 

straight in order to register? 

Mr. EMMER. Mr. Chairman, Member Scott, none. 

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Mr. SCOTT. I am sorry? 

Mr. EMMER. None, sir. 

Mr. SCOTT. Okay. You don’t have to find a birth certificate or 

something? 

Mr. EMMER. Mr. Chairman, Member Scott, I am sure you are 

going to have to put together some paperwork. But as the experience has shown in several States over the last couple of years, absolutely no one—there is no evidence that anyone has been denied 

the right to vote. In fact, cases in Georgia have been dismissed for 

that very reason because plaintiffs can’t meet their burden of proof. 

Mr. SCOTT. Mr. Shelton or Mr. Hebert, are there examples of 

people that couldn’t get their paperwork straight in time to register 

to vote under the voter I.D. law? 

Mr. HEBERT. Absolutely, there is. And in Indiana, for example, 

Marion County, which is where Indianapolis is, filed a brief in the 

Supreme Court of the United States in which they talked about the 

people who actually had been denied the right to vote as a result 

of the inability to produce the necessary documentation. There are 

other examples. 

Remember, too, when the Indiana voter I.D. case was brought, 

they had never had an election yet under the voter I.D. when the 

case went to trial. I think it is a little misleading for people to get 

up there and say, well, in that case, the court didn’t find a single 

instance of a voter being denied the right to vote. But as it turned 

out, once the election was held, yes, there are really horrendous 

stories of veterans denied the right to vote even though they were 

already registered to vote. 

Mr. SHELTON. Let me just add that the NAACP held a series of 

hearings from the 2000 election and 2004 election in Florida, in 

Ohio, and other places across the country where numerous people 

testified they were not able to meet that burden, provide the paperwork you are describing. As we talk about that paperwork, we also 

have to talk about in the context of what it costs to actually get 

a certified copy of your birth certificate. 

Or in some cases, they want a copy of your passport for those 

that have it. We are talking about expenses that run $35 and up 

in most States across the country. 

Mr. SCOTT. Mr. Shelton, in your hearings did you find examples 

of people intentionally misleading others about their eligibility to 

vote or how to vote or when to vote? 

Mr. SHELTON. Yes, sir, in terms of their eligibility and when to 

vote and how to vote, there were documents sent out, misleading 

documents in various communities, even right here in Prince 

George’s County, but other places across the country in which misinformation was distributed about what time the vote was going to 

take place, where voting sites were. In one case, they were told if 

you were a Democrat you can vote on Wednesday, but Republicans 

would vote on Tuesday. And, of course, Tuesday was election day. 

We have also had examples of robotic phone calls going to people, 

in many cases misleading, and telling them that very well we are 

testing out this new system. You can vote by telephone today. So 

if you want to vote for so and so, you punch the number one, for 

such and such, you punch the number two. And then when the call 

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cause you have been such a great participant and because of your 

voting history and done such an excellent job in the past, don’t 

worry about coming out to the polls to vote on Tuesday. 

Mr. SCOTT. Thank you. 

Ms. Minnite, are you familiar with the report issued by the 

Asian-American Legal Defense Fund? 

Ms. MINNITE. I am familiar with it. 

Mr. SCOTT. Can you talk about what response there has been to 

the allegations of excessive requests for identification for AsianAmericans? 

Ms. MINNITE. That I don’t know. 

Mr. SCOTT. Do you know if there is any response to the allegation that there was lack of interpreters at polling places? 

Ms. MINNITE. I don’t know the response. I am assuming you 

mean by the Justice Department or by election officials. 

Mr. SCOTT. Election officials, just somebody. 

Ms. MINNITE. Yes. No, I don’t know that there has been any. 

Mr. SCOTT. And clerical mistakes or lack of information available 

to help people actually cast a vote? 

Ms. MINNITE. No, I don’t know. 

Mr. SCOTT. Mr. Hebert, are you familiar with those allegations? 

Mr. HEBERT. I am just generally familiar with them. I represent 

the city of New York Board of Elections. A lawsuit was filed 

against the city because there was allegations of ineffective assistance at the polls provided to Asian-American voters. The city ended 

up settling the case and, in fact, now has pending for pre-clearance, 

what we think is a pretty effective plan that remedies some of 

these same problems, at least in New York City. 

There are other problems, though, in other cities that still remain unremedied. And the Justice Department’s long litany of 27 

cases or whatever it was they said they had filed, you know, a lot 

of those are against little, bitty counties in some rural place. And 

the allegation was you violated Section 203 of the Voting Rights 

Act because you didn’t put a sign up saying that there was a bilingual election law in effect. 

And the officials generally in the Justice Department you don’t 

want to use your resources that way. You want to take on the big 

ticket items that private litigants can’t do. That is what you do at 

the Justice Department. Again, there are lots of allegations like 

that, Mr. Scott. And that report contains numerous examples of 

them. 

Mr. SHELTON. Mr. Scott, if I might also add that both MALDEF, 

the Mexican-American Legal Defense and Education Fund and the 

Asian-American Law Center testified before the NAACP in 2006 

that indeed the types of cases that you are describing were a major 

problem in a number of areas, both throughout the South as well 

as throughout the West. We have copies of that testimony. We 

would be delighted to provide it to the Committee. 

Mr. SCOTT. Thank you. 

Mr. NADLER. Thank you. The gentleman’s time is expired. 

And I recognize the gentleman from Minnesota for 5 minutes. 

Mr. ELLISON. Thank you, Mr. Chairman. 

Let me greet Mr. Emmer. He and I served in the Minnesota 

State House together. We disagreed on most policy issues, but we 

126 

did agree on some, particularly debtor privacy issues. And it is 

good to see you here again, Representative. 

You know, you mentioned some things that happened in Indiana. 

But let us talk about the State you and I know best. 

In Minnesota we have some of the highest voter turnout in the 

country, don’t we? 

Mr. EMMER. We do. 

Mr. ELLISON. And in general we are either one or two in the 

country election after election after election. And we also have 

some voting laws that make it easy for people to vote such as 

same-day voter registration. Isn’t that right? 

Mr. EMMER. I am sorry. Mr. Chairman, Representative Ellison, 

I didn’t catch the last part. 

Mr. ELLISON. Yes. We also have rules that make it easy for voters to cast a vote such as election day registration. Right? 

Mr. EMMER. Yes, some would say that makes it easier. 

Mr. ELLISON. And also we have vouching, which means that if 

you have—if you can—if you live in the precinct and you can verify 

that you know this person lives in the precinct, even if they don’t 

have an I.D., they can register and vote on that day. That is a rule 

in Minnesota, right? 

Mr. EMMER. That is Minnesota. 

Mr. ELLISON. Yes. Well, can you tell me whether we have any 

verifiable fraud in Minnesota? 

Mr. EMMER. We have had some allegations, but as far as I know, 

there have been no outright prosecutions in the last 2 to 4 years. 

Mr. ELLISON. Yes. So we have got highest voter turnout, sameday voter registration, vouching, and no verified, proven fraud at 

all. Now, we did have a case in Redwing. Do you remember that 

thing? 

Mr. EMMER. No. 

Mr. ELLISON. Not Redwing, Red Lake. I am sorry. 

Mr. EMMER. That one I remember. 

Mr. ELLISON. Yes, the Red Lake one. You know, you are quicker 

than me on that one, Red Lake. Do you remember the Red Lake 

incident? 

Mr. EMMER. I do vaguely. Perhaps you could refresh my recollection. 

Mr. ELLISON. Yes, let me do that. In 2004 in the Native American Indian reservation on the far west part of our State reported 

that somebody from Washington came there and was challenging 

every voter, regardless as to having specific information. Because 

in Minnesota you can challenge a voter. 

And the tribal authorities actually had to escort this person off 

the reservation because they were creating such a nuisance for native American voters. Are you familiar with that case? Do you remember that one? 

Mr. EMMER. That is very unfortunate. We have the same problem in Minneapolis and St. Paul with Republicans when they go to 

vote. 

Mr. ELLISON. Yes, that is a good joke. I appreciate that. But let 

me just ask a few other questions. 

Thank you, Professor Minnite, for your work. I would like to ask 

you is there—I looked on your chart, and I couldn’t find any demVerDate Aug 31 2005 11:51 Aug 14, 2008 Jkt 000000 PO 00000 Frm 00132 Fmt 6633 Sfmt 6601 H:\WORK\CONST\022608\40923.000 HJUD1 PsN: DOUGA
127 

onstrated or documented cases of imposter voting, specifically imposter voting. I am voting today. I am not who I say I am. Here 

is my fake I.D., and I voted. Are there any cases of that that you 

were able to discover? 

Ms. MINNITE. Not in this data. Not in the Federal record here, 

no. I will add the one case of impersonation that I know of in looking, you know, for years now and looking quite hard was a case in 

a Republican primary in New Hampshire—I think it was 2002— 

in which a 17-year-old who shared his father’s name and knew that 

his father was going to be out of town went and voted because the 

polling site was in his school and the teacher had taken the class 

down to say, you know, we must exercise our civic duty and stuff. 

So when you turn 18, vote. 

And he knew his father was out of town and that his father 

wanted to vote for George Bush. I am sorry. No, it must have been 

2000. And he voted. But in that case, an I.D. card obviously 

wouldn’t have worked because he had the same name as his father. 

So that is the only case that I have come across in which you might 

say there was a kind of impersonation going on. 

Mr. ELLISON. Now, I am familiar with that case. And my recollection is that it was New York. But it could have been New Hampshire. 

Ms. MINNITE. It was New Hampshire. 

Mr. ELLISON. Was it? 

Ms. MINNITE. Yes. 

Mr. ELLISON. And in this particular case, I recall that kid getting 

a criminal record. 

Ms. MINNITE. No, he—— 

Mr. ELLISON. Or some sort of a juvenile—— 

Ms. MINNITE [continuing]. Had a community service requirement. And he was also required to make a speech to his class about 

integrity in the voting process. But they didn’t want to give him a 

criminal record for that. 

Mr. ELLISON. Sully his record. Yes. And so, that is the only case 

I have ever heard of. 

Let me ask you this as well. What is really going on here? I 

mean, we have had a lot of people say that we have got to have 

these photo I.D.s because we have got to have integrity in the vote. 

I haven’t heard any proof that people don’t believe—you know, believe that is a widespread problem. And the number of cases are 

woefully inadequate to support the case. But we have this big P.R. 

campaign going on. 

And now what we are seeing is scholars like yourself saying, you 

know, there is no there there. So what is really going on? Why the 

big furor about voter fraud? 

Mr. Shelton, would you venture to enlighten us a little bit? 

Mr. SHELTON. I believe it is an attempt at voter suppression, 

that we know that the poorest of Americans have a tendency to be 

racial and ethnic minorities. They have a tendency to vote in one 

direction for a particular party. The thrust of this seems to be the 

other party pushing against those participants being able to cast 

that vote and have that vote counted. 

We have had other experiences in which African-Americans 

would go to the polls in places that do have a photo I.D. requireVerDate Aug 31 2005 11:51 Aug 14, 2008 Jkt 000000 PO 00000 Frm 00133 Fmt 6633 Sfmt 6601 H:\WORK\CONST\022608\40923.000 HJUD1 PsN: DOUGA
128 

ment. And when the African-American came to the poll to vote because the poll workers have the discretion to actually accept other 

forms of identification, even signature attestation, which, by the 

way, is the most effective and sure-fire way to prevent any kind of 

misrepresentation, that very well they were being sent home to 

pick up their photo I.D.s to come back. 

But the White voters that lived in the same community were allowed to cast votes even if they didn’t have the photo I.D. on themselves. And they were saying it is a discriminatory application of 

the law that cuts across racial lines and cuts across lines of, not 

only employment, but certainly income. 

Mr. ELLISON. Mr. Chairman, can I ask unanimous consent to 

have this University of Wisconsin 2005 study entered into the 

record? 

Mr. NADLER. Without objection, so ordered. 

[The information referred to follows:] 

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Mr. ELLISON. Am I out of time? 

Mr. NADLER. Yes, you are. 

I thank the witnesses. That is our last questioner. I thank the 

witnesses. 

Without objection, all Members have 5 legislative days to submit 

to the Chair additional written questions for the witnesses, which 

we will forward and ask the witnesses to respond as promptly as 

you can so that their answers may be made part of the record. 

Without objection, all Members will have 5 legislative days to submit any additional materials for inclusion in the record. 

Again, I thank the witnesses. And with that, this hearing is adjourned. 

[Whereupon, at 12 p.m., the Subcommittee was adjourned.] 

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