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44–092 PDF 2008

S. HRG. 110–483 

OLDER VOTERS: OPPORTUNITIES AND 

CHALLENGES IN THE 2008 ELECTIONS 

HEARING 

BEFORE THE

SPECIAL COMMITTEE ON AGING 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

WASHINGTON, DC 

January 31, 2008 

Serial No. 110–20 

Printed for the use of the Special Committee on Aging 

( 

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html 

SPECIAL COMMITTEE ON AGING 

HERB KOHL, Wisconsin, Chairman 

RON WYDEN, Oregon 

BLANCHE L. LINCOLN, Arkansas 

EVAN BAYH, Indiana 

THOMAS R. CARPER, Delaware 

BILL NELSON, Florida 

HILLARY RODHAM CLINTON, New York 

KEN SALAZAR, Colorado 

ROBERT P. CASEY, Jr., Pennsylvania 

CLAIRE McCASKILL, Missouri 

SHELDON WHITEHOUSE, Rhode Island 

GORDON H. SMITH, Oregon 

RICHARD SHELBY, Alabama 

SUSAN COLLINS, Maine 

MEL MARTINEZ, Florida 

LARRY E. CRAIG, Idaho 

ELIZABETH DOLE, North Carolina 

NORM COLEMAN, Minnesota 

DAVID VITTER, Louisiana 

BOB CORKER, Tennessee 

ARLEN SPECTER, Pennsylvania 

DEBRA WHITMAN, Majority Staff Director 

CATHERINE FINLEY, Ranking Member Staff Director 

(II) 

C O N T E N T S 

Page 

Opening Statement of Senator Herb Kohl ............................................................. 1 

Opening Statement of Senator Gordon Smith ....................................................... 2 

Opening Statement of Senator Ken Salazar ......................................................... 71 

Opening Statement of Senator Claire McCaskill .................................................. 72 

Opening Statement of Senator Ron Wyden ........................................................... 73 

PANEL OF WITNESSES

Barbara Bovbjerg, director, Education, Workforce and Income Security Issues, 

U.S. Government Accountability Office, Washington, DC I605 .......................

Accompanied by: William Jenkins, director, Homeland Security and Justice, U.S. Government Accountability Office, Washington, DC 

Deborah Markowitz, Vermont secretary of state, Montpelier, VT ...................... 35 

Michael Waterstone, associate professor of Law, Loyola Law School, Los Angeles, CA ............................................................................................................... 41 

Jason Karlawish, M.D., associate professor of Medicine and Medical Ethics, 

University of Pennsylvania, Philadelphia, PA ................................................... 51 

Wendy R. Weiser, deputy director, Democracy Program, Brennan Center for 

Justice at NYU School of Law, New York, NY .................................................. 58 

APPENDIX 

Additional testimony submitted by Wendy Weiser, Brennan Center for Justice 

at NYU School of Law ......................................................................................... 87 

Testimony submitted by the American Bar Association ...................................... 218 

(III) 

(1) 

OLDER VOTERS: OPPORTUNITIES AND 

CHALLENGES IN THE 2008 ELECTIONS 

THURSDAY, JANUARY 31, 2008 

U.S. SENATE, SPECIAL COMMITTEE ON AGING, Washington, DC. 

The Committee met, pursuant to notice, at 10:50 a.m., in room 

SH–216, Hart Senate Office Building, Hon. Herb Kohl (chairman 

of the committee) presiding. 

Present: Senators Kohl, Smith, Salazar, McCaskill, and Wyden. 

OPENING STATEMENT OF SENATOR HERB KOHL, CHAIRMAN 

The CHAIRMAN. Good morning to one and all. We would like to 

welcome all of you to our hearing. Today this Committee will focus 

on older workers and the various barriers they face in exercising 

their right to vote. 

What sets this topic apart from others on the Aging Committee 

is that voting is not a benefit of our great society, but it is a right. 

Things like lower drug prices and consumer protection are things 

we would like to afford older Americans, and that we certainly 

think that they deserve. But the right to vote is fundamental and 

undeniable, and it does not expire with age. 

Twenty-four States will hold primary elections on Super Tuesday, just 5 days from now. Eight of these States facilitate voting 

in long-term care settings, either by setting up public polling locations on the premises, sending election officials into the facility to 

assist seniors, or helping nursing home administrators obtain absentee ballots in advance. 

But the other 16 States currently make no accommodations for 

voters living in long-term care settings, and long-term care administrators are offered no direction from election officials as to how 

they should assist their residents with their voting. 

Today I am sending a letter, along with Rules Committee Chairman Dianne Feinstein, to request that the Election Assistance 

Commission conduct research on voting within long-term care settings, and develop voluntary guidelines to help States facilitate 

such voting. We hope this will help address barriers to voting within these settings. 

There is also the matter of disabled older voters outside of the 

long-term care setting. Many States, like my own State of Wisconsin, do have laws on the books requiring that all polling sites 

are accessible to disabled individuals. 

Unfortunately, such laws do not always dictate reality and voting 

sites are often found to be not in compliance. During the 2000 elecVerDate Aug 31 2005 10:30 Sep 10, 2008 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 H:\DOCS\44092.TXT SAG PsN: JOYCE
2 

tions the GAO found that only 16 percent of polling sites surveyed 

nationwide were fully accessible to people with disabilities. 

This has a real impact on older voters because, in spite of their 

tendency to be more engaged politically, older voters with a disability are almost 50 percent less likely to vote than their peers 

without a disability. 

Several of my Senate colleagues and I will ask GAO to follow up 

on their previous study and monitor the level of accessibility during 

the 2008 elections. There is no reason for States to fall down on 

the job of voter accessibility. We know that innovative mechanisms 

exist to allow older and disabled Americans to vote, regardless of 

their physical disabilities. 

Ranking Member Gordon Smith, who is sitting beside me, hails 

from Oregon, where all residents vote by mail. As I understand it, 

that State has seen an increase in voting between 5 and 10 percent. We will also hear about Vermont’s vote-by-phone system 

today. 

Finally, our hearing today will also touch on the issue of voter 

ID. Currently the Supreme Court is considering whether an Indiana requirement designed to stem voter fraud will actually result 

in discriminating against the elderly, minority, and low-income 

populations who are less likely to have proper identification. Studies have found that seniors are more likely to lose their right to 

vote when voter ID is implemented. 

My State of Wisconsin has been battling over its own voter ID 

proposals. A 2005 study by the University of Wisconsin found that 

23 percent of people age 65 and older in Wisconsin do not have a 

driver’s license or other photo ID. A Supreme Court ruling on the 

Indiana law is expected by late June and is sure to have national 

implications for current and future voter ID laws. 

As you listen to our witnesses this morning, and when you leave 

this room and return to the barrage of nonstop election coverage, 

please keep in mind the message of today’s hearing. If we do not 

remove the barriers that prevent elderly and disabled citizens from 

exercising their right to vote, then we are for all intents and purposes disenfranchising them. 

So we thank our witnesses who are here today with us. 

We now turn to our distinguished Ranking Member, Gordon 

Smith, for his opening comments. 

OPENING STATEMENT OF SENATOR GORDON SMITH, 

RANKING MEMBER 

Senator SMITH. Thank you, Mr. Chairman. 

To all our witnesses, we welcome you. We thank you for your 

time and the attention you are giving to this vital question of how 

we make sure that our senior citizens continue to enjoy the right 

of the franchise in an unfettered way. 

Mr. Chairman, with your permission, I will put my opening 

statement in the record. It largely reflects your own. But I would 

just make these comments. 

Oregon has one way of doing it. It is vote-by-mail. It has been 

a success. It is a better success every election because it has gotten 

better every election in terms of the integrity of the ballot, and 

3 

shoring up loopholes that somehow add to or dilute the integrity 

of the result. 

So, I congratulate both our people for voting for this, and also the 

way our State officials have worked hard to implement it. It does 

make it easier for the elderly and the disabled to vote. 

However States choose to devise it, as is their constitutional 

right, I would simply say make it as easy as possible but emphasize the integrity of it. I feel like the Carter-Baker commission report as to real ID actually makes a lot of sense because of what 

I hear from seniors in Oregon. 

I know there are different opinions on this, but if you go with me 

to a nursing home in Oregon and you talk about voting, one of the 

concerns that is often expressed to me by seniors is that somehow 

their vote is added to, or taken away from, by those not constitutionally eligible to vote. 

I think they express that with such vigor because it was their 

generation that died in the hundreds of thousands defending the 

right to vote, the franchise. They don’t want to see it trampled 

upon by those who are not constitutionally eligible. 

So I feel very strongly about that. I think Oregon has got it right 

and I think we are getting it better all the time. 

But I do think—you know, obviously as you note, Mr. Chairman, 

the Supreme Court will take up this issue. After some of the 

memories we have had in recent elections with charges and 

countercharges of fraud, I think it is incumbent upon public officials to do everything they can to make sure that votes are accessible, but that they are lawful. We owe them both of those values 

and that ought to be our focus. 

Thank you. 

PREPARED STATEMENT OF SENATOR GORDON H. SMITH

Mr. Chairman, thank you for holding today’s hearing on older voters. 

From paper ballots and mechanical levers to vote-by-mail, as we do in my home 

state of Oregon, our nation has experimented with different ways for Americans to 

cast their votes. Although some of the mechanics of casting a ballot have changed 

over our country’s history, voting remains the ultimate demonstration of our democracy at work. That is why voter access to the polls and the preservation of the integrity of our voting system is imperative to ensure maximum voter participation and 

confidence in the system. 

America’s elderly encounter particular challenges when voting. Many individuals 

lack access to transportation to and from polling locations, while others have physical impairments that present challenges to cast a ballot. Furthermore, alternative 

forms of voting, such as absentee balloting, often can be complicated and confusing 

for seniors. I look forward to hearing from our witnesses about how we can properly 

address these challenges and identify opportunities for older voters to cast their 

votes with ease and confidence to ensure they remain engaged in elections. 

In addition to enhancing the accessibility of voting, we also must take measures 

to deter and detect fraud in our voting system. Several states have adopted Voter 

ID laws that require voters to present identification at the polls. And in 2005, the 

Carter-Baker Commission recommended states use ‘‘REAL ID’’ complaint cards for 

voting purposes. In large part, I support the recommendations of the bipartisan 

Commission to enhance the integrity of our voting system. However, we must look 

for ways that minimize the impact on seniors and persons with disabilities to encourage their participation in our democratic process. 

Mr. Chairman, I like you, want to ensure that seniors do not experience barriers 

to the voting booth when Election Day arrives. I look forward to hearing from our 

witnesses about innovative approaches to ensure elderly voters have appropriate access to cast a ballot in a simple and secure manner. 

Thank you Mr. Chairman. 

4 

The CHAIRMAN. Thank you, Senator Smith, for your very outstanding comments. 

On the witness panel, our first witness today will be Barbara 

Bovbjerg. Ms. Bovbjerg is director of education, workforce and income security issues at the U.S. Government Accountability Office. 

There, she oversees evaluative studies on aging and retirement income policy issues. Previously, Ms. Bovbjerg was assistant director 

for budget issues at the GAO. 

She is accompanied here today by her colleague, William Jenkins, Jr., who serves as director for Homeland Security and Justice 

at GAO, where he leads GAO’s work on emergency preparedness 

and response, the Federal judiciary and elections. I am also pleased 

to note that he received his Ph.D. in public law from the University 

of Wisconsin. 

Our second witness will be Vermont’s Secretary of State Deborah 

Markowitz. She is the first woman to be elected secretary of state 

in Vermont and is currently serving her fifth term in office. 

As secretary of state, Ms. Markowitz is the constitutional officer 

chiefly responsible for Vermont’s election and for providing education assistance to the State’s local officials. During her term she 

has implemented an ambitious election reform agenda including 

widespread voter education and outreach programs, some of which 

we hope to hear about today. 

Our third witness will be Michael Waterstone, who is an associate professor of law at the Loyola Law School in Los Angeles. Mr. 

Waterstone is a nationally recognized expert in disability and civil 

rights law. He is also a commissioner on the American Bar Association’s Commission on Physical and Mental Disability, as well as a 

board member of the Disability Rights Legal Center. 

Next we will hear from Dr. Jason Karlawish who is an assistant 

professor of medicine within the geriatric division at the University 

of Pennsylvania. He is also a fellow of the University Center for 

Bioethics, and the senior fellow on the Leonard Davis Institute of 

Health Economics. 

Dr. Karlawish’s research has included the ethical, legal, and social issues raised by persons voting in long-term care settings. 

Finally, we will hear from Wendy Weiser, deputy director of the 

Democracy Program at the Brennan Center for Justice at NYU law 

School of Law, where she directs the center’s work on voting rights 

and elections. 

She has authored a number of reports and papers on election reform, litigated ground-breaking voting rights lawsuits, and provided policy and legislative drafting assistance to Federal and 

State legislators and administrators all across our country. 

So we thank you all for being here today. 

We will start with you, Ms. Bovbjerg. 

5 

STATEMENT OF BARBARA BOVBJERG, DIRECTOR, EDUCATION, WORKFORCE AND INCOME SECURITY ISSUES, U.S. 

GOVERNMENT ACCOUNTABILITY OFFICE, WASHINGTON, DC 

Ms. BOVBJERG. Thank you, Mr. Chairman, Senator Smith. 

I am pleased to be here today with my colleague to speak about 

access to voting for older Americans. Voting is fundamental to our 

democratic system, and Federal law has generally required polling 

places to be accessible to the elderly and to people with disabilities. 

Yet, assuring access to the variety of polling places and voting 

methods used can challenge State and local election officials. The 

Help America Vote Act of 2002 has sought to improve this situation 

by requiring accessibility in voting systems and providing funding 

to support it. 

Our testimony today focuses on a number of factors that affect 

older voters, including their ability to travel to polling places, their 

ability to enter polling places once they get there, their ability to 

cast their votes using available equipment and assistance, and the 

ability to utilize alternative voting provisions, such as absentee or 

early voting or mail voting. 

Our statement is drawn from a broad range of GAO work, and 

particularly our onsite observations on accessibility during Election 

Day 2000. But I will speak first about travel to the polling place. 

Transportation challenges become more acute with age and can 

limit seniors’ ability to reach polling places. While most older 

adults drive, their abilities can deteriorate. Each year, roughly 

600,000 older people stop driving and become dependent on others 

for transportation. 

For those who do not or cannot drive, our previous work for this 

Committee found transportation gaps only partly filled by partnerships across governments and nonprofits. Thus, some older Americans may not be able to join their neighbors at polling places on 

election day. 

As for those who are able to come to the polls, the immediate vicinity of the polling place may pose additional obstacles. In our 

Election Day 2000 work we visited 496 polling sites in 100 counties 

across the country and examined each for features that could impede access. 

We looked at the parking areas, the route from those areas to the 

building entrance, the route from the entrance to the voting room 

and various other aspects of voting. These onsite inspections revealed that only about 16 percent of polling places nationwide were 

free of impediments that could prevent elderly or disabled voters 

from reaching the voting room. 

Of those sites with impediments, about two-thirds offered 

curbside voting. However, advocates for disabled Americans note 

that such measures still do not provide an opportunity to vote in 

the same manner as the general public. 

Our subsequent work on access suggests improvements since the 

2000 election. In our 2005 survey of all States and a sample of local 

jurisdictions, State provisions for polling place access have increased, and the funding provided through the new Federal election 

law has had an impact. However, until voting sites are inspected 

again we cannot know how much on-the-ground impact these provisions have had. 

6 

With regard to voting itself, that is, the system in the voting 

room that allows voters to cast their ballots, our findings were 

similar. On Election Day 2000 we saw challenges posed by the voting systems used and by the configuration of the voting booths, although some form of assistance was usually available in the voting 

room. 

Forty-three percent of polling places used paper or scanable ballots, which was challenging for voters with impaired dexterity. We 

also found that many of the voting booths were not appropriately 

configured for wheelchairs. But most offered assistance, and a 

small majority provided written instructions or sample ballots in 

very large type. None provided ballots or equipment for blind voters. 

But the situation has improved. Our 2005 survey of State and 

local jurisdictions reported an increase in State provisions for accessible voting equipment compared to our 2000 review, although 

difficulties in assuring reliability and security of new voting systems is causing some States to abandon new and potentially more 

accessible technology. 

Finally, let me turn to alternative methods. Federal law has long 

required that elderly or disabled voters assigned to an inaccessible 

polling place be provided with an alternative means for casting a 

ballot. Alternative methods may include curbside voting, early voting, or absentee voting, among other things. 

State provisions allowing alternative methods have generally increased since 2000. For example, the number of States that will 

carry ballots to a voter’s residence has risen from 21 to 25. In addition, 21 States reported allowing voters to vote absentee without 

requiring a reason or an excuse. That is three more than in 2000. 

Although such accommodation may be more commonly offered 

now, our experience in 2000 suggested there may be wide variation 

in implementation. 

In conclusion the increase in State provisions and reports of 

practices to improve accessibility is encouraging. The complexity, 

though, of the election system and the expense of changing it suggests that not all such policies will be in evidence at polling places 

on Election Day 2008. 

Yet, the aging in the American population and the concomitant 

growth in voters needing accommodation will increase the urgency 

for policies of this nature to be implemented on the ground. Clearly, improved access will require sustained attention from election 

officials at all levels of government. 

That concludes my statement. I await your questions. 

[The prepared statement of Ms. Bovbjerg follows:] 

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The CHAIRMAN. Thank you. 

Mr. Jenkins. 

STATEMENT OF WILLIAM JENKINS, DIRECTOR, HOMELAND 

SECURITY AND JUSTICE, U.S. GOVERNMENT ACCOUNTABILITY OFFICE, WASHINGTON, DC 

Mr. JENKINS. I am just here to answer questions about our work. 

The CHAIRMAN. Thank you. 

Mr. JENKINS. I led the work that did the 2005 survey. 

The CHAIRMAN. Ms. Markowitz. 

STATEMENT OF DEBORAH MARKOWITZ, VERMONT 

SECRETARY OF STATE, MONTPELIER, VT 

Ms. MARKOWITZ. Well, I want to begin by thanking you for inviting me here today. 

Vermont is a trade State. You should know, Chairman, that my 

family is from Milwaukee. So the Chudnotes from Milwaukee send 

their fond regards. 

You know, there was a time not long ago when the only people 

really concerned about how we ran our elections were those bureaucrats who actually did the work. We all know that changed in 

2000 when we saw dramatically how a poorly planned election really could call into question the legitimacy of our democracy. 

I guess my statement today really is that we have an opportunity 

to avoid a similar kind of problem in the future. You know, there 

is no reason that we need to wait for the system to break down in 

order to think about ways to fix it. 

According to the Census Bureau, we are going to have a tremendous aging of America. I am going to just give you a few statistics. 

There is more in my written statement. 

But the number of Americans who are 55 and older will nearly 

double between 2007 and 2030, from 20 percent of the population 

to 31 percent. That is tremendous. We don’t actually even need to 

wait that long to see a real rapid growth in what that will mean 

for us. By 2015 the number of Americans ages 85 and older is expected to increase 40 percent. 

So we need to be prepared. We need to think about how we run 

elections. Understand that, with medical advances, as people age 

they are going to continue to be active, more active than the previous generation of old folks. 

Of course, we also know this older generation, our generation— 

are a generation of voters and they will expect to be able to continue to exercise the franchise. So those of us who are running elections need to think ahead. 

As we plan for future elections, what I would ask this Committee 

is to keep in mind our underlying value that, as a democratic society, we should facilitate access to voting the best we can. That 

should be our first obligation, is to make sure that people who 

want to vote have an opportunity to vote. At the same time, we 

have to have in place safeguards to ensure its integrity. So it is 

this balance between access and integrity. 

I have got some suggested steps that we take across the country 

to prepare for the aging of America, and I would like to just go 

through them pretty quickly. 

36 

One is I think we have an obligation to make sure that in every 

State our elderly voters have the option of voting by mail or by absentee ballot. It is something that you have seen, Senator Smith, 

in your State as being a very successful way to reach older voters. 

We find in Vermont that is how many of our older voters prefer to 

vote. There is no reason why it can’t work in every State in this 

country. 

We have to ensure that our polling places are convenient to our 

older voters, like they do in your State, Senator Kohl, sometimes 

having polling places in their senior centers. That is a fabulous 

idea. 

Making sure that there is transportation to the polling places. 

That is essential. 

We also must rethink our polling places to make sure that not 

only are they convenient for people with disabilities, but we are 

thinking about the needs of older Americans. 

For example, there needs to be chairs available. Something as 

simple as chairs, so that when somebody is waiting in line they 

don’t have to stand up. We know that may be one of the most significant barriers to older folks coming and voting at the polling 

places, not knowing how long they are going to be asked to be on 

their feet. 

We also have to explore new ways to reach voters who are in residential care facilities to ensure that they are provided an opportunity to vote, and to prevent voter intimidation and fraud. 

One of the things that I hear about in Vermont is a fear of an 

overzealous and perhaps over-political activities director in a nursing home is influencing all of the residents to vote in a particular 

way. We can avoid that. There are thing that we can do today so 

that in the future we can make sure that there is security in that 

voting system in our residential care facilities. 

Finally, we have to be sure that States that choose to adopt voter 

identification requirements do so in a way that doesn’t disenfranchise the elderly who no longer have a valid driver’s ID license or 

government—or other governmental-issued identification. I believe 

that is a serious problem, not just in Vermont but across the country. 

I would like to mention Vermont’s approach, some of the things 

we are doing in Vermont to try to get ready for the aging 

Vermonters. 

One is we are one of the five States that use the IVS Vote-ByPhone system to permit voters with disabilities, the elderly and 

others to vote privately and independently at our polling place. 

With this system voters use a telephone keypad to mark a paper 

ballot which is then centrally counted and added to the election 

count at the end of the night with the rest of the counting of the 

ballots. 

So far we have deployed this technology in our polling places, but 

it has got tremendous opportunity for folks to use at home. There 

are some additional security steps that we have to put in place in 

order to fully deploy it so that voters can use the phone at home. 

But for an elderly voter, somebody with a disability where they 

can’t mark their ballot on their own, they shouldn’t have to go to 

the polling place to have that privacy and independence in their 

37 

vote that is required under HAVA when there is technology available, like the vote-by-phone system, to let them have the benefit of 

the absentee ballot, but still have the privacy that the technology 

in a polling place would offer. So we are hoping that in the future, 

by the time we have got this demographic, we will have our voteby-phone ready. 

Finally, mobile polling in the 2008 election we plan to implement. It is a pilot project where trained election workers will be 

taking ballots into our nursing homes, having an election day in 

the nursing homes, and assisting people who need assistance in bipartisan pairs. It is that pairing of election workers that will prevent collusion, prevent fraud, and ensure that people in residential 

facilities have the opportunity to vote without the opportunity for 

fraud. 

So I thank you very much and I am happy to take questions 

later. 

[The prepared statement of Ms. Markowitz follows:] 

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The CHAIRMAN. Thank you very much. 

Mr. Waterstone. 

STATEMENT OF MICHAEL WATERSTONE, ASSOCIATE 

PROFESSOR OF LAW, LOYOLA LAW SCHOOL, LOS ANGELES, CA 

Mr. WATERSTONE. Mr. Chairman, thank you for inviting me. 

Voting is a huge process, ranging from voter registration to 

counting. This morning I will be talking about one part of that 

process: challenges faced by older voters when they are actually 

voting. 

I will be discussing older voters and voters with disabilities more 

or less together. These groups are linked. As the population ages, 

more people develop mobility, cognitive, and manual dexterity impairments. 

In brief, I will suggest that for older voters with these types of 

impairments the way that we have administered elections has 

cheapened their voting experience. This has occurred both at the 

polling place and with absentee voting. 

I will conclude by discussing how we can create a better voting 

experience for these voters in the 2008 election and beyond. 

Our goal must be that these voters are treated with equal dignity 

in the voting process, that they get assistance when it is truly desired, but otherwise get to vote secretly and independently like 

other citizens, either at the polling place or by absentee ballot. 

We don’t need to look any further than next Tuesday to see the 

real life significance of this issue. A huge number of voters, including older voters, will go to the polls on Super Tuesday, or have already done so via absentee voting. Why? 

The most straightforward answer is to help pick a President. We 

should have procedures that protect accurate voting without fraud 

or undue influence. 

But these people also vote to demonstrate their membership in 

the community. In meeting the challenges faced by older voters we 

need to focus on both of these parts of the right to vote. 

What are the voting experiences of older voters who may have 

physical or mental impairment? At the polling place, those who use 

wheelchairs may encounter high door thresholds, ramps with steep 

slopes, and a lack of accessible parking. 

More than 15 years after the passage of the Americans with Disabilities Act, inaccessibility persists. Voters with various types of 

impairments who are able to get inside the polling place may not 

be able to cast a secret and independent ballot. 

Older voters with manual dexterity impairments can have trouble using paper ballots. Voters with cognitive or vision impairments 

may have difficulty reading certain ballot formats. 

The Help America Vote Act, which explicitly requires secret and 

independent for voters with disabilities, will help older voters. But 

although HAVA is still relatively new and more study is needed, 

initial reports suggest that, like the ADA’s accessibility requirements, implementation and enforcement has been slow and uneven. 

What about absentee ballot voting? While this can be a useful 

tool to bring older voters into the voting process, it is not a substitute for accessible polling places, at least to the extent they exist 

42 

for other voters. When people who would otherwise travel to the 

polling place are effectively forced to vote in private, it sends a 

harmful signal about their full inclusion in the community. 

As currently practiced, absentee balloting is not fully accessible, 

meaning that older voters with impairments may have to rely on 

the help of others. This can be helpful and we should establish 

guidelines for appropriate assistance, but it can also increase the 

potential for fraud, coercion, or unwarranted capacity assessments. 

This is not respectful of the equal dignity of older voters. 

What can be done? I actually believe we are at a point where our 

Federal laws are fairly strong, at least on paper. With aggressive 

implementation and enforcement, combined with some law reform 

and State creativity, great strides can be made. Let me offer three 

concrete suggestions, although I have given more in my written 

testimony. 

First, the secret and independent ballot provisions of the Help 

America Vote Act must be aggressively enforced. The primary 

means of enforcement is with the Department of Justice which has 

not made this a priority. I support amending HAVA to include a 

private right of action, or supporting judicial construction of one. 

Second, we need heightened enforcement of the ADA’s requirement that polling places be accessible. It is unacceptable that so 

many years after the ADA’s passage there are still violations. 

Given recent Supreme Court decisions, ADA enforcement has become more complicated but this must become a priority, ideally 

with public enforcement authorities taking the lead. 

Third, we should support improved practices on absentee voting. 

Absentee balloting should be done in a way that supports secret 

and independent voting to the greatest extent possible, affirmatively providing people appropriate assistance, yet also minimizing 

chances of undue coercion and error. 

Suggestions for reform have included easing the application process, more accessible ballots—including HTML ballots and phone 

voting, as Secretary Markowitz has discussed—guidance for caregivers, and mobile polling. 

I thank you again for the fastest 5 minutes of my life and I look 

forward to your questions. 

[The prepared statement of Mr. Waterstone follows:] 

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The CHAIRMAN. Thank you, Mr. Waterstone. 

Dr. Karlawish. 

STATEMENT OF JASON KARLAWISH, M.D., ASSOCIATE PROFESSOR OF MEDICINE AND MEDICAL ETHICS, UNIVERSITY 

OF PENNSYLVANIA, PHILADELPHIA, PA 

Dr. KARLAWISH. Thank you. 

Let me begin with this hearty thanks to the members of the 

Committee and their excellent staff for having this important hearing and for inviting me to speak. 

So let me tell you two stories. On Election Day, 2004, my colleague, Dr. John Bruza, was visiting a patient of his in a nursing 

home in Philadelphia, and she was in tears of anger and frustration. She wanted to vote but she couldn’t vote. Her polling place 

was at a far away district, and she hadn’t had the chance to reregister. She had no way to get there, and she had missed the application for absentee balloting. 

November of 2007 a candidate for the Philadelphia council lost 

by just 120 votes. When the machine count was tallied he had won, 

but when absentee ballots were counted he lost. The newspapers 

report that he claims improprieties in how absentee ballots were 

handled at several nursing homes and he has now filed suit in Federal court. 

What do those two cases tell us? They tell us that elderly voters, 

especially elderly voters who live in long-term care settings, are 

suffering doubly. First, people decide whether they can vote and, 

second, people steal their votes. 

I think you all here have a great opportunity to change this. I 

want to tell you the nature of the problems with some data that 

we have gathered from our research, and then suggest a set of solutions. 

I want to share with you the results of studies my colleagues and 

I have done examining voting in long-term care. In particular we 

have done two surveys, one in Philadelphia after the 2003 municipal election, and the second was in 2006 after the general election 

in the State of Virginia. 

Both Pennsylvania and Virginia share a common feature. Unfortunately, like 27 other States, they have absolutely no guidelines 

for accommodations for residents in long-term care facilities. 

As you know, the number of Americans with cognitive impairment is increasing. Many of these people live in assisted living facilities or in nursing homes. In these settings, staff have substantial control over how residents live their day-to-day lives; what they 

can do and what they can’t do and this includes voting. 

Unfortunately, election officials have paid limited attention to assuring the residents have access to the ballot, and also preventing 

unscrupulous people from stealing their votes. 

Next week, 24 States will be in Super Tuesday, as has already 

been pointed out by Senator Kohl. Eight of them have policies to 

address voter accommodations in long-term care settings. 

But unfortunately, of those guidelines that exist, they are largely 

inadequate. They lack proactive steps to get people registered, they 

rely upon the resident to apply for an absentee ballot, they spring 

52 

into effect when certain thresholds are met, like a certain number 

of absentee ballots being ordered, and so on. 

But the majority of States, as I say, don’t have any guidelines 

for voting in long-term care. So what does that mean? Well, let me 

tell you what we found from our research. 

The staff of a nursing home, typically a social worker or an activities director, are in charge of voting; not elections officials. 

No. 2. There is substantial and unnecessary variability in registration and voting procedures, and in staff attitudes about who 

has the right to vote, and this variability likely disenfranchised 

voters. 

In fact, many facilities have reported to us that there were residents who wanted to vote but were unable to vote, largely because 

of remediable procedural problems like failure to order ballots, to 

get them registered, or being unable to get people to the polls. 

Much of the voting in long-term care facilities is absentee balloting. At some facilities up to 2/3 of the residents voted absentee. 

This kind of balloting is well recognized as the source for voter 

fraud. 

Most of these residents need assistance voting, and most of that 

voting is provided by one person, the social—the activities director 

or the social worker. 

Finally, many of the facilities reported to us that the staff assessed whether a resident is capable of voting, and the methods 

they use likely disenfranchise people who arguably were probably 

capable of voting. 

I am going to read you this quote from an interviewee. She said 

to us, ‘‘You know, the right to vote is such a basic right. To feel 

like you are taking that away from someone, particularly if they 

are borderline, guidelines would help to make sure there are fair 

objective applications. Not, ’I am sure she is not going to vote for 

the person I want so I am not going to take her to the polling place 

or help her with her ballot.’ You do have quite a bit of power and 

authority over folks.’’ 

What have we learned? Our studies show that in States without 

guidelines for voting in long-term care, elections officials play a 

very limited role, access to the polls is really determined by the 

staff and the attitudes of that staff and these practices are arguably largely unacceptable. 

In the Super Tuesday States that have no guidelines, the residents of long-term care facilities will likely suffer the very experiences we have talked about, and multiplied over many, many 

States. 

Making a long-term care facility a polling site is not a solution 

to this problem. Expanding access to absentee ballots is not a solution to this problem. I would be happy to discuss in the question 

and answers why that is the case. 

The solution is mobile polling. Mobile polling means that the 

elections officials or their equivalent groups go to the facilities prior 

to registration deadlines to encourage and solicit registration. Then 

in the days prior to the election they go back to the facility, they 

assist voters in gather—completing their ballots, and they gather 

the ballots and they bring them back. These officials are trained to 

53 

address the unique issues of voting by the elderly, such as how to 

assist a voter. 

Models do exist for mobile polling. In Australia and Canada it is 

the norm. Maryland has a great set of guidelines, but they are underfunded. 

To achieve this goal of universal mobile polling in the United 

States of America, I would propose the United States Election Assistance Commission conduct research to develop a model set of 

best practices for mobile polling, training for election officials to implement them, and then partner with States to test their feasibility 

and to refine them. 

Thanks so much for this opportunity to talk to you. Happy to address questions. 

[The prepared statement of Dr. Karlawish follows:] 

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The CHAIRMAN. Thank you very much, Dr. Karlawish. 

Ms. Weiser. 

STATEMENT OF WENDY R. WEISER, DEPUTY DIRECTOR, 

DEMOCRACY PROGRAM, BRENNAN CENTER FOR JUSTICE AT 

NYU SCHOOL OF LAW, NEW YORK, NY 

Ms. WEISER. Thank you very much and thank you to the Committee for holding this important hearing. 

As you know, the issue of voter ID is currently before the Supreme Court and it is one of the most important voting rights 

issues facing Americans today. It could transform how Americans 

vote and which Americans vote. 

Whatever your views are on voter ID in general, the kinds of restrictive voter ID proposals we have seen across the country, like 

the Indiana law before the Supreme Court, are unusually harmful 

to older Americans. So we strongly urge this Committee to take a 

serious look at how voter ID requirements affect older Americans 

and disabled Americans. 

I have submitted detailed written testimony. Today I will just 

stress three points. 

First, restrictive voter ID requirements could disenfranchise and 

burden huge numbers of older Americans. The fact is that millions 

of older Americans don’t have the kinds of documents that are 

called for by these new voter ID laws which are typically Stateissued photo IDs or proof of citizenship documents. 

The Brennan Center recently did a national survey that found 

that 18 percent of citizens over 65 don’t have current governmentissued photo IDs, as compared to 11 percent of voters overall. 

Other major social science studies have similar findings. 

It is also especially hard for older Americans to obtain these 

kinds of IDs. To get a photo ID you typically need ID, including a 

birth certificate. But many older Americans, as it turns out, don’t 

have birth certificates and they would have to expend money and 

effort to obtain one. For some, these efforts would be futile—like 

for one of the plaintiffs in the Indiana case, 85-year-old Thelma 

Ruth Hunter who, like many other older Americans, was born at 

home and, thus, there is no record of her birth. 

For the typical older American who doesn’t drive, who has a disability, and who lives on a fixed income, it is a real burden to have 

to travel to a government office and pay a fee twice just to be able 

to later go to the polls and vote. 

These laws hurt voters for no good reason. It is hard to imagine 

what purpose would be served by disenfranchising Valerie Williams, who is one of the Indiana voters who was barred from voting 

in the lobby of her retirement home, even though she had an expired driver’s license, a current telephone bill, and a Social Security letter with her address. 

Extensive studies show that the one kind of fraud targeted by 

these ID laws—commonly called impersonation fraud—almost 

never happens. The States already have adequate mechanisms in 

place to identify voters and to protect elections from this kind of 

fraud. 

While we really must take the fear of the voter fraud that Senator Smith mentioned very seriously, we should act only on those 

59 

fears that are based in fact and make sure that voters are educated 

about which ones are not. 

The second big point I would like to make is that this isn’t just 

an abstract, remote issue. It could actually affect the 2008 elections. 

Restrictive ID requirements are now in place in three States. If 

the Supreme Court upholds Indiana’s law, we could see stepped-up 

efforts to impose these kinds of requirements across the country. 

In 2007 there were restrictive ID bills introduced in 31 States, 

including all but three of the Super Tuesday States and Georgia, 

which already had an ID law. This year already nine States have 

introduced new restrictive photo ID bills and 13 have restrictive 

proof of citizenship bills pending as well. 

This election has generated an unusually high level of interest 

among voters in both parties, many of whom had not previously 

participated. It really would be a travesty if many of these newly 

enthusiastic voters were thwarted because of onerous and unnecessary ID requirements. 

The third point that I would like to make is that, regardless of 

how the Supreme Court rules in the Indiana case, there are a number of affirmative steps that Congress can take to ensure that ID 

requirements don’t disenfranchise older Americans and Americans 

with disabilities. I will go quickly through some of them. 

First, Congress should continue to resist efforts to impose new ID 

requirements at the Federal level. 

Congress should also protect voters from disenfranchisement as 

the result of State ID requirements such as by barring the most restrictive kinds of ID requirements, or at least by requiring reasonable alternatives for voters without IDs. 

Congress can also make it easier and less expensive for Americans, and especially older Americans and indigent Americans, to 

obtain Federal IDs and citizenship documents. 

Another step would be to repeal the new onerous provisions of 

the REAL ID Act, which is going to make it much harder and more 

expensive for people to get State IDs. 

Finally, Congress can provide resources for poll worker and voter 

education on voter ID requirements. 

In closing, there is something especially troubling about telling 

a person who has been voting in her community for her whole life 

that she can no longer vote unless she goes through a time-consuming and expensive process that may or may not get her the documents that she needs to vote. 

Older Americans and our democracy deserve better than that. 

Thank you. 

[The prepared statement of Ms. Weiser follows:] 

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The CHAIRMAN. Thank you very much. 

Before turning to questions for the panel, we would like to ask 

our two Senators, Senator Salazar, Senator McCaskill, for any comments they wish to make. 

OPENING STATEMENT OF SENATOR KEN SALAZAR 

Senator SALAZAR. Thank you very much, Chairman Kohl and 

Ranking Member Smith, for giving this Committee the opportunity 

to hear from this excellent panel of witnesses. 

The right to vote we all know in this Capitol is fundamental to 

our democracy. In the past few weeks we have seen Americans vote 

in primaries and caucuses from Iowa to Florida. As we know, next 

Tuesday we will see them voting in an additional 24 States. According to all these polls Americans are voting in record numbers. 

Too often, following an election stories begin to emerge regarding 

the long lines at the polling places, lack of access for disabled individuals, or issues with voting machines. Reports show—and we 

know from our own experiences—that senior voters are particularly 

impacted. 

As we move forward with the 2008 election and beyond, there are 

a few principles that should never be forgotten. 

First, every American that is eligible and registered to vote must 

have access to the ballot box. 

Second, elections must be transparent and exhibit the highest 

level of security. 

Third, mandatory requirements that are burdensome and may 

inadvertently disenfranchise voters should be avoided. 

Fourth, every vote must count. 

I believe these principles will enhance American confidence in 

the election system and alleviate some of the barriers that seniors 

face in the election process. 

Colorado’s senior population has grown 26 percent since 1990. 

The 2000 census counted almost half a million persons over age 65 

in my State of Colorado. I am proud to say that more than 80 percent of these seniors are registered to vote, higher than the national percentage. 

Still, seniors in my State of Colorado face challenges similar to 

those faced by seniors across the country. According to the Colorado Legal Center for People with Disabilities, several reports were 

filed following the 2006 election claiming that seniors were unable 

to cast votes due to long lines at the polling place. Other reports 

claim that many seniors were unable to vote due to lack of transportation and difficulty reading the ballots. 

Myself was in some of those very long lines at several polling 

places in Colorado, where seniors had to stand outside sometimes 

until 10 or 11 o’clock at night when the polling places had closed 

at 7. It was an imposing and undue hardship on many of them and, 

indeed, some of them had to leave their polling line and forego 

their right to vote. I think this is wrong. 

There are many efforts underway in Colorado to try to address 

some of these concerns. For example, the Colorado Legal Center for 

People with Disabilities is working with the State parties. The Centers for Independent Living and the Colorado Cross-Disabilities Coalition to increase and improve transportation assistance for senVerDate Aug 31 2005 10:30 Sep 10, 2008 Jkt 000000 PO 00000 Frm 00075 Fmt 6633 Sfmt 6633 H:\DOCS\44092.TXT SAG PsN: JOYCE
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iors on election day. These efforts are incredibly important and I 

encourage other groups to join the cause. 

The increasing number of seniors across the country support the 

need for policy solutions to the problems that seniors face voting. 

I want to thank Chairman Kohl and Senator Smith for putting 

a focus on this particular issue. I would hope that one of the outcomes of the hearing is that we might be able to take some concrete action to try to make sure that we have a good election in 

this November. 

For example, Mr. Karlawish, your comment about universal mobile polling places is something that perhaps we could do, Chairman Kohl, with a letter that we might author out of this Committee as a result of this hearing that we could send over to the 

Election Advisory Commission, asking them to look at how we 

might be able to implement some of those solutions. 

So again, I thank you very much for this hearing and I thank 

the witnesses for their great testimony this morning. 

The CHAIRMAN. Thank you. 

Senator McCaskill. 

OPENING STATEMENT OF SENATOR CLAIRE MCCASKILL 

Senator MCCASKILL. Thank you very much. I also thank you and 

the Ranking Member for this hearing. It is very important. 

You know, I have kind of been confused by this massive effort 

in our country for voter ID laws. They passed one quickly in Missouri, immediately preceding the November 2006 general election. 

I am, I hope, not one around here to resort to ugly partisan politics. I think we need to get away from that. 

But the facts are the facts. I know who pushed this law in Missouri and I know why they pushed it. It was very similar to the 

Indiana law and our Missouri Supreme Court threw it out of court, 

threw the law out before the election so it did not go into effect. 

If in fact these laws have been introduced in 31 States, you 

would think there would be a massive amount of evidence that 

fraud by misidentification is rampant in this State, in this union, 

in this country. I have yet to see any evidence that there is a significant amount of fraud in this country based on misidentification 

at the polls. 

When I was the State auditor I actually did an audit of one of 

the election boards in St. Louis. We did find a few problems, but 

it was more likely someone voting that had a felony record that 

shouldn’t have, not that they had somebody else’s ID or they 

weren’t who they said they were. Or someone who actually—they 

hadn’t cleaned up the rolls and somebody who had used their IDs 

to vote two different places on one day. Infinitesimal amount. 

But we didn’t find—and I am not aware of anywhere where there 

has been found, that people are going to the polls and pretending 

they are somebody they are not to try to vote. 

Now on the other hand, we can all tell lots of stories about people who want to vote who do not have this ID. Frankly, are going 

to be confused and discouraged by the requirement that they get 

it. Most of those are seniors. 

The most important point I want to make in this opening statement is one out of five African-American seniors in this country do 

73 

not have the documentation because their mothers were not allowed to deliver them in a hospital. 

Now really, do we want to make these men and women whose 

parents were not allowed to give birth in a hospital because of the 

color of their skin, do we really want to make it harder for them 

to go and cast their vote in this grand and glorious democracy? I 

do not think we do. 

I think we should be doing the opposite of what many of these 

laws are doing, making it easier in nursing homes, easier for those 

who have been disenfranchised. 

The idea that we are reverting to some kind of public policy that 

is going to put stumbling blocks between those who are least advantaged in our society and the ballot box is absolutely repugnant 

to me. 

I appreciate all of your testimony and I appreciate the hearing 

today. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you. 

Senator Wyden. 

OPENING STATEMENT OF SENATOR RON WYDEN 

Senator WYDEN. Thank you very much, Mr. Chairman. 

I think Senator Smith may have touched on it, but I guess it is 

fair to say the two of us are the country’s first mail-in United 

States Senators. 

What has been so striking in this discussion is, at the outset, 

people said vote-by-mail would be beneficial to Republicans. Then 

I happened to win the election so Democrats thought it was a good 

idea and Republicans didn’t think it was a good idea. 

Finally, the people of our State basically indicated that they had 

enough of all the nonsense, put it on the ballot and Democrats and 

Republicans alike said this works, this makes sense, it saves 

money, it is convenient, it is accessible, there is essentially only upside and downside. 

Now, I gather—and I may have not picked up on all of your testimony. Dr. Karlawish. 

Dr. KARLAWISH. Karlawish. 

Senator WYDEN. I understand you had a reservation about voteby-mail because you were interested in a more mobile kind of system where, in effect, you could get out and see people. 

Now, provision was made in the Oregon system through the 

county elections department for people from the elections department, one Democrat, one Republican, to in effect go and see those 

kinds of individuals. We have found that there has not been any 

particular controversy associated with either side of the system, the 

vote-by-mail system nor the going to visit people. 

Does that help address the concern that you have that people 

from the counties have done an objective kind of fashion so as to 

ensure integrity for the franchise is addressed? 

Dr. KARLAWISH. So your State presents a unique situation which 

is there is no polling place to go to. Wrapping around that fact, in 

a long-term care setting what you want to make sure is, given the 

nature of the residents there and their disabilities, that their ability to get their absentee ballot is facilitated. 

74 

That when it arrives it arrives with election officials it isn’t 

stored in a box somewhere so it can be stolen. That assistance with 

completing it is available by elections officials, and that election officials take it away from the long-term care facility. 

Short of that, what you have is a setup for either not getting 

your absentee ballot or having someone else get your absentee ballot, or unscrupulously assist you with it or otherwise destroy it, et 

cetera. So—— 

Senator WYDEN. On that count we have had no problem with 

anything resembling an institutional setting. In other words the 

people, say, at a long-term care facility—I was director of the Gray 

Panthers for a long time and know those folks—have helped make 

this really flow seamlessly from an institutional setting. 

I thought your point with respect to older and disabled folks by 

themselves was an interesting one because, there, someone might 

have a question about whether they were getting a ballot, whether 

they needed assistance. That is why the provision that I described 

seemed to be particularly useful for them. 

Does that affect your judgment? 

Dr. KARLAWISH. The ideal system is one where people who we 

trust go out and deliver ballots. Deliver them, assist people who 

want assistance, and take them back for counting. That is the ideal 

system. 

Senator WYDEN. I think we have got every one of those features. 

For purposes of taking back for counting, that is essentially the 

postal system. That is essentially what older people have found the 

most convenient to them, that they can put a stamp on something 

if they are in a senior housing project or something of that nature. 

Dr. KARLAWISH. But in a nursing home—I am not kidding you, 

but the average resident is not keeping a set of stamps and keeping 

their mail. 

So what you would like is a system where at the nursing home 

they show up and say we have got all the absentee ballots here for 

all the residents here who are registered. OK? We being two people 

from the Oregon State Electoral Commission are going to be in a 

room and those who want to come to this room to fill out their ballots, come one, come all. Or those who can’t come to this room we 

will go to your room and help you fill it out. 

We will do this a couple days before election day so that there 

is time to catch people who missed that day. We will then take 

those filled out ballots back to the Oregon Electoral Counting Commission and count them. 

Senator WYDEN. We are talking past each other. We have virtually every one of those features—— 

Dr. KARLAWISH. That is fantastic. 

Senator WYDEN [continuing.] In the Oregon vote-by-mail system. 

So you will back it in the future when we want to take it nationwide? 

Dr. KARLAWISH. I think that—I actually like—your system as it 

is essentially like Australia’s system, because its paper ballots, et 

cetera. 

If you can assure that elections officials are going to facilities 

without triggers like there has to be more than 20 absentee ballots 

or a request to come, et cetera, and doing what I described otherVerDate Aug 31 2005 10:30 Sep 10, 2008 Jkt 000000 PO 00000 Frm 00078 Fmt 6633 Sfmt 6633 H:\DOCS\44092.TXT SAG PsN: JOYCE
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wise, that is a great system. Put a stamp on it and let us get it 

out there. 

Senator WYDEN. Any of you other panelists want to comment on 

it? We have had it for a decade. No allegations of fraud and abuse. 

I think Senator Smith will recall in our first campaign, particularly 

low-key, quiet, you know, affair that—when I prevailed by 18,220 

votes. We always say who is counting in these kinds of instances. 

Senator Smith was constantly accosted about whether there was 

fraud and the like. To his great credit, he said there wasn’t any. 

The system worked well. 

So we have got 10 years worth of history. I think it is fine to debate what to do in the future, but my view is if the country had 

this November what has worked for Oregon for a full decade we 

could take care of this problem. 

I know this November, for example, there are people who are 

going to show up at various polling places once again, after this debate has gone on and on and on, and they are going to be told, no, 

they don’t vote there. They are registered somewhere else. They are 

going to be traipsing all around, hither and yon. At some point 

after you go through this for several hours you give up. 

With our vote-by-mail system you don’t have any of that. If you 

have any confusion about where you live or any kinds of questions 

with respect to the initial contact you have got several weeks to 

work it out. 

So I want to give you other panelists to weigh in with—an opportunity to weigh in with a ringing endorsement of the Oregon voteby-mail system. 

I see my Chairman has his light on and I probably have taken 

more than my share of time. Would any of you other panelists or 

members like to weigh in? I would be interested in your thoughts 

as well. 

Ms. MARKOWITZ. Well, the Secretary of State of Vermont, and 

also the immediate past president of the National Association of 

Secretaries of State. I will tell you that, you know, nationally we 

are really looking closely at vote-by-mail. 

There are other States that are beginning to experiment with it 

more broadly. Like I know in Washington State there are some 

counties there who are conducting all mail elections. 

In Vermont in particular we are not quite ready for it. In part 

it is because we need to wait until our voter rolls are cleaned up. 

The Help America Vote Act for the first time required us to put in 

place a State-wide voter registration data base. 

Because of the rules of the Federal Motor-Voter laws, many of 

the towns that had kept the list had voter checklists, people who 

hadn’t been taken off because they hadn’t given—hadn’t notified 

the town that they had moved to a new place and registered in a 

new place. 

So until those voting rules are clean, it actually is expensive for 

us. We have looked at it. We would be sending out a lot of ballots 

to people who are moved. 

I suspect though that as time goes on and the Help America Vote 

Act really comes into kind of fruition—you know, it takes some 

years of investment before you get the return—that vote-by-mail 

will become more realistic for more places. 

76 

Right now the way I look at it in Vermont is we make it very 

easy for people to vote by mail, to ask to be sent a ballot by mail 

and return it by mail. It is one of the choices in our bag of tricks 

to make it easy and convenient for voters. 

I have been working with Jason on—Dr. Karlawish, excuse me— 

on developing a pilot project to bring mobile polling to Vermont 

this next election to see if that is another tool that will make a significant difference, both in access to voting and the integrity of the 

process. 

Senator WYDEN. Other panelists? Vote-by-mail? 

Well, thank you all very much. I hope that we will go beyond 

model projects and demonstration exercises. 

I think the country says to itself, at a time when we seem to be 

capable of changing our Blackberries and getting an updated, you 

know, model every 60 days, how can it be that we haven’t figured 

out a way to preserve something that our country is all about, that 

the founding fathers felt was so sacred. 

We think we have found it in Oregon. Certainly there are some 

logistical questions about communities that may not have the voting rolls up to date and the like. That will be true for any system. 

That will certainly be true for any system that once again this fall 

is going to have people, you know, turned away, ballots not counted, things of this nature. 

But when you have something where the fundamentals are 

sound, where it is convenient, you save money, people feel that it 

preserves the paper trail, which I know all of you feel so strongly 

about, it just seems to me to be a shame that we don’t put it in 

place for the country. 

So I thank you. 

Thank you for the extra time, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Wyden. 

Senator Smith. 

Senator SMITH. Thank you, Mr. Chairman. 

I would echo Ron’s views on vote-by-mail. It does work for Oregon and it is a good model for other States as they look for ways 

to get elections better. 

You know, I generally agree with what Senator McCaskill said, 

that we are arguing around the edges. We don’t want to in any way 

prohibit lawful, constitutionally living people from voting. 

I am reminded, though, that this really is a problem in terms of 

undermining confidence in the governments that are elected in 

close elections where evidence exists that somebody did something 

wrong. 

Recently in a neighboring State to Oregon there was a gubernatorial election that one candidate had won the first two recounts. 

In the third recount the current Governor won by I believe 150 

votes. 

There was an inescapable fact that in one county there were 

more votes cast than there were registered voters. Not by a little, 

but by a lot. I hear people groan about that all the time. That is 

not fair to the winner or the loser, frankly. It does undermine the 

ability then to go and govern. 

As I think, Wendy, about some of your comments, I don’t know 

of any issue since I have been a U.S. Senator that has been more 

77 

divisive in this body than the issue of illegal immigration. I don’t 

want an impediment to someone voting to require documents that 

makes it impossible for them to vote. 

But there is a practical issue. I am really asking for your knowledge of the law and something that I am hoping to learn from you. 

We have Motor-Voter. We have many States who give driver’s licenses to illegal aliens without any proof of their legal right to vote. 

Or is there something in the State law that requires, before you go 

to Motor-Voter, that they have to prove that they are legally in the 

United States? 

I ask this question because seniors regularly say to me, ‘‘I am 

outraged at the thought that my vote will be diluted or added to 

by someone who is not here constitutionally, lawfully voting.’’ 

Ms. WEISER. I think the answer is simple: Federal law—actually 

the Motor-Voter law itself—prohibits States from registering people 

who aren’t lawfully eligible to vote, including noncitizens, as do 

other Federal criminal laws. 

Senator SMITH. So Motor-Voter doesn’t automatically register 

driver’s license applicants to vote. 

Ms. WEISER. That is right. They must actually affirmatively 

choose to register to vote at the motor vehicles office. It is not an 

automatic registration. They are prohibited from filling out the 

voter registration form unless they are citizens and eligible to vote 

in the State. 

Senator SMITH. They have to produce the documents you say that 

they can’t produce to get to register. 

Ms. WEISER. To register to vote there is no documentation requirement, except in one State, in Arizona, which has recently required proof of citizenship in order to register to vote. This has 

been causing huge problems in Arizona and is currently in the 

courts. But everywhere else, you are supposed to swear to your eligibility before an election official or on your registration form. 

Senator SMITH. But swearing and proving may be two different 

things. I mean, it is a crime to swear to a falsehood. I acknowledge 

that. It is a serious Federal offense. But it doesn’t mean they are 

proving they are constitutionally lawfully voting then. 

Ms. WEISER. It is true that there is no proof of citizenship required in order to register to vote across the country. Photo ID requirements that are being put in place across the country also don’t 

require proof of citizenship, and so they don’t do anything to prevent this problem that you are suggesting people are afraid of, of 

noncitizens voting. 

Senator SMITH. Do you have a suggestion for how we strike this 

balance? Because I don’t know that we will ever get it perfect, but 

we need to get it nearly perfect for the sake of the integrity of our 

democracy. 

Ms. WEISER. Well, right now there has been a pretty good balance struck by Congress and across the country and we can see the 

results. We actually don’t have any proven cases, or almost any 

proven cases of in-person voter fraud, the kinds of fraud targeted 

by these ID laws. 

Of the about 250 allegations of voter fraud that were submitted 

before the Supreme Court—we investigated all of them—most of 

them were either debunked or otherwise were unsubstantiated. I 

78 

think there were only nine unsubstantiated allegations and all the 

other allegations were not reflective of in-person voter fraud. 

So whatever problems you are seeking to address do not get addressed by these kinds of ID bills. 

Senator SMITH. That is very helpful. Thank you. 

Another legal question I would like to ask, I think to you, Michael. You talk about mental incapacity. If someone cannot express 

their volition, is there a legal point at which they don’t vote? They 

don’t get to vote or someone doesn’t get to vote for them? 

Mr. WATERSTONE. Practically or legally? 

Senator SMITH. Legally. 

Mr. WATERSTONE. Actually, Secretary Markowitz and Dr. 

Karlawish, I think have actually done more work in this area than 

I have—— 

Senator SMITH. Any of you. I am just really curious because this 

would be a rare instance. But I mean, if somebody has mental incapacity—— 

Mr. WATERSTONE. Yes. 

Senator SMITH [continuing.] They cannot manifest their volition, 

their choice, what do you do? 

Mr. WATERSTONE. There are—— 

Senator SMITH.Do they not vote? 

Mr. WATERSTONE. There are a number of States that expressly 

disenfranchise certain categories of people with mental disabilities. 

Some States provide that people that under guardianship are automatically disenfranchised. 

Actually, in one case a federal district court in Maine held that 

this violated both the Equal Protection clause and the Americans 

with Disabilities Act. There was recently a case in the Eighth Circuit that came out the other way on that. 

So that is the legal frontier at which that occurs, States that attempt to disenfranchise certain categories of people. In terms of 

how that capacity assessment can and should be done correctly and 

what questions should be asked, that is really an area that Dr. 

Karlawish has researched. 

Dr. KARLAWISH. Yes. I think the issue of the capacity to vote is 

one that its assessment resides, and should reside if a State wants 

to deal with that issue, in the courts in the context of, say, guardianship hearings and here is why. 

Canada, the entire country, has no provision for what it means 

to be competent to vote. The State of Illinois as well has no provision for what it means to be competent to vote. You think, well, 

what is going on here, you know, in Canada. 

Well, the answer is is that voting capacity actually is ultimately 

a performative capacity. What I mean by performative capacity— 

it is a weird statement—is it is something that someone ultimately 

has to do. 

So someone says, you know, ‘‘I want to vote’’ and then proceeds 

to pick. If somebody needs to assist them picking, they read the 

ballot to them and they say, ‘‘Which is your choice?’’ If they can’t 

perform that act and make a choice they can’t vote. So it works 

itself out functionally. 

79 

As for the issue of deeming someone not competent to vote, that 

is I think a separate matter for the courts if the courts in a State 

choose to want to do that. In this country it is State by State. 

But I want to again remind. Illinois has no provision for that. 

Canada dropped it in the 1980’s. 

Senator SMITH. They have had problems in Chicago with that 

very issue, I think. Just kidding. 

I appreciate that and your answers have been great. I think you 

all very much for your being here. 

I ask these questions in part because these are—as many of you 

have noted, this is an issue that is going to grow as our society 

ages. The more of the blanks we can fill in and get it right, the 

more valid will be election results in terms of a day of decision and 

a moving forward in another chapter in our democracy. 

But if our elections are filled with loopholes and allegations of 

fraud, which I suppose will always happen in some place, some corner of the country, it does get in the way of we the people manifesting our will. 

I just thank you all for your service in this area and for your contribution today. 

The CHAIRMAN. Thank you very much. 

Senator McCaskill. 

Senator MCCASKILL. Thank you, Mr. Chairman. 

I want to tell the secretary of state that my son goes to college 

in Vermont, but he did go with me and vote absentee for next 

Tuesday before he came back to college. So if he shows up when 

you all have your primaries—— 

Ms. MARKOWITZ. We will watch for him. 

Senator MCCASKILL [continuing.] Put him in jail. 

I am—it was interesting to hear from you, Ms. Weiser, that what 

you said in response to a question was essentially what I have 

found. That is that this myth, this mythical problem that is out 

there about in-person voter ID just simply isn’t happening, that 

someone is fraudulently using an ID or trying to be someone they 

are not. 

Does anyone on the panel—do they know of any example that 

has occurred in this country, where someone has showed up without a picture ID and tried to pretend they are someone else and 

tried to vote? 

Ms. MARKOWITZ. Well, in Vermont we had one instant. 

Senator MCCASKILL. One. I found one. 

Ms. MARKOWITZ. It was—and actually, when you hear it you will 

chuckle because it wasn’t nefarious. It was a fellow who came and 

voted in the morning and then he went home. 

It turns out his dad wasn’t feeling so well so he went out to do 

some chores for his father. He was going to pick up his prescriptions and, you know, some groceries and then stop to vote for him 

and—because he wasn’t going to be able to make it down. 

A fellow came in to check in and he said, ‘‘Well, I am just going 

to vote the way my father told me to for him.’’ He just didn’t get 

it, that you can’t vote for somebody else. It is true, that is not, you 

know, logical to everybody. 

The Attorney General’s office did not prosecute in that case. He 

didn’t actually cast the ballot. He was recognized after he had gone 

80 

into the ballot box, though, and so the ballot he had taken was 

spoiled. 

Senator MCCASKILL. I want to ask if any of you are aware of 

cases like this. I do think that when someone comes into a nursing 

home and tries to prey on the members and cast their ballots, there 

are mechanisms within the system that catches that. 

I happen to have lived a real life. When I was a very young assistant prosecutor in Kansas City back in the late 1970’s there was 

an owner of a very large senior center nursing home that came to 

the prosecutor’s office and said I want you all to prosecute this 

man. He comes around every election and goes up and down the 

hall and votes everyone and the nursing staff and everyone realizes 

he is doing them. 

He is in fact marking the ballot or telling them who to vote for. 

He is preying on these elderly people. Most of them don’t know 

what is happening. He is, you know, he was doing it in a massive 

way. I mean, he was not just going to one or two people. He was 

trying to get at least 20 or 30 votes out of every nursing home. 

So the owner of the nursing home came to the prosecutor’s office 

and guess who got the file? I actually did a jury trial in the courtroom of voter—absentee voter fraud against this man who had 

made a career out of delivering so many votes for his party every 

election in nursing homes. 

It was an interesting case. It was a jury trial. He pled not guilty. 

In fact there were two of them, he and his partner, who was a 

woman who did this. Unfortunately, half of our witnesses died before we could get the case to trial. But they were convicted and 

they were disenfranchised. These were big activists in the party of 

their choice. 

So I have seen first hand that if there is abuse there are mechanisms out there in the community that brings it to the attention 

of the authorities, particularly if it is being done in a methodical 

way. 

So I really believe that if—now, are there other instances that 

you all are aware of? Doctor, are you aware of instances like that 

where that is ongoing in some of these nursing homes and senior 

centers? 

Dr. KARLAWISH. Yes. I would say if you just type into LexusNexus long-term care/nursing home election election fraud, and 

make it a broad search of all newspapers, you will find a ream of 

local newspaper reports of just the kind of stuff you are talking 

about. 

If you go to our Web site, pennadc.org, and click on Facilitating 

Voting as People Age—we have a reference to several of those stories. 

Whether they are true or not is, I think, really not the issue. The 

issue is that the local nursing home becomes the lightening rod for 

accusations of fraud, usually by a disgruntled loser of a close local 

race. 

I cited that, for example, earlier in my testimony, just in Philadelphia a guy lost by 120 votes for a council race. He cites a bunch 

of absentee ballots where they all bear similar markings that look 

like one person filled them all out at a local long-term care facility. 

He cites fraud. He wants redress. He is angry. Whether he is right 

81 

or wrong isn’t the issue. The point is that nursing homes are this 

lightening rod for fraud. 

Personally and, well, conceptually, I don’t think that waiting for 

accusations of fraud and an investigation of it is the way to prevent 

that fraud. Because really, the ability to get to trial, such as you 

so skillfully did, is really tough to do. If that is the—. 

Senator MCCASKILL. No, I was just the low assistant on the 

totem pole. I got the file because I was not getting homicides and 

burglaries and robberies. 

Dr. KARLAWISH. Look where it got you. 

Senator MCCASKILL. Well—. 

Dr. KARLAWISH. You know, when I look at that—and I think 

though—and if you then look at that problem, the problem is that 

it is only one side of the problem. If that is your only focus it tends 

then to lead to ways that, ultimately I am afraid, could stigmatize 

and disenfranchise nursing home residents. Because the other side 

is the story of the people who wanted to vote who didn’t make it 

in time for registration—— 

Senator MCCASKILL. Right. 

Dr. KARLAWISH [continuing.] Never had the chance to get their 

absentee ballot ordered. When the ballot showed up they weren’t 

helped to fill it out. Or they weren’t registered for an absentee ballot, because most States are not like Oregon, and they couldn’t get 

to the polling site that is on the other side of town where their 

nursing home—you know, because they are in a nursing home that 

is on the other side of the city. 

So that is why I think a system that addresses both the fraud 

that you prosecuted successfully, as well as the people who went 

to vote. A third of the nursing homes in both the entire State of 

Virginia and the city of Philadelphia, one-third of the nursing 

homes reported that there were some residents who wanted to vote 

but could not vote because of these kind of mistakes and errors. 

I want a system that addresses both issues. That model is out 

there. It is done in Australia. It is done in Canada. There are setups in the State of Maryland. Sounds like Oregon may have something like that, although that is fairly recent because we didn’t capture that in our search of the laws that went back a few yeas ago 

done by Charlie Sabatino and colleagues at the American Bar Association. 

That system is a system of mobile polling, where we don’t rely 

on a well-meaning person who wants to come in and gather the 

votes, and potentially steal the votes, or an overworked busy social 

worker or activities director who has got a lot of other things on 

‘‘typically’’ her plate to deal with in addition to getting people registered and voted. Getting them to the polls if they happen to be 

registered at another part of town. 

I want a system where we come in, we get them registered, we 

help them cast their ballots, we bring those ballots back and we 

count them. That is the system we need in this country. 

Senator MCCASKILL. Well, that certainly makes sense. I think if 

we could do that, and especially as my generation ages and we 

have more and more and more and more and more and more people that are in these assisted living centers and long-term care facilities it is important. 

82 

By the way, we can find out where they all are because most of 

them are getting some kind of services—— 

Dr. KARLAWISH. Right. 

Senator MCCASKILL [continuing.] Through the government in one 

way or another. 

So I think the work that we are doing here is very important, 

Mr. Chairman, and I appreciate the hearing and I appreciate your 

opportunity to allow me to ask questions. 

Thank you very much all of you. 

Mr. WATERSTONE. Mr. Chairman, just one point—— 

The CHAIRMAN. Go ahead. 

Mr. WATERSTONE [continuing.] I want to make. I would hope that 

the efforts to develop mobile polling are not tied to efforts to have 

States adopt universal absentee balloting or postal voting. The reason simply is that universal postal voting, there is a whole other 

set of issues which I am not at all accomplished or skilled to talk 

about. 

But my understanding just as a citizen is that some people have 

strong views that they shouldn’t do it. People have to go to the polling place. I wouldn’t want to get this important issue lost in the 

other issue of is it good to have all postal voting or not. In other 

words sort of a baby-bathwater problem. 

The CHAIRMAN. The issues are separate. They are very separate, 

right. We shouldn’t confuse one with the other. 

Mr. WATERSTONE. Right. 

The CHAIRMAN. We talked this morning about the Oregon system 

now quite often. I think you, Ms. Markowitz, said you didn’t think 

your State was ready for it. I didn’t quite understand what you 

were saying. 

Ms. MARKOWITZ. In order for an all vote-by-mail system to 

work—the way it works in Oregon is everyone on the checklist gets 

a ballot. That means that your voter checklist has to be very accurate and up to date. 

Frankly, in Vermont we are still getting up to speed there. It is 

going to take some years of—the way that the Federal Motor-Voter 

law works is that when somebody moves, unless they have given 

you written permission or verbal permission to take their name off 

of your checklist, or unless you get a notification that they registered in a new location, they have to stay on your checklist until 

they have missed two general elections. OK? So that is a long time. 

But pretty soon we are going to be there. You know, we are going 

to be able to drop off these folks who we know have moved. So in 

some of our larger communities that have a lot of transient population, they might have, oh, 5,000 on the voter registration rolls 

that they know have lived somewhere else. 

Now, under our new Help America Vote Act statewide voter registration data base all new registrants aren’t going to have that 

problem. We have a system in place so that there is sort of an 

email notification within the State when somebody registers in a 

new place. There is a duplicate check capacity. But it is the backlog 

of old stuff that was imported into our fancy new system. 

So for the moment it is not practical. I don’t have a town clerk 

who will—because we run our elections by town—who would feel 

confident in sending out ballots on the existing checklist because 

83 

they all know that we haven’t yet cleaned up our rolls. We have 

got folks on the checklist who they knew moved, but who they are 

not under Federal law able to take off the checklist yet. 

The CHAIRMAN. So you are suggesting that while it may work in 

a State like Oregon with its particular geography and demographics, all across our country it would not be practical today. 

Ms. MARKOWITZ. Well, every State has its own unique history, 

practices, traditions and laws. So it is very successful in Oregon. 

I think we can all learn from that. There probably are places where 

it would work quite well, but not everywhere. 

The CHAIRMAN. Anybody disagree with that? 

Mr. WATERSTONE. If I could just add one point to that. When we 

are talking about absentee voting or mail-in voting, it is also important to remember that absentee balloting or ballots that people 

fill out at home are not inherently in and of themselves accessible. 

The ability to cast a secret and independent ballot, to the extent 

someone can and wants to, is a value that is protected in the polling place. If we are talking about voting in less traditional places, 

that is something we need to think about also, even in the absentee 

format. There is work being done on that, experimenting with 

HTML voting, internet voting. I know in Europe they have worked 

on text message voting. 

So as we are looking ahead in this and thinking about perhaps 

changing the traditional role of the polling place, I think we need 

to remember that secret and independent ballots are something 

that many people who vote absentee are able to do. We need to 

think about extending that value to the extent we can to all citizens. 

The CHAIRMAN. Anybody have any strong arguments with respect to Dr. Karlawish and what he talked about mobile voting. I 

think we all understand what it is and he went into it in some 

great detail. Is that the place we really want to get to? 

Ms. BOVBJERG. If I may just jump in on disability and voting 

more broadly. What we heard from advocates for disabled people 

was this sense that the American thing to do, the thing that the 

general population does, is what they want to be able to do, too. 

So in thinking about different ways of providing access, including 

alternative methods, it is just important to remember that if the 

general population is going to the polls, those polls are supposed 

to be accessible to all Americans, including people with some form 

of impairment. 

So if voting by mail is done—if the general population is voting 

by mail as in Oregon, that is a little different. But that is not necessarily what disability advocates would see as being full access. 

The CHAIRMAN. I see. 

Senator SMITH. If I may just add one thing, that I think from our 

work that we have done after the 2000 and 2004 elections, one of 

the issues that I haven’t heard discussed here is that voters themselves want alternatives. Older voters want alternatives. They 

don’t want to be able to vote only at the polls or only absentee. 

They want some alternatives. 

Early voting, for example, that goes on for 20 days or something, 

allows them to choose a day with good weather to go vote. Whereas 

they don’t have a choice on election day as to what the weather is 

84 

like. If it is icy and snowy they may not go. So that gives them options. 

So that they want the alternatives. They want the alternatives 

that exist for everybody else. But it is not—for example, we just 

finished some work on bilingual voting, particularly elderly Chinese voting. Voters in Boston and Los Angeles actually prefer to do 

absentee voting because it gives them more time to go over the ballot and they sometimes have translation issues. So they really 

don’t—I mean their preference is to get an absentee ballot, not to 

go to the polls and vote. 

So I think the issue here is the alternatives that are available 

and people have choices that they themselves can exercise. 

The CHAIRMAN. I have a bill—I would like your comment on it— 

that would establish weekend voting as preferable to voting on a 

Tuesday. You all are somewhat expert on elections, but interested 

in your opinion on that. 

Would we get a much higher participation in this country if we 

had weekend voting as opposed to voting on the first Tuesday in 

November? 

Ms. MARKOWITZ. You might have an easier time getting poll 

workers. 

The CHAIRMAN. Easier time what? 

Ms. MARKOWITZ. Getting poll workers. 

The CHAIRMAN. Yes. Poll workers. But—— 

Ms. MARKOWITZ. This is something that we have heard—— 

The CHAIRMAN [continuing.] In terms of the—— 

Ms. MARKOWITZ [continuing.] A lot about—— 

The CHAIRMAN [continuing.] In terms of our participation in this 

country and, you know, where we are and where we want to get 

to, without respect now to disabled or people in long-term care settings. 

If we had weekend voting, you know, the argument being the 

first Tuesday in November is no longer a time when everybody can 

get out to vote. They are all too busy, or so many people are too 

busy. Would weekend voting in your opinion significantly increase 

participation in this country? 

Ms. MARKOWITZ. I believe it has that potential. What is interesting in Vermont is we hold our local elections in March, the first 

Tuesday in March and—but the way we do it is in town meeting, 

where people come and they stay for most of the day and debate 

issues and vote on issues and on the local issues. 

Some years ago we permitted communities to move town meeting 

to Saturday or Sunday before that Tuesday. We did find an increase in some towns, but in some towns we saw no change at all. 

The difference though between our experience of town meeting 

and this proposal is the commitment of time. You know, when you 

come to town meeting you have to be prepared to stay 4 hours or 

more. When you go to vote you are going in and out. 

I think a weekend election would help with election administration. I think it is true it would make it easier to find volunteer poll 

workers. But there are a lot more people who aren’t working, and 

so it would make it more convenient. 

It might spread the work out. You know, the other challenge, you 

know, when you see the lines at the end of the day because everyVerDate Aug 31 2005 10:30 Sep 10, 2008 Jkt 000000 PO 00000 Frm 00088 Fmt 6633 Sfmt 6633 H:\DOCS\44092.TXT SAG PsN: JOYCE
85 

body is clustering to come to vote when they are done with work. 

There are slower times, you know, 10 in the morning, 2 in the 

afternoon. Weekend voting might help smooth out some of those 

issues as well. So I think it is a fine idea. 

The CHAIRMAN. Ms. Weiser. 

Ms. WEISER. If I may just add one more item on the table. We 

have talked about a range of barriers to older Americans and 

Americans with disabilities. One that isn’t on the table is voter registration and the voter registration system. 

I did want to flag that the Motor-Voter law was intended also to 

make it easier for the many Americans who use disability agencies 

and other social service agencies, to register to vote. That has not 

been implemented very well across the country. There are really a 

range of other steps that can be taken to make registration more 

accessible for many older Americans, too. 

The CHAIRMAN. Any other comments from the panel? Or anything at all with respect to our discussion this morning? 

You have been very, very helpful. It has been a very informative 

panel and we thank you so much for coming. 

Mr. WATERSTONE. Thank you. 

Ms. BOVBJERG. Thank you. 

With that, the Committee is adjourned. 

[Whereupon, at 12:16 p.m., the Committee was adjourned.] 

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