S. HRG. 110–545 

PROTECTING THE CONSTITUTIONAL RIGHT TO 

VOTE FOR ALL AMERICANS 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

MAY 20, 2008 

Serial No. J–110–96 

Printed for the use of the Committee on the Judiciary 

( 

PROTECTING THE CONSTITUTIONAL RIGHT TO VOTE FOR ALL AMERICANS 

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44–821 PDF 2008

S. HRG. 110–545 

PROTECTING THE CONSTITUTIONAL RIGHT TO 

VOTE FOR ALL AMERICANS 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

MAY 20, 2008 

Serial No. J–110–96 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

STEPHANIE A. MIDDLETON, Republican Staff Director 

NICHOLAS A. ROSSI, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 5 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1 

prepared statement .......................................................................................... 223 

Kohl, Hon. Herb, a U.S. Senator from the State of Wisconsin, prepared 

statement .............................................................................................................. 222 

Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode Island ...... 3 

WITNESSES 

Goldman, Jonah H., Director, National Campaign for Fair Elections, Lawyers’ 

Committee for Civil Rights under Law, Washington, D.C. .............................. 12 

Karlan, Pamela S., Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford Law School, Stanford, California ......................................... 8 

King, J. Bradley, Co-Director, Indiana Election Division, Office of the Secretary of State, Indianapolis, Indiana ................................................................ 7 

Mitchell, Cleta, Partner, Foley & Lardner LLP, Washington, D.C. .................... 10 

Payton, John, President and Director-Counsel, NAACP Legal Defense and 

Educational Fund, Inc., New York, New York .................................................. 4 

QUESTIONS AND ANSWERS 

Responses of Jonah H. Goldman to questions submitted by Senators Leahy, 

Feinstein and Kohl ............................................................................................... 24 

Responses of Pamela S. Karlan to questions submitted by Senators Leahy 

and Feinstein ........................................................................................................ 36 

Responses of Bradley J. King to questions submitted by Senators Feinstein, 

Kennedy, Kohl and Schumer ............................................................................... 45 

Responses of Cleta Mitchell to questions submitted by Senator Schumer ......... 60 

Responses of John Payton to questions submitted by Senators Leahy and 

Kennedy ................................................................................................................ 63 

SUBMISSIONS FOR THE RECORD 

AARP, Larry White, Government Relations, Washington, D.C., statement ....... 85 

Associated Press, May 6, 2008, article ................................................................... 91 

examiner.com, November 6, 2006, article .............................................................. 94 

Goldman, Jonah H., Director, National Campaign for Fair Elections, Lawyers’ 

Committee for Civil Rights under Law, Washington, D.C., statement ........... 96 

Hurd, Maude, National President, Association of Community Organizations 

for Reform Now (ACORN), statement and attachment .................................... 140 

Karlan, Pamela S., Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford Law School, Stanford, California, statement ...................... 156 

King, J. Bradley, Co-Director, Indiana Election Division, Office of the Secretary of State, Indianapolis, Indiana, statement and attachments ................ 164 

Mitchell, Cleta, Partner, Foley & Lardner LLP, Washington, D.C., statement 

and attachments ................................................................................................... 225 

Muhlhausen, David B., and Keri Weber Sikich, Heritage Center for Data 

Analysis, Washington, D.C., report .................................................................... 239 

National Gay and Lesbian Task Force and the National Center for 

Transgender Equality, Washington, D.C., joint statement .............................. 262 

NewsBusters.org, May 6, 2008, article .................................................................. 267 

Payton, John, President and Director-Counsel, NAACP Legal Defense and 

Educational Fund, Inc., New York, New York, statement ............................... 269 

Page

IV 

People for the American Way, Tanya Clay House, Directory, Public Policy, 

Washington, D.C., letter ...................................................................................... 278 

Project 21, National Center for Public Policy Research, September 28, 2007, 

article .................................................................................................................... 282

Samples, John, Director, Center for Representative Government, Cato Institute, Washington, D.C., statement ..................................................................... 284 

Simms, Robert A., Georgia Deputy Secretary of State, Atlanta, Georgia, statement ...................................................................................................................... 290 

United States District Court for the Western District of Missouri: 

Davis Indictment .............................................................................................. 298 

Franklin Indictment ......................................................................................... 302 

Gardner Indictment .......................................................................................... 306 

Stetson Indictment ........................................................................................... 310 

USA Today, May 14, 2008, editorial ...................................................................... 314 

Wall Street Journal, May 20, 2008, article ........................................................... 315 

von Spakovsky, Hans A., former Commissioner, Federal Election Commission, 

and Counsel to the Assistant Attorney General for Civil Rights, Department 

of Justice, article and attachment ...................................................................... 319 

(1) 

PROTECTING THE CONSTITUTIONAL RIGHT 

TO VOTE FOR ALL AMERICANS 

TUESDAY, MAY 20, 2008 

UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, D.C. 

The Committee met, Pursuant to notice, at 2:43 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Feingold, and Whitehouse. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. As I am sure you know, we had a roll call vote, 

and it delayed our opening. This Committee meeting was going to 

be jointly chaired by myself and Senator Kennedy, who is the most 

senior member of our Committee and a former Chairman. And the 

news has been rather shocking this afternoon about Senator Kennedy, and I would hope that each of you would hold him in your 

thoughts and prayers. 

Two years ago, Members of Congress stood together on the Capitol steps to reaffirm our commitment to achieving full democratic 

participation by reauthorizing the Voting Rights Act, and this Committee played a key role in reinvigorating that landmark law. After 

nearly 20 hearings in the House and Senate Judiciary Committees, 

we found that modern-day barriers to voting continue to persist in 

our country. Now, only months away from an important Federal 

election, we are here to examine barriers to the ballot box and to 

look for ways to ensure that the democratic process is open to all 

Americans. Whether they are supporting the Republican or the 

Democratic nominee, all Americans have the precious right to vote. 

Oftentimes we associate voter disenfranchisement with actions 

from a foregone era. We all recall the courage and resilience of 

Americans who were bitten by dogs, sprayed by water hoses, or 

beaten by mobs simply for attempting to register to vote. They 

often did not even get to vote. They were attempting to register to 

vote. We remember a time when stubborn and recalcitrant State officials used discriminatory devices such as poll taxes, grandfather 

clauses, literacy tests—some literacy tests that most members of 

this Committee would have a difficult time answering—all done to 

exclude certain segments of our population from voting. Progress 

has been made to forge a more inclusive democracy, but new voter 

disenfranchisement tactics arise every election year. When we reauthorized the Voting Rights Act, there were those who said that 

2 

it was not necessary. Many of us said, of course, it is necessary. 

We did it to make sure that everybody today can vote. To make 

sure our children can vote and our grandchildren, all of them, will 

be able to vote. So this year is no different. We find disenfranchisement tactics. 

During the most recent mid-term elections, we witnessed overt 

threats by armed vigilantes attempting to intimidate HispanicAmerican voters at the polls in Arizona. We witnessed cross burnings intended to intimidate African-American voters on the eve of 

an election in Louisiana. We saw organized efforts in Maryland to 

deceive minority and low-income voters with false information 

about polling locations and phony endorsements. 

We know from the recent hearing in the Senate Rules Committee 

that no credible evidence of widespread, in-person voter fraud exists. That lack of evidence, however, has not stopped efforts by Republican State legislators in some States to pass restrictive photo 

ID laws. 

We also know that photo ID laws have already disenfranchised 

voters this year. Two weeks ago, a dozen elderly nuns in Indiana 

were turned away from the polls because they did not possess the 

required photo ID. I understand that several of them held expired 

photo IDs that were not sufficient under Indiana’s restrictive laws. 

So these elderly nuns were turned away. 

Fortunately, last week, the Missouri Legislature opted not to follow Indiana’s lead by passing a restrictive photo ID law. And just 

yesterday, Governor Kathleen Sebelius acted to protect voter access 

in Kansas. In her veto statement she declared that she could not 

‘‘support creating any roadblock to prevent our citizens from adding 

their voices to the democratic discourse that makes our Nation 

great.’’ 

Several members of this Committee recently sent a letter to the 

Attorney General asking him to direct the Department to vigorously enforce the Voting Rights Act so that novel photo ID laws 

would not infringe on the voting rights of racial minorities. We look 

forward to his response and to continuing our oversight of the Civil 

Rights Division on this issue. 

Last week, the White House withdrew the controversial, very 

controversial nomination of former Department of Justice Civil 

Rights Division official Hans Von Spakovsky to serve on the important Federal Election Committee. While at the Division, Mr. Von 

Spakovsky played a critical role in politicizing the Department and 

moving the Civil Rights Division’s focus away from its traditional 

mission, which, of course, is to ensure voter participation—not to 

stop voters, but encourage them to participate. I think the Senate’s 

refusal to confirm him to the FEC sends a strong message that we 

will not reward his efforts at the Justice Department to obstruct 

the path to the ballot box. 

On the brink of an election with record numbers of new voters, 

our Government has to remain vigilant in protecting people’s 

rights. That means more than ever we need a Justice Department 

that will work to ensure ballot access for all Americans. 

Federal courts are also critical to the protection of voting rights. 

At key moments in our Nation’s history, it was only the Federal 

courts that acted to protect unfettered access to the ballot box. 

3 

When Virginia passed a law four decades ago requiring voters to 

pay a $1.50 poll tax, the Supreme Court invalidated the law. Simply because the tax would apply to every voter did not make it permissible under the Constitution. 

I regret that the current Supreme Court was not as protective of 

the fundamental right to vote last month when it failed to invalidate a restrictive Indiana law requiring voters to present specific 

types of photo ID. Had just two Justices been more protective of 

the right, those nuns, those Sisters of Mercy in Indiana would have 

been able to vote in the primary election 2 weeks ago. Because the 

burdensome law was allowed to stand, those sisters and untold others were disenfranchised. At a time when the Justice Department 

has departed for political reasons from enforcement of voting rights 

in favor of advancing partisan goals, the Federal courts need to 

provide the check and balance that the Framers of our Constitution 

intended. 

Our great Nation was founded on the radical idea at that time 

of a participatory democracy. Our founding document begins with 

‘‘We, the People...’’ Successive generations of Americans have come 

together to amend our Constitution six times to expand the participation of its citizenry in the election of the Government—to former 

slaves, to women, to young people, to include the direct election of 

Senators, and to prohibit poll taxes. In this way, ‘‘We, the People’’ 

have reiterated and affirmed the fundamental importance of the 

right to vote. We should all remember Judge Wisdom’s analysis in 

the 1963 case of United States v. Louisiana, where he noted that 

a law that burdens a citizen from access to the franchise is a wall 

that must come down. And his words are as true today as they 

were 45 years ago. 

[The prepared statement of Senator Leahy appears as a submission for the record.] 

So I look forward to this panel, and I am delighted that Senator 

Whitehouse has joined me. As I mentioned before, we all know why 

Senator Kennedy is not here. Senator Kennedy was going to cochair this with us. Did you have anything to say before we go to 

the witnesses? Senator Whitehouse has agreed to co-chair it with 

me. 

STATEMENT OF HON. SHELDON WHITEHOUSE, A U.S. SENATOR 

FROM THE STATE OF RHODE ISLAND 

Senator WHITEHOUSE. Chairman, I appreciate very much that 

you have called this hearing. I think this is a particularly significant topic as we approach the November elections, and I note that 

as I sit here, I am sitting in Senator Kennedy’s seat. His nameplate 

is right here in front of me. And I would just like to join you in 

taking this opportunity to wish him and his family well as they 

deal with the diagnosis that he has recently received. As many of 

his friends and admirers in this body have noted, he is one tough 

fighter. And so he certainly has that going for him. Other than 

that, I am happy to go to witnesses. 

Chairman LEAHY. Thank you. 

Our first witness is Mr. John Payton, the new Director-Counsel 

and President of the NAACP Legal Defense Fund. He is the sixth 

person to lead the Legal Defense Fund in its 67-year history. He 

4 

continues the legacy of an organization started by Thurgood Marshall. He is recognized as one of the premier litigators in the country. His civil rights experience includes Supreme Court arguments 

defending the use of race-based remedies in the University of 

Michigan’s admissions criteria. He has taught at Harvard, my alma 

mater Georgetown, and Howard Law School. 

Mr. Payton, we are glad to hear from you, and we will go 

through each one before we open it to questions. Mr. Payton? 

STATEMENT OF JOHN PAYTON, PRESIDENT AND DIRECTORCOUNSEL, NAACP LEGAL DEFENSE AND EDUCATIONAL 

FUND, INC., NEW YORK, NEW YORK 

Mr. PAYTON. Thank you very much. Before I begin, I want to join 

both of you in wishing Senator Kennedy all the best. He is a special champion for justice and equality and has championed all the 

things that I personally stand for and that LDF stands for. So I 

just thought I simply had to say that. 

Thank you for this opportunity to appear at this very important 

hearing. 

Mr. Chairman, as you noted, our history is littered with disgraced efforts to prevent significant portions of otherwise eligible 

voters from voting. Initially, of course, virtually all African-Americans were denied the vote, and more. They were denied virtually 

all rights. And even after the Civil War amendments, which were 

passed to address the exclusion of African-Americans from the political process, we witnessed intricate legislative and other actions 

designed to suppress the African-American vote. 

So the history of our progress, as you noted, as a democracy is 

marked by measures designed to eliminate those burdens on the 

exercise of the most important political right that we have—the 

right to vote. 

Recently, we have seen a very disturbing turn in the opposite direction. On its face, the idea that Indiana would require a Government-issued photo identification for registered voters seeking to 

vote may initially seem sound and reasonable to some. But just a 

little probing exposes the harm that it causes without any corresponding benefit it may provide. 

As Justice Stevens said in his lead opinion upholding the law, 

when he was discussing and describing the law as addressing inperson voter impersonation fraud, as he said, ‘‘The record contains 

no evidence of any such fraud actually occurring in Indiana at any 

time in its history.’’ 

Let me be blunt. Nothing was broken that this law is designed 

to fix. Nothing. 

Obviously, we now have to look at what are the burdens, and the 

burdens are quite considerable. Obviously, initially voter identification requirements do not pose a challenge for those Americans who 

already possess some form of Government-issued identification. But 

for all the other people who do not possess a Government-issue 

photo identification—and those are the people who are on the margins of our economy and on the margins of our society, those people 

who are less mobile and who do not rely upon such IDs in their 

normal day-to-day lives, for those people obtaining this kind of 

identification, such as, you know, a passport or a driver’s license, 

5 

requires them to get documents that they simply do not have, like 

a birth certificate or other documents that are not easily obtained, 

will cost money, and will take a lot of time, hassle, and annoyance. 

Now, some people think that this is really not that big a deal, 

but I think the entire country had some insight into what it means 

to live on the margins of our society just 4 years ago, in 2005 with 

Hurricane Katrina. As the full horror of Hurricane Katrina unfolded before our eyes and we saw tens of thousands of AfricanAmericans trapped in New Orleans’ Lower 9th Ward and other 

places by the flood waters, some wondered why they had simply 

not gotten into their cars and driven away to safety. The stark reality of grinding poverty for those who live on the margins of our 

economy is that they did not have cars, they did not have credit 

cards, they did not have ATMs, and many of them did not have 

driver’s licenses. All of them were part, as you said, Mr. Chairman, 

of ‘‘We, the People,’’ and all of them should have the right to participate in our democracy. The Indiana law, which was enacted 5 

months prior to Katrina and the Crawford decision, all but ignored 

this. 

At the Indiana primary 2 weeks ago, LDF had a team of lawyers 

on the ground. Here is what they saw: Voters without qualifying 

identifications were turned away. Indiana does not keep track of 

how many were turned away at all, so we do not really know the 

total numbers. LDF provided assistance to some of those and 

helped them, in fact, go get their identifications. If we had not been 

there, they would not have been able to do that. 

Poll workers, most disturbingly, poll workers told LDF that those 

voters who showed up without IDs were not routinely told that 

they could cast a provisional ballot. That was the safety net the Supreme Court relied on. It is not enough to say that just because 

some voters managed to vote in spite of these burdens that we 

should overlook the effect that these burdens have on other voters. 

Some people, after all, managed to get away from the Lower 9th 

Ward and the flood waters of Katrina. But we also know that no 

one wanted to be trapped there. These are real and consequential 

burdens on our most important critical right—the right to vote. 

Democracy thrives when it is practiced, and it suffers when practice is prevented. The challenge we now face is determining how to 

structure the political process in a way that is more inclusive and 

provides affirmative opportunities for broad and meaningful participation, and I hope this Committee and this Congress will take 

up that mantle and see that we have greater voter participation 

and oppose all efforts that result in lower voter participation. This 

is a crucial moment. 

[The prepared statement of Mr. Payton appears as a submission 

for the record.] 

Chairman LEAHY. Thank you very much, Mr. Payton. 

We have been joined by Senator Feingold of Wisconsin. Did you 

want to say anything before we go to Mr. King? 

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. If I could, I want to join in expressing my 

concern about the news about Senator Kennedy’s health, and my 

6 

thoughts and prayers are with him and his family. It is a little odd 

on a day like this to continue with our work as if nothing has happened, and particularly on an issue like this, where Ted Kennedy 

has been at the center of the Senate’s work on this entire issue. 

But, obviously, the Senator has— 

Chairman LEAHY. If the Senator would just yield on that, I announced at the beginning this was a hearing that Senator Kennedy 

had requested we were going to co-chair. I considered canceling, 

and I thought out of respect for Senator Kennedy, we would go forward. 

Senator FEINGOLD. Obviously, Senator Leahy, you know this history much better than I do. But in the 16 years I have been here, 

every time there has been a hearing on this issue, it is related to 

the work of Senator Kennedy. 

Mr. Chairman, I just want to also thank the witnesses for joining 

us today for this important hearing. I was deeply disappointed by 

the Supreme Court’s decision in the Crawford case. The expansion 

of the right to vote is one of the most important parts of our country’s history, and I fear the decision will lead to the disenfranchisement of many citizens. We cannot simply be disappointed. The Supreme Court now stands on the wrong side of history. It is incumbent on us to now act. 

Congress’s responsibility to protect the right to vote remains intact, and the Supreme Court’s recent decision urgently compels us 

to fulfill that duty. It is part of that duty to ensure that the executive branch abides by and enforces our election laws: the Voting 

Rights Act, the National Voter Registration Act, the Uniformed and 

Overseas Citizens Voting Act, and the Help America Vote Act. And 

it is our duty to pass further legislation that strengthens the integrity of the electoral process, like Senators Schumer and Obama’s 

Deceptive Practices and Voter Intimidation Act, and Senator 

Whitehouse’s Caging Prohibition Act, both of which I am pleased 

to cosponsor. 

I also believe that we must attempt to address the low voter 

turnout that has plagued this country for the last 40 years. So 2 

weeks ago, just days after the Court issued its decision, I introduced the Election Day Registration Act of 2008. I believe that nationwide election day registration is the single most effective reform we can implement to fulfill the promise of full participation 

in our electoral system by all eligible citizens. This system has 

worked very well in my State of Wisconsin. 

Let Crawford be a clarion call to the forces of progress and reform. Senator Bob La Follette of Wisconsin once said, ‘‘We are slow 

to realize that democracy is a life and involves continual struggle. 

It is only as those of every generation who love democracy resist 

with all their might the encroachments of its enemies that the 

ideals of representative government can even be merely approximated.’’ 

Mr. Chairman, it is our duty, as you well know and show tremendous leadership on, to move forward after Crawford to protect 

the right to vote of all citizens, even or especially if the Supreme 

Court seems to be headed in the other direction. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

7 

Our next witness is J. Bradley King. Mr. King has served as codirector of the Indiana Election Division of the Office of the Secretary of State for 7 years. Is that correct, Mr. King? 

Mr. KING. Yes, sir. 

Chairman LEAHY. He is responsible for advising and assisting 

county election officials, candidates, and political party officials in 

Indiana. From 1999 to 2002, Mr. King served as State Elections Director for the Secretary of State of Minnesota. 

Mr. King, please go ahead. 

STATEMENT OF J. BRADLEY KING, CO-DIRECTOR, INDIANA 

ELECTION DIVISION, OFFICE OF THE SECRETARY OF STATE, 

INDIANAPOLIS, INDIANA 

Mr. KING. Thank you, Mr. Chairman and members of the Committee. I am here to present information on Indiana’s voter ID law 

and its effect on voter turnout. Before I begin, if I could, Mr. Chairman, I would like to join the sentiments expressed by yourself and 

the other members of the Committee with regard to the concern 

that the voters of Indiana share with regard to Senator Kennedy. 

We recognize he has been a strong voice in the Senate and the Nation for nearly 50 years. We honor him for that and wish him well. 

Indiana’s law requires voters to present a photo ID before casting 

a ballot. An ID must meet four requirements to be acceptable for 

voting: it must display the voter’s photo, the voter’s name, an expiration date, and be issued by the U.S. Government or the State of 

Indiana. 

The Indiana law includes many provisions which safeguard the 

right of an eligible voter to cast a ballot. A voter is not required 

to present ID if casting an absentee ballot by mail. A voter who is 

indigent and unable to obtain an ID without paying a fee may cast 

a provisional ballot. If the voter executes an affidavit before the 

county, the ID law does not permit the voter’s claim of indigency 

to be disputed or denied. The voter’s provisional ballot will be 

counted. 

Likewise, a voter who has a religious objection to being photographed may cast a provisional ballot. If the voter executes an affidavit before the county, the ID law does not permit the voter’s 

claim of religious objection to be disputed or denied. The voter’s 

provisional ballot will be counted. 

The law also includes an exemption for voters whose ID has recently expired, giving these voters a grace period of up to 2 years. 

Voters who forget to bring ID to the polls have safety net. Voters 

can leave the polls, retrieve the ID, and return to the polls to vote. 

If a voter cannot present the ID before the polls close, the voter 

may cast a provisional ballot. If the voter then provides ID to the 

county, the voter’s provisional ballot will be counted. This voter can 

even obtain an ID after election day and present that ID to the 

county within 10 days. The Indiana Bureau of Motor Vehicles 

issues free IDs and provides extended hours to serve voters. 

With these and other safeguards, in the eight elections conducted 

since the adoption of the law, there have been no reports of widespread disenfranchisement of voters. Initial reports from the recent 

Presidential primary are consistent with the striking lack of evidence that the law has disenfranchised any significant number of 

8 

Hoosier voters. The State’s voter information hotline had more 

than 1,300 calls received during the 2008 primary. Only two of 

these calls related to the ID law. 

The media advised the State of another ID issue that has been 

referenced regarding 12 members of the Order of the Sisters of the 

Holy Cross. Indiana’s Secretary of State said, ‘‘The voter ID law applies to everyone. From all accounts, the sisters were aware of the 

photo ID requirements and chose not to follow them. They could 

have cast a provisional ballot and received assistance in obtaining 

the proper photo ID within 10 days. They also could have voted an 

absentee ballot by mail.’’ 

Indiana’s provisional ballot voting indicates the law has not suppressed voter turnout. Provisional ballots may be cast for reasons 

totally unrelated to the voter ID law, such as when a voter attempts to cast a ballot in a precinct where the voter is not registered. In 2004 and 2006 general elections, only two-tenths of 1 

percent of voters cast provisional ballots in Indiana for any reason. 

For the 2008 primary election, preliminary information indicates 

that, once again, provisional ballots were two-tenths of 1 percent 

of the total cast. 

Following the enactment of the Indiana law in 2005, the number 

of provisional ballots cast has fallen, and the percentage of provisional ballots cast has remained the same. 

Finally, voter turnout increased dramatically when comparing 

the 2004 to 2008 primaries. Turnout information provides no evidence that significant numbers of voters are choosing not to participate due to the law. The 2008 primary turnout percentage was almost double the 2004 primary and equal to the November 2006 

general election. Despite this remarkable increase in turnout between 2004 and 2008, there were no increase in reports of voters 

disenfranchised by the law. 

Achieving the goal of protecting the constitutional right to vote 

of all Americans is not impeded by the Indiana voter ID law. Instead, ensuring that each eligible voter casts one, but only one, ballot is fundamental in protecting our right to vote. 

Thank you for the opportunity to address the Committee today. 

[The prepared statement of Mr. King appears as a submission for 

the record.] 

Senator WHITEHOUSE. [Presiding.] Thank you, Mr. King. 

We will next hear from Professor Karlan. 

STATEMENT OF PAMELA S. KARLAN, KENNETH AND HARLE 

MONTGOMERY PROFESSOR OF PUBLIC INTEREST LAW, 

STANFORD LAW SCHOOL, STANFORD, CALIFORNIA 

Ms. KARLAN. Thank you very much, Senator Whitehouse. I, too, 

want to say something about Senator Kennedy, because the last 

time I was in front of this Committee was testifying in a hearing 

that he chaired as one of, as Senator Leahy noted, the 20 hearings 

that established a massive record before Congress re-enacted the 

Voting Rights Act of 1965. Contrast those 20 hearings and the 

thousands of pages of records there with the complete absence of 

any record of any fraud in in-person impersonating voters, and you 

will see the difference, I think, between what this Congress has 

done and what the State of Indiana has done. 

9 

Now, you have my prepared testimony, and so I want to focus on 

three issues that are highlighted there. 

The first of them is the impact of the Supreme Court’s decision, 

which is because the Court was split three ways, what we have is 

three—and you must think of them as the good, the bad, and the 

ugly. Three of the Justices said that the law was unconstitutional 

and they would strike it down and, I think it is safe to say, most 

of the in-person ID laws. Three of the Justices would uphold these 

laws regardless of their impact on individual Americans, which I 

find a kind of shocking change in how we think about the constitutional right to vote. And then three of the Justices, in Justice Stevens’s controlling opinion, said that they would be prepared to entertain an as-applied challenge to the law but not a facial challenge. 

I just want to identify for you one of the reasons why I think legislation is important here, and that is that as-applied challenges 

are going to be devilishly difficult to litigate in the context in which 

they are going to arise, which is they are going to happen after 

close elections in which perhaps hundreds of voters have been told 

that they lack ID; some of them will have been turned away from 

the polls and there will be no record, as Mr. Payton pointed out; 

some of them will have cast provisional ballots but will be unable 

to get the required documentation or unable to make it down to the 

courthouse to satisfy them. And then you are going to have to litigate these challenges in the context of a hotly contested election. 

We all saw what happened in 2000 when there were 537 votes 

separating the two Presidential candidates in Florida. Just imagine 

what is going to happen this time around if we have voter ID laws 

that have disenfranchised some number of individuals. 

We already know that Indiana more nuns were disenfranchised 

in one election than all the examples of in-person vote fraud in Indiana’s history stretching back to the 19th century. So I think 

there is going to be a serious problem with these as-applied challenges brought after the elections. 

The second point I wanted to make is the point about the fact 

that there are two ways in which the integrity of the political process can be impaired. One of them is what voter ID laws are ostensibly directed at, so-called false positives—that is, cases where an 

individual who is not entitled to vote nonetheless casts a ballot. 

But there is another thing that can threaten the integrity of elections just as much, and that is false negatives—that is, people who 

are prevented from voting who are entitled to vote. And they are 

not just prevented from voting by voter ID laws when they show 

up at the polls, and there are really lots of people who will not satisfy these laws. 

If you listened to Mr. King’s testimony, there are two points 

there that I just wanted to highlight. One of them is the point 

about indigent voters, which is they can go and they can execute 

an affidavit of indigency and then be permitted to vote. But they 

have to do this in every election. The State does not say once you 

have proved you are indigent, we will give you a card so you can 

vote again without having to show up at the county clerk’s office. 

And so think about the burden. If you are too poor to spend the 

money to get an ID, you are certainly not going to have a lot of 

10 

money to go traipsing around the county so that you can satisfy the 

right to vote. 

The second is the requirement that the ID have on it not just an 

expiration date, but also the voting address—now, I voted in Connecticut for many years when I lived there. I lived there and I also 

went to college there, but I did not go to college the same place I 

lived. My driver’s license had my parents’ home address on it. I 

voted where my college was. I could not have satisfied the voter ID 

law. And that is going to be true for lots of college students who 

are entitled by law to continue their driver’s licenses in their place 

of permanent residence and to vote where they live. So there are 

going to be lots of people for whom this law is going to have a burdensome effect. 

And when you think about the level of burden here, it is going 

to occur election after election, and it seems to me that if we are 

concerned about the integrity of the voting system, we should be 

as worried about people who are prevented from voting—prevented 

from voting by voter ID laws, prevented from voting by intimidation at the polls, prevented from voting by efforts to deter people 

from showing up at the polls as, for example, happened in Orange 

County, where 14,000 voters in largely Latino neighborhoods received mailings telling them that immigrants cannot vote, which is 

false—of course, immigrants can vote if they are citizens—and the 

like. And so it seems to me that we should be as concerned that 

the people who are prevented from voting as we are about the kind 

of phantom example of in-person voter fraud. 

I would just like to end with a quotation from Justice Brandeis’ 

concurrence in Whitney v. California, where he was talking about 

laws that suppress speech. And he said, ‘‘Men feared witches and 

burned women.’’ And what we have here is people fear impersonating voters, and what they do is they disenfranchise the poor, 

the disabled, the elderly, the retired, and students instead. And I 

think it would be a tribute to Senator Kennedy for the Committee 

to think about how it wants to respond to the scourge of voter ID 

laws. 

Thank you very much. 

[The prepared statement of Ms. Karlan appears as a submission 

for the record.] 

Senator WHITEHOUSE. Thank you, Professor Karlan. We appreciate your testimony. 

Ms. Mitchell, please proceed. 

STATEMENT OF CLETA MITCHELL, PARTNER, FOLEY & 

LARDNER LLP, WASHINGTON, D.C. 

Ms. MITCHELL. Thank you, Senator Whitehouse. I, too, want to 

join in commenting upon Senator Kennedy and wish his family and 

the Senator best health. I was a Fellow at the Institute of Politics 

at Harvard University in 1981, nominated by Senator Kennedy, so 

my acquaintance with him goes back many years. 

My name is Cleta Mitchell. I am an attorney specializing in the 

political law. I represent conservative issue organizations, Republican candidates and party committees, and citizens and donors all 

across the country interested in participating in the political process. I am honored to be here today to discuss with the Committee 

11 

the integrity of America’s elections and voting process. I can assure 

you that every organization, every entity, every campaign, and 

every candidate with which I am involved is dedicated to one principle, which is assuring that our voting systems are secure, that 

only legally eligible voters cast ballots, and that every legally cast 

ballot is counted to the highest degree of certainty and accuracy. 

But there are people and activist groups in this country who contend that there is no voter fraud and that those of us who try to 

say something or do something to protect the integrity of the voting 

process must be idiots or, worse, that we must be racists. I contend, 

I absolutely reject that contention. I resent it, and I reject it. And 

I must say I am sorry that Senator Leahy left because I want to 

take a moment to defend Hans Von Spakovsky, who has been much 

maligned and mistreated by many activist groups and by the Senate of the United States during these months and years of his nomination to the Federal Election Commission. 

What Mr. Von Spakovsky did as a member of the—as a career 

attorney at the Justice Department was that he refused, he along 

with others refused to interject the Department into the legislation 

that had been enacted by the State of Georgia requiring voter identification, and they refused to deny preclearance to the State of 

Georgia for that law. That was litigated in Federal court, and after 

2 years, when the plaintiffs could not produce evidence, credible 

evidence, of a disparate burden on minorities, the Federal judge 

dismissed the case. And now the Supreme Court of the United 

States has upheld the legal position that Mr. Von Spakovsky took. 

So I think that it is time to stop castigating Mr. Von Spakovsky 

just because we disagree with him. 

I reject the premise that we are engaged in any effort to deny 

any person the right to vote simply because we want to assure that 

there are voting safeguards. In 1993, President Clinton signed the 

motor-voter law, the National Voter Registration Act, which allows 

individuals who apply for public assistance or driver’s licenses to 

allow those applications to be used as well as voter registration applications. Since the time that that was done, what we have seen 

is a massive swelling of the voter rolls in the United States without 

a commensurate increase in voter turnout or participation. 

In 2001, Dr. John Samples of the Cato Institute testified before 

the Senate Rules Committee, and he said, ‘‘We should not be surprised that the registration rolls throughout the Nation are enormously inaccurate. In some places, the voting roll numbers are bigger than the voting age population.’’ There is more, and the fact of 

the matter is what we have now in our country is a situation where 

people deny that there is voter fraud and, therefore, we do not need 

any safeguards. 

So we want people to be able to not have to show identification, 

yet when they register to vote, we cannot require that they must 

demonstrate proof of identity or residence. And now then, in trying 

to clean up the voter registration rolls, Senator Whitehouse, you 

and others have introduced legislation to make that impossible because we have now come up with a new term of ‘‘vote caging,’’ 

where sending letters to try to ascertain whether or not people actually live where they say they live when they register to vote, to 

see whether that is true. 

12 

It is a moving target, and the bottom line is that these efforts 

to deny the existence of voter fraud—and in my written testimony, 

I included a number of instances of vote fraud. And anyone with 

15 minutes and access to Google can find plenty of evidence of 

voter fraud. 

Now today, as I say, we have a moving target. Now today we are 

supposed to talk about in-person voter fraud and if there is no inperson voter fraud. I would question, How would we ever know? 

You cannot take photographs to try to ascertain that somebody is 

presenting himself or herself as someone who they are not. That 

is illegal. And so how are we supposed to demonstrate that there 

is in-person voter fraud. It is, as Professor Karlan may say, trying 

to prove a positive or a false negative, or whatever it is. But the 

fact is all of the safeguards that should be in place to assure that 

every person who is legally eligible to vote should be allowed to 

vote, that those votes are counted, that they are properly counted, 

and to assure and affirm that people’s confidence that the voting 

system is not disrupted and not destroyed by fraudulent activities 

of those who would seek to destroy the integrity of our voting process. 

Thank you. 

[The prepared statement of Ms. Mitchell appears as a submission 

for the record.] 

Senator WHITEHOUSE. Thank you, Ms. Mitchell. We appreciate 

your testimony. 

Mr. Goldman? 

STATEMENT OF JONAH H. GOLDMAN, DIRECTOR, NATIONAL 

CAMPAIGN FOR FAIR ELECTIONS, LAWYERS’ COMMITTEE 

FOR CIVIL RIGHTS UNDER LAW, WASHINGTON, D.C. 

Mr. GOLDMAN. Thank you, Senator Whitehouse. I want to join 

the chorus of sympathy for Senator Kennedy. The entire voting 

rights community owes our inspiration to his example, his fight, 

and his accomplishments. And truly I think that the entire civil 

rights community would not be here without his leadership, so we 

all have him in our thoughts. 

I want to thank you for inviting me here today and for holding 

this hearing on the foundational issue of our great democracy—the 

fundamental right to vote. My name is Jonah H. Goldman, and I 

am the Director of the National Campaign for Fair Elections at the 

Lawyers’ Committee for Civil Rights Under Law, which spearheads 

election protection, the leading nonpartisan voter protection coalition. 

The Congress has a constitutional duty found in the 1st, 14th, 

and 15th Amendments to protect the rights of all eligible Americans to cast a meaningful ballot. This primary season, almost 50 

million voters have already cast ballots. Unfortunately, this civic 

exuberance has put tremendous weight on a crumbling election infrastructure. In a general election, up to 6 million real, eligible voters may be prevented from exercising the right to vote because our 

election administration system is poorly funded and decentralized. 

During this year’s primaries, Election Protection identified four 

themes that lead to eligible voters being disenfranchised: undertrained poll workers, voting technology malfunctions, inaccurate 

13 

voter registration lists, and problems with voter identification requirements. 

There are over 1.4 million poll workers across the country. The 

overwhelming majority are committed to doing their job by volunteering up to 18 hours on election day. However, voters are turned 

away because poll workers lack training and guidance on how to 

effectively administer an election. Many voters cannot stand in 

long lines caused by too few poll workers or because polling places 

open late or close early. 

Problems with voting equipment also lead to eligible voters being 

disenfranchised. In addition to technological glitches, both poll 

workers and voters are confused about how new voting technology 

works. Many jurisdictions do not have adequate safeguards for 

when voting technology breaks down. 

This year, more than 3.5 million new voters have registered. 

That is up 65 percent from the same period 4 years ago. We should 

all be proud of this powerful chorus of new voices engaging in the 

process. Unfortunately, eligible voters who submit timely registration applications find their names are not on the registration rolls. 

Americans who have been voting for years are missing from the 

rolls because of irresponsible or discriminatory purges. 

Voters in every State are also being turned away because of confusion over voter identification requirements. Poll workers are confused about when voters need to show ID and what is required by 

State law. 

Unfortunately, the debate over voter ID has distracted us from 

a productive discussion of how to solve the real problems voters 

face. As this Committee has heard, there are no shadow bands of 

ineligible voters roving from polling place to polling place to impersonate eligible voters and affect election results. And no wonder, 

penalties are quite high—up to 10 years in prison and a fine of up 

to $10,000—and the prospects of affecting election outcomes are 

quite low. As they should, every State has a process for verifying 

voters’ identities. Most accomplish that goal without sacrificing the 

votes of eligible citizens, which is what restrictive ID requirements 

do. 

During this year’s Indiana primary, Election Protection volunteer 

John Borkowski walked into a polling place on the campus of St. 

Mary’s College in South Bend. Students from the college were 

being turned away because they only had ID from the college, 

which is a private institution, as opposed to Government-issued 

photo identification with an expiration date, as required by Indiana 

law. While talking to one of the poll workers, Sister Julie McGuire, 

John discovered that many of the nuns who lived in the convent 

that housed the polling place were also victims of this misguided 

policy. Many of the sisters who did not have ID did not attempt to 

vote, and this is the true scope of the tragedy: the millions of eligible voters across the country without ID who will not show up at 

the polls because they know they will be turned away. 

Mr. Chairman, there are real problems with our election system 

that prevent real, eligible voters with a deep desire to participate 

in the proud tradition of our democracy from having their voices 

heard. It is critical that Congress act to make it easier, not harder, 

for eligible citizens to participate by implementing common-sense 

14 

solutions to the real problems voters face. We should move toward 

universal registration by implementing election day registration. 

We should prevent the real fraud that happens in elections like offensive deception and take away the tools of intimidation and dirty 

tricks like voter caging. We need to provide a real infrastructure 

for training poll workers and thoughtfully arrive at the best voting 

technology. Americans believe Government should provide the best 

election system, and we deserve it. 

As the Supreme Court has said for over a century, the right to 

vote is the most fundamental right because it preserves all of our 

other rights and freedoms. Our noble experiment in providing each 

citizen a voice in the destiny of her country, constantly evolving 

and made better through expanding the voices of those able to participate, is now the template for freedom around the world. We 

must honor this spirit by providing the most responsive, advanced 

infrastructure available. We owe our history, our future, and our 

country no less. 

Thank you. 

[The prepared statement of Mr. Goldman appears as a submission for the record.] 

Senator WHITEHOUSE. Thank you very much, Mr. Goldman. 

While I appreciate very much the testimony of all the witnesses, 

I seem to have you all to myself right now, so I have plenty of opportunity for questions, and often new Senators are at the tail end 

of the questioning and I have 4 or 6 minutes. So this is a luxury 

for me, and I am very happy to be with you. 

One of the things that strikes me is that there are different 

views as to what problems face our voting system. Some see our 

voting system as one that simply needs to be protected from people 

who are not the real person. Others see it as the locus where very 

organized, very strategic efforts to make comprehensive efforts to 

deter voters—not necessarily a particular individual, but a group 

of individuals—in order to influence an election outcome in which 

all that play takes place. And the evidence that I have seen convinces me that that is the bigger problem. 

We have some examples that we have gathered of efforts to educate voters in various places. Here is a flyer from something called 

the Milwaukee Black Voters League. ‘‘Some warnings for election 

time: If you have already voted in any election this year, you cannot vote in the Presidential election. If you have ever been found 

guilty of anything, even a traffic violation, you cannot vote in the 

Presidential election. If anybody in your family has ever been found 

guilty of anything, you cannot vote in the Presidential election. The 

time to register for voting has expired. If you have not registered, 

you cannot anymore. If you violate any of these laws, you can get 

10 years in prison, and your children will get taken away from 

you.’’ 

That is helpful. 

Then we have from the Franklin County Board of Elections an 

election bulletin: ‘‘Because of confusion caused by unexpected heavy 

voter registration, voters are asked to apply to the following schedule: Republican voters are asked to vote at your assigned location 

on Tuesday. Democratic voters are asked to vote at your assigned 

15 

location on Wednesday.’’ Got it? ‘‘Thank you for your cooperation 

and, remember, voting is a privilege.’’ 

Here is another one to the same effect from McCandless Township, Allegheny County, Pennsylvania: ‘‘Attention, Voters. Due to 

the immense voter turnout that is expected on Tuesday, November 

2nd, the State of Pennsylvania has requested an extended voting 

period. Voters will be able to vote on both November 2nd and November 3rd. In an attempt to limit voter conflict, Allegheny County 

is requesting that the following actions be made: Party-Republican, 

Voting date November 2nd. Party-Democrat, Voting date November 

3rd. Thank you for cooperating with us in this endeavor to create 

a peaceful voting environment.’’ 

And then here is another good one, from the Students for Magnum: ‘‘Vote Tuesday, November 2nd.’’ At least they got the day 

right. ‘‘Vote at the polling place of your choice.’’ 

Now, obviously, those are worse than the average effort, but I do 

not think that vote caging efforts are very much different than 

them in terms of their effects. I would like to mention to Ms. 

Mitchell, who was concerned about the vote caging bill that I have 

sponsored, it does not prevent proper Government officials from 

trying to keep the polling lists clean. It only deals with private actors and political entities that come in with vote challenges. So 

county officials can continue to go ahead and try to keep their voter 

lists clean. The problem with vote caging has been outside groups 

that send mail into heavily minority districts and for a variety of 

reasons—everything from typographical errors to people in the 

military to kids in college—are able to generate mail coming back 

that purports to indicate that the person is a regular voter, then 

you challenge them, then they are out, and, you know, the effect 

that you wish to create has been effected. 

I know that Mr. Goldman has reviewed the vote caging legislation. Do you have further thoughts on that aspect of it? 

Mr. GOLDMAN. Well, Senator Whitehouse, I and the Lawyers’ 

Committee want to thank you for taking this bold step. Voter caging is something that goes back for over 50 years and had always 

been used to target specific populations and to try to basically 

make sure that it is more difficult for particular populations to participate in our democracy. 

In 1990, when vote caging sort of got its kind of modern renaissance, it was through a caging program done by Senator Jesse 

Helms’ campaign that was either focused on exclusively minority 

voters, African-American voters, or on precincts that I believe were 

about 92 percent African-American. That was the low number. 

Basically what happens with caging is that you see a system that 

is flawed in so many ways because, number 1, the lists, the original 

lists, are frequently flawed. Voter registration lists, as we know, as 

I testified and as we reported in a number of different documents 

that we put out at the Lawyers’ Committee, voter registration lists 

are often flawed. The mails do not often get to the place where they 

are supposed to go. There are multigenerational households. There 

are a number of different reasons why these are poor risks, so we 

really, again, thank you for your leadership in introducing this bill. 

16 

Senator WHITEHOUSE. That is why some State parties are actually under court order, consent agreement to cease and desist from 

continuing vote caging practices, correct? 

Mr. GOLDMAN. That is right, Senator. 

Senator WHITEHOUSE. I am interested in the National Voter Registration Act, and not the motor-voter provision, which is the famous provision of the law. But in Section 7, that required that 

there be voter registration at locations that provide State public assistance, the information I have is that voter registration at State 

public assistance agencies fell from a high of 2.6 million voters registered in 1995 to 1996 to just 550,000 in 2005–06, the most recent 

information we have available, which is a decrease of 79 percent 

over that period. In Missouri alone, Section 7 registration fell from 

143,000 in 1995–96 to less than 16,000 in 2005–06, which is nearly 

1 in 10. 

There does not appear to be any corresponding decline in public 

assistance caseloads, and, thus, it appears that non-compliance 

with Section 7 is interfering with the opportunity for many folks 

who are eligible for public assistance to have this opportunity. 

I note that the Department of Justice, which has enforcement authority over Section 7, filed suit in 2002 against Tennessee. Before 

the suit, in 1999 to 2000, Tennessee had received 49,636 voter registration applications through public assistance agencies. After settlement of the suit in 2003 to 2004, when they got more seriously 

about their business, that number jumped to 173,927. As a result 

of that, 20 percent of all public assistance registrations in the entire country took place in Tennessee, which seems like a significant 

signal that this is a real opportunity to increase voter eligibility 

and voter awareness. 

Several of us wrote to the Department a little while ago urging 

them to enforce Section 7, and just recently, DOJ announced an 

agreement to bring Arizona’s Department of Economic Security into 

compliance with Section 7. 

I am interested in whether the information that you all have is 

that you expect this to continue in other States or is this, do you 

think, just an isolated incident of enforcement. Ms. Mitchell? 

Ms. MITCHELL. Senator, I do not have Dr. Samples’s entire testimony before me, but it is in the record of his appearance before the 

Senate Rules Committee in 2001. And, frankly, while I understand 

and appreciate the statistical information that you have presented, 

I would commend his testimony to you and the studies that are referenced in there, in his testimony, because what has been demonstrated—and his testimony was in 2001, so we cannot really 

blame the Bush administration for this. But the fact is that, notwithstanding the dramatic increase in registration, the participation and actual turnout did not substantially increase. So that the 

stated goal of the law to increase voter turnout and participation 

has not been achieved. However, the other section that I talked— 

Senator WHITEHOUSE. It is hardly logical, however, to encourage 

voter participation by not facilitating voter registration. It is a logical step in the right direction, isn’t it? 

Ms. MITCHELL. Well, one would think so. I think it is important 

to look— 

17 

Senator WHITEHOUSE. Don’t you think so as a professional that 

the more people are registered, the more people are available to 

vote? 

Ms. MITCHELL. All I am saying is that the statistics have not 

proven that one begets the other. I think all of us thought that that 

would be the case, but that has not necessarily proven to be the 

case. What I thought you were going to address was the other section of the motor-voter law, which has to do with making it more 

burdensome and more difficult for jurisdictions to clean their voter 

rolls, which I think that has lent itself to the potential for increased voter fraud because you have in many jurisdictions more 

people on the voter rolls than you have voting age population. 

So I think that all of these things matter. I think that what 

would be useful for us is to look at the facts and not to just assume 

that certain things are going to be true or are true when the facts 

do not support that. 

Senator WHITEHOUSE. If I may, let me ask Professor Karlan 

quickly about this, because she mentioned in her testimony a sort 

of astonishing statistic, and that is that there were more nuns 

disenfranchised in Indiana during the last election than all of the 

proven in-person vote fraud cases in the history of the State of Indiana. And I am wondering what your reaction is to the information that there are voter rolls that have names on them that are 

no longer effective voters. Does that correlate with a high incidence 

of in-person voter fraud? 

Ms. KARLAN. No, it does not correlate with in-person voter fraud, 

and if I can just make an observation about the opinion in 

Crawford. The example of in-person voter fraud that Justice Stevens pointed to is an 1896 municipal election in New York, and the 

reason for that is not exactly an accident. If you wanted to commit 

voter fraud in 1896, the only way of doing it was to have individuals go to the polls and vote again and again and again. 

Today, if you were inclined to engage in vote fraud, you would 

commit it through absentee voting because it is cheaper, faster, 

more reliable, and you are less likely to be caught. And the fact 

that States do not seem to be doing much to deal with either their 

voting rules themselves or with the possibility of absentee fraud 

versus fraud at the polls I think is no accident. It is like that old 

joke about the drunk who is looking for his keys under the lamppost. And they say, ‘‘Well, did you lose them here?’’ ‘‘no, but the 

light is easier here.’’ 

And Judge Posner was kind of frank about this in the Seventh 

Circuit arguments in the Crawford case, where he said, look, you 

cannot check the ID of people who are voting absentee, so you do 

not have to check their ID, but you can check the ID of people at 

the polls. And so I think— 

Senator WHITEHOUSE. The light is better. 

Ms. KARLAN. Yes, the light is better there. So if you were thinking about how would you have a system that has a great deal of 

integrity, well, one thing is you would comply with the parts of 

HAVA that deal with computerizing the voter rolls and making 

them more updated and more reliable. You would comply with the 

parts of the NVRA that require notification when people notify the 

18 

DMV. That should notify the Boards of Elections and the like. And 

that is how you would clean up the rolls. 

What you do not want to do as a way of cleaning up the rolls 

is to put more burdens on people when they show up at polling 

places or to do things like draw up kind of predecessors to vote caging. I worked on a case in Louisiana in the 1980’s, the kind of predecessor to some of the problems that John was talking about, which 

was our clients were getting knocked off the voting rolls in Louisiana because mail was being returned ‘‘Addressee unknown.’’ And 

we later found out that a lot of our clients lived in the Desire Housing Project. You know, the Streetcar Named Desire does not exist 

anymore, but it used to go to the Desire Housing Project. And the 

postal workers were afraid to go into the project because it was so 

dangerous so they just tossed the mail on the floor. They would 

kind of run up, toss the mail on the floor, and run out again. And 

so our clients were not responding to notices from the Government 

because they were never getting the notice. And that is some of 

what you actually worry about. 

To make a point off of your observation on Section 7, Senator 

Whitehouse, when the Government actually wants to find people, 

and when the Government actually wants to make people participate in important parts of our governing process, they do a much 

better job of it. So, for example, we want all 18-year-old men in the 

United States to register for Selective Service. Well, we do things 

like say you are not going to get student loans. We put the forms 

in post offices. We put up signs everywhere. They are told about 

it in school. And we get pretty good levels of registration. When it 

comes to jury service, we send out summonses to people and we 

send out a second summons and occasionally actually even go and 

try and figure out why they are not showing up. 

And we do not do any of that when it comes to voting because 

we really—unlike most other democracies, we do not treat voting 

as something that we expect everybody to be doing and that it is 

the Government’s job to facilitate. And that is why even if people 

register, they often do not show up at the polls because we do not 

make voting easy and attractive for them. And if we did, we might 

see much higher levels of turnout. 

Senator WHITEHOUSE. Mr. Payton, you wanted to say something. 

Mr. PAYTON. I did. On your point about the requirement that 

States create opportunities and take advantage of the opportunities 

so that poorer people get registered, I think the data you cited are 

not exceptions, and I think they are appalling. We want more people to be registered to be able to participate in our democracy. That 

is actually crucial, I would say, to the health of our democracy. And 

so I think we ought to do more things to make sure people get registered in ways that Pam just described. 

But the reason we are here today is that even if you do those 

things and you are marginalized like the people that we saw in 

Katrina—and that is largely who you are talking about, who would 

be identified in the means you were just describing—the reason we 

are here today is that some States have added an additional burden when those people who actually were registered that way show 

up and try to vote. Many of them do not have the Governmentissued photo ID. And so when they show up, they are told, well, 

19 

you are registered, that is your address, your name is here, but you 

do not have a Government-issued photo ID. And I hear the response from Mr. King, who says, you know, there is a complete 

safety net. Just execute an affidavit saying that you are indigent, 

and you get a provisional ballot. 

Here is the really odd and, I would say, perverse reality. You are 

given a provisional ballot, and then you are told that in order to 

perfect it, you must travel within the next 10 days to the county 

seat. If you were in Gary, you would have to go to Crown Point, 

about 30 miles round trip. And the only purpose is the burden— 

that is, if there was some other purpose, if you just wanted that 

affidavit executed, you could have asked for it to be executed right 

there on election day at the polling place. But instead, we simply 

add a burden for its own sake. You must travel to the county seat 

to execute the affidavit that just says, ‘‘I am indigent.’’ And as he 

said, no one goes behind the affidavit. 

It is really important that people who are marginalized in our society be brought into the political process and be registered. But 

that is not of any value if they do not get to vote. 

Senator WHITEHOUSE. Mr. Payton, what statistics do you have 

regarding minority elderly or other voters without Governmentissued photo IDs? Who is likely to be swept up in a system that 

requires Government-issued photo IDs? Who is likely to be left out? 

And is there any information out there about what the population 

is of the Government-issued photo ID-less individuals? I mean, I 

can think of people in, you know, Woonsocket who are 70, 80 years 

old, who live in a tenement house, who walk to the pharmacy to 

pick up their medication, who walk to the market to pick up their 

food, who live in their neighborhoods, who do not have a car, who 

have no reason whatsoever to get a driver’s license, who do not 

have a Government-issued photo ID, and yet are thoroughly legitimate, welcome, contributing citizens of Rhode Island, people who 

have dedicated their lives to the State, who have worked hard and 

paid taxes, and why on Earth—you know, so there is one example. 

How much more can you fill us in on who— 

Mr. PAYTON. I have two related points. In my prepared testimony, on page 4, we have some data that shows that 25 percent 

of African-Americans of voting age do not have the ID compared to 

8 percent of white voting age citizens who do not have the IDs. But 

there is a more significant point here, which is how much of a burden it is for people who are actually in lower socioeconomic status 

to get it. 

So it is more difficult to get it, and the burdens that I am discussing, they are not trivial. When you are poor, these are not trivial burdens. These are real burdens. And no one would argue that 

non-trivial burdens do not have an effect. They have an effect. 

They do not cause everybody not to go get their ID, but they cause 

some people not to go get their ID, and that is not an effect we 

want in a healthy democracy. 

Senator WHITEHOUSE. I will give Ms. Mitchell a chance to reply, 

but I noted in her testimony she said, ‘‘I cannot claim my luggage 

from the bellman without producing my photo identification, and I 

cannot rent a pull cart from my golf club at Hains Point public golf 

course without surrendering my driver’s license until I return the 

20 

pull cart.’’ And I guess my question is: Isn’t it true that the people 

who are targeted for exclusion from voting by voter ID laws are not 

likely to be out golfing and are not likely to be staying at the kind 

of hotels where there is a bellman to keep an eye on your luggage? 

It seems like they are two different populations here that we are 

talking about. That is sort of the purpose of the exercise. Ms. 

Mitchell? 

Ms. MITCHELL. May I? 

Senator WHITEHOUSE. Please. 

Ms. MITCHELL. Have you been to Hains Point recently? I mean, 

this is not exactly a luxury facility. It is a public golf course in the 

District of Columbia. But let me just say this: I do not think it is 

trivial to—I do not think this is a trivial issue. And I realize that 

there are people who live different lives. I also would note that in 

my testimony you cannot get into the United States Capitol to have 

a meeting with a Senator or a House Member without producing 

a photo ID. 

Ms. KARLAN. I did not produce one today. 

Ms. MITCHELL. To the United States Capitol, in the Capitol. You 

have to produce a photo ID. 

I guess my question is—I do not think those things are trivial. 

Here is what I also do not think is trivial. I do not think it is trivial 

that in Missouri in the general election of 2000 that there were— 

when they went back and looked at the general election results and 

studied what had happened, that more than 1,200 people had voted 

illegally, including people who voted twice, possibly more than 

twice, deceased persons who had voted, persons who were registered at vacant lots where there were multiple names at registered at the same address that were not multi-family dwellings, 

nursing homes, hospitals, or group homes. 

I do not think it is trivial that in Washington State in the gubernatorial election of 2004, where the election was decided by fewer 

than 2,000 votes, that there was evidence introduced in court that 

showed that more than 1,000 people voted illegally in that race, including deceased voters, double voters, and others whose identities 

could not be established even after the election. 

So what I am saying is all of these things matter, and it is not 

trivial that there are people such as in ACORN, who go into these 

communities that you are talking about, who have had—in November of 2007 in Seattle, where ACORN workers pleaded guilty to the 

most massive—according to the news reports, the most massive 

voter registration fraudulent scheme that had ever been perpetrated and prosecuted in the State of Washington; where ACORN 

volunteers, unpaid representatives, pleaded guilty in Kansas City 

to engaging in a fraudulent voter registration scam. 

So I do not think that is trivial either. I realize you trivialize 

what I put in my testimony about the requirement for everyday 

production of photo ID by the vast majority of the population. But 

I also think it is not trivial that there are people out there who do 

want to try to use the system, abuse the system, and organize and 

cast illegal votes. And I think that is a threat to the system, to our 

whole electoral process. 

Senator WHITEHOUSE. Well, it strikes me that what is not trivial 

is if in addressing the problem of the occasional self-motivated, 

21 

fraudulent voter, the person who has not gotten their identification 

or does not live where they say they do, you put into effect a remedy that allows entire populations to be put at greater risk and to 

face greater difficulties in exercising their franchise than otherwise. That to me is what is unbalanced and unfair. 

Mr. Goldman, you had your hand. You wanted to respond? 

Mr. GOLDMAN. Thank you, Senator. A few things. 

I think it is important, first of all, to note that all of the examples that Ms. Mitchell said about actual voters who were impersonating other voters, upon further inspection turned out to be not 

the case at all. In fact—and Justin Levitt and a couple of other 

folks from the Brennan Center have done some really good work 

on what matching protocols actually need to be in order to be responsible in elections and how frequently it is when you take a relatively small size of voters to see how many of them have the exact 

same name and birth date. It is actually quite large. 

Vacant lots, often homeless voters are actually registered at vacant lots. Those are very real, eligible voters who are on the rolls 

and who are participating, as they should be. 

Often people who live in multiple—who have multiple names— 

I mean, I live in a household that is not a nursing home or a multifamily dwelling, and we have multiple people who have multiple 

names. 

So, really, when you look at this, we are still talking about a situation where 11 percent of voters, up to 21 million voters, may be 

taken out of the electorate if we actually implement something like 

this nationwide, versus none. And, really, we are talking none for 

over 100 years of credible evidence of this type of fraud actually 

happening. It just does not happen, and it does not happen for a 

reason. 

We have to think about what this means practically. What this 

means is somebody who is intending to do this type of mischief has 

to, number 1, know that there is another voter on the voter registration rolls who is not the person, obviously; number 2, know 

that that voter has not voted early, has not voted absentee; number 

3, that person has to present him-or herself to a board of folks, of 

poll workers, with other voters around. There are plenty of witnesses in that situation. They have to know that that person who 

is administering the polling place does not, number 1, know the 

person who you are imitating and also does not know you, and then 

also you have to make sure again that that person has not voted. 

And then you get one vote. So that is just one vote. And if any of 

those things go wrong, that is 10 years in prison, a $10,000 fine. 

These things do not happen. It is just—there are real problems 

that disenfranchise real voters, and we are talking about millions 

and millions of real voters, and the responsibility of Congress and 

the States and the local jurisdictions is to remedy those problems 

and not to fixate on these phantoms of fraud. 

Senator WHITEHOUSE. Mr. King, you are an official in the Indiana Secretary of State’s office. You all have just had a primary. In 

the past primary held under the Indiana photo ID law, how many 

people did you catch impersonating other voters? 

Mr. KING. Senator Whitehouse, the Secretary of State’s office did 

not catch any individuals impersonating voters. Indiana elections 

22 

are administered by counties and, as we noted earlier, by precinct 

election boards. They are the only entities that can detect impostor 

voters attempting to vote. 

Senator WHITEHOUSE. And to your knowledge, they did not catch 

anyone impersonating another voter? 

Mr. KING. I am not aware of any such instance. 

Senator WHITEHOUSE. Do you know how many registered voters 

were turned away at the polls for failure to have a photo ID in the 

last election? 

Mr. KING. No. The only information I have had regarding that 

is with regard to the testimony of my fellow panelists today. 

Senator WHITEHOUSE. Okay. 

Mr. KING. So nothing but anecdotal evidence. 

Senator WHITEHOUSE. Ms. Karlan, you had your hand up? 

Ms. KARLAN. Yes, I just wanted to make two observations. The 

first is you do not have a constitutional right to play golf or to store 

your bags in a hotel, but you do have a constitutional right to vote. 

So I think balancing the burdens is different in those two examples. 

The second is suppose that we were even to concede that there 

is an occasional in-person vote impostor somewhere in the United 

States. Spencer Overton, who has done a pretty detailed study, has 

estimated that for every one impostor that you catch, you might 

deter 6,700 registered voters from casting a ballot. Now, suppose 

he is off by a factor of 10. Suppose he is off by a factor of 100. Suppose he is off by a factor of 1,000. You would still have a 6:1 ratio. 

And we think of that—and I said this in my prepared testimony. 

We think about it in the criminal justice system, there is a burden 

of proof that is very high before you can convict somebody. And we 

often use the kind of colloquial phrase, ‘‘Better that 100 guilty men 

go free than that one innocent person goes to jail. 

Suppose that we said we can deter in-person vote fraud, but for 

every in-person impersonator that we deter, six American citizens 

who are entitled to vote will be prevented from voting. It seems to 

me that that is an unacceptable trade-off on a constitutional right, 

especially when there are things that the States could do and 

things that the Federal Government could do that would decrease 

in-person vote fraud by cleaning up the voting rolls, by making it 

easier to have the voting rolls kept up to date, and by vigorously 

prosecuting if they find examples of in-person vote fraud. 

What is kind of striking is that we do not have even prosecutions 

for in-person vote fraud despite the—you know, and to say we do 

not have them because it must be so effective seems one of the 

oddest things. I mean, we would never say there must be a lot of 

crime out there because we have no reported incidents of a crime. 

It just seems a very odd way of thinking about things. 

Senator WHITEHOUSE. Good. Well, I appreciate the testimony of 

all the witnesses. I think I am going to call the hearing to its conclusion. Some of you have come a considerable distance. I appreciate it very much. It has been very instructive and helpful for us. 

I suppose we can look forward to perhaps a revisiting of the 

Crawford decision when we get an as-applied set of facts and perhaps a reconsideration at that time. But in the meantime, I do 

think that this is an important area for Congress to look at beVerDate Aug 31 2005 14:15 Oct 20, 2008 Jkt 043914 PO 00000 Frm 00028 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\44821.TXT SJUD1 PsN: CMORC
23 

cause, as Chairman Leahy so eloquently said, the foundation of all 

of the democratic rights we enjoy stands on the vote. And if the access to the vote on behalf of significant portions of America’s population is being manipulated or discouraged, that is something that 

merits our attention. 

The record of this hearing will stay open for one more week. If 

there is anything else that any of the witnesses would like to submit, you are more than welcome to do that, or anyone else, for that 

matter. And other than that, the hearing will now be adjourned. 

[Whereupon, at 3:57 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

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