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48–220 PDF 2009

S. HRG. 110–787 

PROTECTING THE RIGHT TO VOTE: OVERSIGHT 

OF THE DEPARTMENT OF JUSTICE’S PREPARATIONS FOR THE 2008 GENERAL ELECTION 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

SEPTEMBER 9, 2008 

Serial No. J–110–117 

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 

Cardin, Hon. Benjamin L., a U.S. Senator from the State of Maryland ............. 1 

prepared statement .......................................................................................... 91 

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

statement .............................................................................................................. 144 

WITNESSES 

Anderson, Keshia, Chesterfield, Virginia .............................................................. 20 

Becker, Grace Chung, Acting Assistant Attorney General, Civil Rights Division, U.S. Department of Justice, Washington, D.C. ........................................ 3 

Daniels, Gilda R., Assistant Professor of Law, University of Baltimore School 

of Law, Baltimore, Maryland .............................................................................. 23 

O’Leary, Bryan P., Capitolink Director, Crowell & Moring LLP ......................... 22 

Sabin, Barry, Deputy Assistant Attorney General, Criminal Division, U.S. 

Department of Justice, Washington, D.C. .......................................................... 5 

QUESTIONS AND ANSWERS 

Responses of Grace Chung Becker and Keshia Anderson to questions submitted by Senators Leahy, Feinstein, Cardin, Biden and Kennedy ................ 30 

SUBMISSIONS FOR THE RECORD 

American Civil Liberties Union, Caroling Fredrickson, Director and Deborah 

J. Vagins, Legislative Counsel, Washington, D.C., letter ................................. 67 

Anderson, Keshia, Chesterfield, Virginia, statement ........................................... 72 

Appel, Chris, Student Association for Voter Empowerment, statement ............. 75 

Asian American American Justice (‘‘AAJC’’), Vincent A. Eng, Acting Exective 

Director Deputy Director, Washington, D.C., prepared statement .................. 79 

Becker, Grace Chung, Acting Assistant Attorney General, Civil Rights Division, U.S. Department of Justice, Washington, D.C., statement ..................... 81 

Clarke, Kristen, Co-Director, Political Participation Group, NAACP Legal Defense and Educational Fund, Inc., Washington, D.C., statement .................... 94 

Coleman, William T., Jr., Senior Partner and The Senior Counselor, 

O’Melveny & Myers LLP, Washington, D.C., letter .......................................... 103 

Daniels, Gilda R., Assistant Professor of Law, University of Baltimore School 

of Law, Baltimore, Maryland, statement ........................................................... 106 

Herbert, J. Gerald, Executive Director & Director of Litigation, the Campaign 

Legal Center, Washington, D.C., statement ...................................................... 117 

O’Leary, Bryan P., Capitolink Director, Crowell & Moring LLP, Washington, 

D.C., statement .................................................................................................... 146 

National Asian Pacific American Bar Association, Les Jin, Executive Director 

and Helen B. Kim, President, Washington, D.C., letter ................................... 155 

Sabin, Barry, Deputy Assistant Attorney General, Criminal Division, U.S. 

Department of Justice, Washington, D.C., statement ....................................... 157 

Smith, Hon. Lamar, and Hon. Daniel Lugren, U.S. House of Representative, 

Washington, D.C., letter ...................................................................................... 164 

(1) 

PROTECTING THE RIGHT TO VOTE: OVERSIGHT OF THE DEPARTMENT OF JUSTICE’S 

PREPARATIONS FOR THE 2008 GENERAL 

ELECTION 

TUESDAY, SEPTEMBER 9, 2008 

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

The Committee met, pursuant to notice, at 2:21 p.m., in room 

SD–562, Dirksen Senate Office Building, Hon. Ben Cardin, presiding. 

Present: Senators Cardin, Whitehouse, Cornyn, and Coburn. 

OPENING STATEMENT OF HON. BEN CARDIN, A U.S. SENATOR 

FROM THE STATE OF MARYLAND 

Senator CARDIN. The Senate Judiciary Committee will come to 

order. First, let me thank Chairman Leahy for allowing me to 

chair’s today hearing. I also want to thank Senator Kennedy and 

Senator Kennedy’s staff for the work they did in helping us prepare 

for today’s hearing. We certainly wish him a speedy recovery and 

look forward to Senator Kennedy’s return shortly to the United 

States Senate. 

Today the Judiciary Committee will receive testimony on the 

subject of ‘‘Protecting the Right to Vote: Oversight of the Department of Justice’s Preparations for the 2008 General Election.’’ 

During the 2008 Presidential primary season, many States have 

witnessed record-breaking new voter registrations and voter turnout at the elections. I have particularly been encouraged to see so 

many young people becoming energized about the candidates in 

this election, which will help shape our Nation’s future for many 

years to come. 

That is going to present a challenge for our election system. We 

are going to have a lot of new first-time voters who are going to 

show up in November to vote. We are going to see record numbers, 

and if prior elections are any indication, we know that there are 

likely to be some problems as far as the voting equipment is concerned, the ballots, et cetera. And one of the questions for today’s 

hearing is whether the Department of Justice is prepared to help 

to make sure that every eligible voter who wants to vote has the 

opportunity to cast his or her ballot on November the 4th. 

Today’s hearing will focus on to what extent the Department of 

Justice is prepared, or unprepared, for the new challenges we exVerDate Nov 24 2008 12:56 Apr 07, 2009 Jkt 048220 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\48220.TXT SJUD1 PsN: CMORC
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pect to face in the 2008 elections. I must tell you that I am concerned as to how well prepared we are. 

Over the past 2 years, this Committee has undertaken extensive 

investigations into the inappropriate role that politics has played 

in the Department of Justice. When it comes to the Civil Rights Division specifically, I am gravely concerned that the Division has 

lost its way from its historical mission to protect the civil rights of 

all Americans, particularly the most vulnerable among us. 

The Civil Rights Division, in particular, has suffered terrible 

stains on its reputation under the Bush Administration, in particular during the tenure of former Attorney General Alberto 

Gonzales. It has had a very poor record of filing disparate impact 

cases and pattern and practice cases, and it has not made it a priority to file cases to protect African-Americans from discrimination. 

The Civil Rights Division failed to authorize a single case alleging 

discrimination in voting on behalf of African-American voters between 2001 and 2006. In particular, I have been concerned that the 

Justice Department has been reluctant to file Section 2 Voting 

Rights Act cases alleging minority vote dilution. 

I am disturbed that the Civil Rights Division has also let partisan politics influence its personnel and litigation decisions, including the preclearance of Georgia’s restrictive voter identification 

law in 2005—which overruled and was contrary to the recommendations of career staff. 

I look forward to hearing from today’s witnesses from the Department of Justice as to what steps they are going to take before 

the elections to ensure that all eligible votes are counted and that 

voters are not disenfranchised. 

I want to again ask the Justice Department if they have the tools 

necessary to combat deceptive practices in the upcoming election. 

One of the concerns is that we have laws on the books, we have 

tools available. Are they adequate? We have seen practices in the 

2004 and 2006 elections in which misleading information was distributed. We have seen flyers that tell people that if they have outstanding parking tickets, they are in jeopardy of being arrested. We 

have seen the wrong election date handed out. We have seen information that has been deceptive as to endorsements, and they have 

been handed out in minority communities in an effort to try to diminish the importance of minority voters in a given election. That 

goes well beyond what is acceptable in American politics, and I 

know the elections are difficult circumstances, and we have got to 

be prepared to defend our records. But there are steps that you 

cannot go beyond, and I think in American politics we have seen 

in the last couple of election cycles that that has happened. 

My question for the Department of Justice: Are they prepared to 

make sure that efforts to diminish minority voters in the 2008 election will not be tolerated? And do they have enough tools to deal 

with it? We have legislation that has been approved by this Committee, that has been approved by the House of Representatives, 

and I am disappointed that we have not been able to get that legislation enacted. I think the Department of Justice could help us a 

great deal by working out the last remaining details. If those tools 

are needed, let us get it done. Let us work together to give you all 

the tools you need so there is a clear message to the American pubVerDate Nov 24 2008 12:56 Apr 07, 2009 Jkt 048220 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\48220.TXT SJUD1 PsN: CMORC
3 

lic that in 2008 we are going to do everything in our power to make 

sure that the intent of the Civil Rights Acts, that the intent of the 

action taken over the last hundred-and-some years to protect all 

voters in this country will be aggressively pursued by the Department of Justice. 

I look forward to hearing from all the witnesses, including our 

second panel of witnesses, who I think will give us some additional 

information to make sure that we are properly prepared for the November elections. 

And, with that, I would recognize my colleague, Senator Coburn. 

Senator COBURN. I will defer an opening statement. 

Senator CARDIN. With that, we will go immediately to our panel 

of witnesses. May I ask our first panel if they would please stand 

first to be sworn. 

Do you affirm that the testimony you are about to give before the 

Committee will be the truth, the whole truth, and nothing but the 

truth, so help you God? 

Ms. BECKER. I do. 

Ms. SABIN. I do. 

Senator CARDIN. Our first panel consists of Grace Chung Becker, 

who currently serves as the Acting Assistant Attorney General in 

the Civil Rights Division in the Department of Justice. She supervises approximately 650 to 700 employees and ten litigating sections. Ms. Becker previously served as the Deputy Assistant Attorney General in the Division from March 2006 through December 

2007. She has also worked as counsel to the Senate Judiciary Committee for Senator Hatch. 

Barry Sabin presently serves as the Deputy Assistant Attorney 

General in the Criminal Division of the Justice Department. Mr. 

Sabin started in that position in January of 2006 and is responsible 

for overseeing the Fraud Section, Criminal Appellate Section, Gang 

Squad, and Capital Case Unit. A Federal prosecutor since 1990, 

Mr. Sabin served as chief of the Criminal Division’s Counter terrorism Section from 2002 until 2006. 

We will be glad to hear from you. Your entire statements will be 

made part of our record, without objection. 

STATEMENT OF GRACE CHUNG BECKER, ACTING ASSISTANT 

ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Ms. BECKER. Good afternoon, Chairman Cardin, Senator Coburn, 

members of the Judiciary Committee. It is an honor to appear 

today to talk to you about what the Civil Rights Division is doing 

to prepare for the 2008 election. 

As Senator Cardin noted, this is an unprecedented election year. 

We know that record numbers of voters are registering across the 

Nation and record numbers are expected on November 4th. 

These exciting developments present challenges to States—which 

have primary responsibility for administering elections—and the 

Justice Department is doing its part in actively training Federal 

personnel, reaching out to State and local governments and dozens 

of civil rights organizations and continuing its enforcement of Federal voting laws in this election season. 

4 

I am fortunate to have a tremendously talented and hard-working team of approximately 80 attorneys and non-attorneys in the 

Voting Section, and I am proud of their accomplishments. 

Since 2006, we have filed seven cases under Section 2 of the Voting Rights Act involving vote dilution and voting discrimination. In 

addition, I have an approved an eighth case under Section 2 on behalf of African-American voters that has not yet been filed. 

Our lawsuits have made a difference. In Euclid, Ohio, the first 

African-American was elected to the city council in March. In Osceola, Florida, the first Latino was elected to the school board just 

a couple of weeks ago. And in November, voters in Georgetown 

County, South Carolina, will have the opportunity to elect school 

board members based upon relief we obtained in creating three majority African-American districts. In addition, we continue our 

record-high number of lawsuits under the language minority provisions and voter assistance provisions of the Voting Rights Act and 

the Help America Vote Act. 

The Division has also worked to ensure that States meet their 

obligations to provide voter registration opportunities at public assistance agencies, as required by Section 7 of the National Voter 

Registration Act. We filed lawsuits in Tennessee and New York, 

settled a case in Arizona; and based upon our investigations in Nebraska and Iowa, we were able to obtain voluntary compliance in 

the form of new State legislation. 

The NVRA also ensures that new voters can vote on election day 

when an applicant submits a valid voter registration application 

that is received or postmarked by 30 days before a Federal election 

or by the State law deadline, whichever is less. It also prohibits 

States from removing ineligible voters from the voter list within 90 

days of a Federal election. Five of the eight cases that we have 

filed under Section 8 include allegations that defendants either 

failed to add properly registered voters or improperly removed eligible voters. 

As you know, the Supreme Court held that Indiana’s voter identification law is constitutional on its face. It is important to emphasize that the Court also held that individuals are allowed to file 

suit if a voter ID law is applied to them in an unconstitutional 

manner. 

In addition, the Civil Rights Division can take action if an ID law 

or any voting law is enforced in a discriminatory manner. For example, this summer, we filed and favorably resolved a Section 2 

case in Penns Grove, New Jersey. The lawsuit included allegations 

that Hispanic voters were being required to show more identification than white voters, and this is in a State that does not have 

a voter ID law. 

I emphasized these points during my recent discussion with 

State and local officials. And with so many of our men and women 

in uniform now overseas, the Voting Section is also working hard 

to protect the franchise for service members and their families. 

Last month, I joined the Department of Defense in sending letters 

to all 50 States emphasizing the need to provide at least 45 days 

for absentee ballots to be mailed and returned. We will continue to 

work with the States and, if necessary, file lawsuits to ensure that 

5 

soldiers, sailors, airmen, marines, and other overseas citizens are 

afforded a full opportunity to participate in Federal elections. 

And, lastly, the Division’s election monitoring program is among 

the most effective means of ensuring that Federal voting rights are 

respected on election day. So far during calendar year 2008 we 

have sent 364 Federal observers and 148 Department personnel to 

monitor 47 elections in 43 jurisdictions in 17 States. 

On November 4th, we will coordinate the deployment of hundreds of Federal Government employees in counties, cities, and 

towns across this country. The Department will have a toll-free 

hotline with interpretations services, fax number, and Internetbased mechanisms for reporting problems. 

Thank you very much, and I will turn it over to Mr. Barry Sabin. 

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

for the record.] 

Senator CARDIN. Mr. Sabin. 

STATEMENT OF BARRY SABIN, DEPUTY ASSISTANT ATTORNEY 

GENERAL, CRIMINAL DIVISION, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Ms. SABIN. Good afternoon, Chairman Cardin, members of the 

Judiciary Committee. I appreciate the opportunity to appear before 

you today to discuss the Criminal Division’s efforts to enforce Federal laws relating to the corruption of the franchise and attendant 

criminal violations. 

As you are aware, the Justice Department has met on a number 

of occasions this year with members of this Committee’s staff to 

discuss the Department’s established policies regarding pre-election 

criminal investigative activities and other issues of interest to the 

Committee. Additionally, on June 6th of 2008, Criminal Division 

and Civil Rights Division representatives provided a briefing to the 

United States Commission on Civil Rights. In these forums, the 

Justice Department outlined the roles of the respective Divisions in 

the enforcement of Federal laws that are designed to make voting 

accessible and cheating more difficult. The Department remains 

committed, in both words and action, to ensuring that we effectively implement these responsibilities not only during this election 

year but for future elections as well. 

Dating back to the creation of the Public Integrity Section in 

1976, the Criminal Division has been responsible for supervising 

election crime investigations and prosecutions initiated in United 

States Attorneys’ Offices throughout the country. In 1980, an Election Crimes Branch was created within the Public Integrity Section 

to oversee the handling of these cases. 

While Public Integrity attorneys on occasion prosecute election 

crime cases, most of these cases are prosecuted by Assistant United 

States Attorneys in U.S. Attorneys’ Offices across the Nation. 

From an operational perspective, the Criminal Division’s oversight of election crime matters is designed to ensure that the Department’s nationwide effort to combat election fraud and campaign financing crimes is consistent, impartial, and effective. Although the Public Integrity Section does not have formal veto authority over the investigation and prosecution of Federal election 

crimes, U.S. Attorneys’ Offices are required to consult with the 

6 

Public Integrity Section before taking certain actions. With respect 

to election fraud matters, such as vote buying and ballot box stuffing, a U.S. Attorney’s Office must consult with the section before 

commencing a grand jury investigation, requesting that the FBI 

conduct a full-field FBI investigation, or bringing criminal charges. 

Such consultation is also required before subpoenaing election materials in the possession of State and local election officials and 

other actions prior to an election. Additionally, the Criminal Division has provided written guidance to U.S. Attorney’s Offices on 

the applicable laws and investigative strategies governing this sort 

of crime. 

On a frequent basis, these Criminal Division attorneys closely coordinate with their counterparts in the Civil Rights Division, particularly that Division’s Voting and Criminal Sections. This interDivision consultation assists in the effective enforcement of both 

election crime and voting rights matters. 

In October of 2002, the Attorney General announced the establishment of a Department-wide Ballot Access and Voting Integrity 

Initiative to spearhead the Department’s increased efforts to protect voting rights and to combat election fraud. The initiative expands on the Department’s longstanding District Election Officer 

Program, which requires each United States Attorney’s Office to 

designate at least one Assistant United States Attorney to handle 

the investigation and prosecution of election crimes and to serve as 

a liaison with the Civil Rights Division on ballot access issues within its District. In 2006, the FBI established a similar program, 

which requires that each of its 56 Field Divisions designate a special agent to serve as Election Crime Coordinator. 

Another critical feature of this initiative requires that the Criminal Division, jointly with the Civil Rights Division, organize and 

present annually a Ballot Access and Voting Integrity Symposium, 

which is an intensive annual training event. 

Since the initiative was announced, a total of seven such national 

training events have been held, the most recent of which took place 

on July 1st and 2nd of this year. The Attorney General personally 

addressed the prosecutors and agents and discussed the importance 

of both protecting the voting rights of all Americans and safeguarding the electoral process. In a March 5, 2008, memorandum 

to all Department employees, the Attorney General had emphasized that politics should play no role in the in the investigation 

or prosecution of election crimes. 

A final critical feature of the initiative requires each United 

States Attorney’s Office and each FBI Field Division to establish 

and maintain a close liaison with State law enforcement and election administrators concerning ballot access and election integrity 

complaints. 

The Criminal Division and the Justice Department’s criminal 

prosecutors in the United States Attorney’s Offices complement the 

work of the Civil Rights Division in election matters. The Civil 

Rights Division is responsible for protecting the right to vote, while 

the Criminal Division’s Public Integrity Section and other Department prosecutors throughout the country seek to protect the value 

of each person’s vote by criminally prosecuting those who corrupt 

the elections. 

7 

I thank you for the opportunity to provide the Committee with 

information about the Criminal Division’s role in combating election fraud. I welcome your questions. 

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

for the record.] 

Senator CARDIN. First, let me thank you both for your appearance and your testimony. It was certainly very strong testimony 

about the integrity of the election system and actions you plan to 

take, including criminal actions, and the steps you have taken before the elections to make clear your ability to help. 

I want to talk specifically about some activities that took place 

in the last two election cycles which have been documented and 

then ask you questions as to whether you believe you have adequate laws to take action against those types of activities, what 

steps you have taken to preempt those activities in this election 

cycle, and whether you are prepared to take investigative actions 

if it occurs in 2008. 

The type of activities I am referring to, is misleading and fraudulent information that was given out in an effort to diminish minority participation or voting in the 2004 and 2006 election cycles. 

There was literature that was targeted to minority communities 

that gave the wrong date of election. There was information distributed in both Pennsylvania and Ohio that said, because of large 

turnout, Republicans should vote on Tuesday and Democrats 

should vote on Wednesday. 

There was information handed out in California to immigrant 

communities warning them—these are newly registered voters, targeted to the Latino population—warning them that voting in the 

Federal election is a crime that can result in incarceration and possible deportation for voting without the right to do so. 

There was information handed out giving the wrong voter date 

in my own State of Maryland. 

In Wisconsin, there was information targeted that states that 

you can only vote once a year. If you have been found guilty of anything, even a traffic ticket, you cannot vote in a Presidential election; if you do, violating these laws, you can get 10 years in prison 

and your children will be taken away from you—again, targeted to 

minority communities. 

My question to you: Do you have adequate tools to combat that 

type of action aimed at diminishing the minority vote in our country? Do you believe that you have adequate tools? And have you 

taken steps to make it clear that such activity will be pursued to 

try to discourage candidates from using those types of tactics? And 

are you prepared to initiate investigations if, in fact, you see that 

type of activity in the 2008 elections? 

Mr. SABIN. With respect to the criminal enforcement of the laws, 

the Department has provided a views letter on the Deceptive Practices Act, some of which you referred to in your question, specifically back in October of 2007. I believe we share common ground 

with the premise of your question with respect to the goal of the 

bill and the goal of those kinds of activities, that we would seek 

to address certain election-related deceptive conduct; and where 

Federal statutes do not presently exist, to address that, seek to 

8 

specifically support additional legislation in order to bridge any 

gaps. 

Specifically, under the voter suppression types of activities, the 

Department of Justice has clearly articulated in the seventh edition 

of the guidance that has been provided to prosecutors throughout 

the country that it is a Department of Justice priority that we will 

aggressively prosecute these types of matters and that, where appropriate, cases will be brought. In terms of voter suppression, we 

have used Title 18, United States Code Section 241, to pursue that 

kind of activity, although in terms of the voter suppression and deceptive conduct, that is arguably not within the parameters—or at 

least critics have argued that, and therefore, the additional legislation as proposed and referenced in your question would seek to 

make that explicit by Congress rather than the Department’s position and as articulated in our views letter. 

Hopefully that is responsive to your question. 

Senator CARDIN. I think I can interpret it. But September is 

going to be a long month around here. We could get a lot of work 

done if we could really get your help on this legislation. We are 

prepared to make reasonable compromises if you need strong laws. 

We think it is covered under existing laws, but as you know, Senator Obama has introduced a bill to strengthen that, and it passed 

our Committee. It has not been taken up on the floor yet. If there 

are changes that you need, let us sit down and talk about it. But 

what we are trying to do—and I am not trying to make this partisan in the least, because it could well be we are dealing with minority voters in Alaska where they tell the Democrats to vote on 

Tuesday and Republicans to vote on Wednesday. I think it is already illegal. If it is not illegal, let us make it illegal and let us 

make sure that you will investigate and prosecute any efforts to do 

that. 

Mr. SABIN. To be clear, we share that common ground in terms 

of working together to address what needs to be addressed so that 

Congress provides the Justice Department with the ability to enforce violations of Federal criminal law. 

Obviously, when you pursue matters that relate to campaign 

rhetoric and other kinds of campaign tactics, that goes into First 

Amendment territory. 

Senator CARDIN. We are in agreement on that. 

Mr. SABIN. Your point—and I think the Justice Department 

shares that view—is that we could work together to address whatever specifics need to be addressed. 

Senator CARDIN. I think the examples I gave are all examples 

that are not protected under the First Amendment when you give 

the wrong date of election targeted to minority communities or try 

to intimidate people with telling them they do not have the right 

to vote when they do. 

Let me cover one other circumstance, and that is, we have seen 

in States where in minority communities there has been an inadequate amount of ballots available, inadequately trained judges, 

which caused much longer lines in minority communities than in 

other voting places in the same State. 

Do you need additional tools in order to deal with this? What can 

be done at the national level to make sure that all of our voters 

9 

have the ability, equal ability, to cast a ballot? I could show you 

that in minority communities in my own State in the last election, 

they had to wait three, four, five times as long to vote, and there 

was no reason for it other than they did not have the voting machines or ballots available, and it seemed to be only in the minority 

communities. 

Ms. BECKER. Senator, that is a very important issue. That is obviously something that we are concerned about in the Civil Rights 

Division as well. I know that there is a witness on the second panel 

that will be describing one of these examples here for you today, 

and I want you to know that we share your concern, that we have 

an open investigation. And right now we are not seeking any additional tools. We believe we can take appropriate law enforcement 

action where necessary to combat this type of behavior. But I do 

very much appreciate that offer and reserve the opportunity to 

maybe take you up on it in the future, if necessary. 

Senator CARDIN. Thank you. 

Senator Cornyn. 

Senator CORNYN. Thank you very much, Mr. Chairman. I would 

be glad to defer to Dr. Coburn, who actually was here before I was, 

so please go ahead. 

Senator COBURN. No. Go ahead. 

Senator CORNYN. Well, rather than get in a stand-off about who 

is going to go first, I will go ahead and go first. 

Senator COBURN. Oklahomans usually defer to Texans—except 

on the football field. 

Senator CORNYN. On behalf of Senator Specter, I would like to 

ask for unanimous consent to make a part of the record a number 

of letters in support of Grace Chung Becker for head of the Civil 

Rights Division. 

Senator CARDIN. Without objection, they will be made part of the 

record. 

Senator CORNYN. Thank you very much. 

Mr. Chairman, I appreciate your convening this hearing today 

and Senator Leahy for scheduling it because we all recognize that 

the right to vote is one of our most cherished civil rights. That 

right to vote, like all rights, is safeguarded by our men and women 

in uniform, and I was glad to hear Ms. Becker allude to efforts they 

are making in that area, which I want to talk about a little bit 

more. But, obviously, far too often these very same men and 

women who wear the uniform of the United States of America and 

who are fighting and sacrificing in some cases everything to protect 

our civil rights are themselves unable to exercise their right to 

vote. Because they do much to protect our rights, I think that justice demands that we do everything in our power to protect theirs. 

Through legislation such as the Uniformed and Overseas Citizens Absentee Voting Act and the Help America Vote Act, Congress 

has attempted to establish a framework through which the Department of Defense and the Department of Justice can safeguard the 

voting rights of our men and women in uniform. But let me be 

clear about this. That framework has failed. It is broken and it 

does not work. 

Specifically, the Department of Defense has failed to adequately 

educate enlisted men and women about how to vote, and it has 

10 

failed to take adequate steps to ensure, when enlisted men and 

women do vote, that their votes are actually counted. The Department of Defense has a legal duty to educate and assist our service 

members in voting, and the evidence shows that the Department 

of Defense has failed in that duty. 

The Department of Defense’s current system of relying on voting 

assistance officers to educate enlisted men and women about how 

to vote has failed as well. The Department of Defense Inspector 

General report, 2006 Evaluation of the Federal Voting Assistance 

Program in the DOD, noted that only 59 percent of surveyed military service members knew where to obtain voting information on 

base, and only 40 percent had received voting information or assistance by a voting assistance officer. 

DOD regulations require DOD voting assistance officers to handdeliver Federal postcard applications to all eligible military service 

members by January 15 each year. But the IG report indicates that 

only 33 percent of service members are familiar—are even familiar 

much less having been handed the card—with the Federal postcard 

application. According to the United States Election Assistance 

Commission, only 16.5 percent-–16.5 percent—of 6 million eligible 

military and overseas voters requested an absentee ballot for the 

November 2006 election. Of the overseas troops who did ask for 

mail-in ballots, only 47.6 percent, less than half, had their completed ballot actually arrive at their local election office, and many 

of those arrived after the statutory deadline because of delays in 

transmission, resulting in them being rejected and, thus, not being 

counted at all. 

I believe that in 2006 only 5.5 percent of the eligible military and 

civilian voters overseas had their vote count—5.5 percent. I hope 

the panel would agree with me that that is an outrage that cries 

out for a remedy, and I hope you will help us work to remedy that 

abominable statistic. 

I have introduced a bill called the Military Voting Protection Act 

to expedite delivery and electronically track service members’ ballots. This would improve the infrastructure for protecting our 

troops’ right to vote. The legislative framework is only as effective, 

as you know, as the executive branch’s will to enforce it. 

That is why last month I sent a letter to the Attorney General, 

co-signed by 12 of my Senate colleagues and 22 of my House colleagues, requesting that the Department of Justice investigate 

whether the DOD’s Voting Assistance Program was fulfilling its 

legal responsibilities to protect service members’ right to vote or 

whether service members deployed around the world were being effectively disenfranchised. 

I consider this to be a very important civil rights issue, and I am 

glad to have the acting head of the Division, Ms. Becker, here testifying today. And I am also looking forward to hearing the testimony on the second panel of Bryan O’Leary, a former voting assistance officer in the United States Marine Corps and hearing about 

his firsthand experiences with how the law is actually being implemented—or how it is not being implemented, apparently, to me. 

I hope that today’s hearing will demonstrate the need and certainly the universal conviction on the part of all Members of Congress to see that the laws it passes are actually enforced by the exVerDate Nov 24 2008 12:56 Apr 07, 2009 Jkt 048220 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\48220.TXT SJUD1 PsN: CMORC
11 

ecutive branch and properly administered by the appropriate agencies. 

Mr. Chairman, I guess I have a minute and 24 seconds. Let me 

just ask Ms. Becker a question. 

Ms. Becker, is this something that alarms you as much as it does 

me, these statistics? 

Ms. BECKER. It does, Senator Cornyn. I share your concern as 

somebody who has worked at the Pentagon as a civilian for the 

United States Army in Manpower and Reserve Affairs and in the 

Department of Defense in the General Counsel’s Office. I have seen 

firsthand the sacrifices that men and women and their families 

make in order to serve their country, to preserve our rights here 

at home. And certainly if there is anything that we can do in the 

Civil Rights Division to vigorously enforce UOCAVA in order to 

preserve their voting rights while they are abroad, we certainly are 

committed to doing so, Senator. 

I did read the letter that you sent to the Attorney General, and 

I thought it raised some very, very important issues that are of 

concern to us. Many of the issues that you raise involving educating the military are assigned to the Department of Defense, as 

you know, for their—it is their responsibility. What we do in the 

Justice Department is to sue States to ensure they are giving adequate time to send absentee ballots and to have these absentee ballots returned. So that is the limited role that the Justice Department plays in this regard. 

Senator CORNYN. Let me ask you this, Ms. Becker. Are you saying that the Justice Department has no responsibility to see that 

an agency of the United States Government—the Department of 

Defense—has a program in place to make sure that ballots are actually returned on a timely basis so that the votes actually count? 

Is that part of the Department of Justice’s responsibility or not? 

Ms. BECKER. Well, we do not have the authority to investigate 

and sue the Department of Defense, as you may imagine. But what 

I did do—because I think this is a very important issue, Senator 

Cornyn—is that I referred it to the Department of Defense Inspector General’s Office, because I think this is an important issue that 

needs to be brought to their attention. They have looked at this 

issue in the past, as you have noted in your statement, and I think 

that the issues that you raise in your letter are things that are 

going to be of great interest to them. 

Senator CORNYN. Well, Ms. Becker, my time is about up, but let 

me just make clear my commitment, and I guarantee that Congress 

on a bipartisan basis will pursue this. So I do not want any pingpong played between the Department of Defense and the Department of Justice. And I also want to make sure that if you lack any 

authorities which Congress is able to confer upon you, that you tell 

us, and that you tell us what tools that the Department of Justice—who has the primary responsibility to make sure that civil 

rights laws are enforced—what you need in order to make sure 

that our service members’ votes count. Will you do that for me? 

Ms. BECKER. I will, and I appreciate that. Thank you very much, 

Senator. 

Senator CORNYN. Thank you. 

Senator CARDIN. Senator Whitehouse. 

12 

Senator WHITEHOUSE. Thank you, Mr. Chairman, and thank you 

for chairing this hearing. I know this is a subject that is near and 

dear to you after your experience in the last election, and I appreciate your constant attention to it during the time that we have 

served together. 

Mr. Sabin, we have endured a very unfortunate experience within the Department of Justice in the last several years. The two examples of many that stand out are the former United States Attorney David Iglesias, under intense political pressure to bring preelection voter fraud cases, took a look at those cases with the career folks in his office and the investigators that were assigned to 

it, and they decided those cases could not be made. And the response from the Department of Justice at the highest levels at that 

point was not to back this U.S. Attorney who had made that call 

but, rather, to yield to the political pressure and fire him. And he 

was, in fact, fired. 

Not too much after that, another fired United States Attorney 

was replaced by a gentleman named Bradley Schlozman, whose 

name you are probably familiar with, who undertook to bring preelection cases that his predecessor had found to be without merit 

in the days literally before an election. 

This is an area of law that for many years was guided by manuals that gave the guidelines for these prosecutions, and my colleague from California, Dianne Feinstein, has done wonderful work 

in comparing the 1995 manual, which was in operation, with the 

2000 manual that came out thereafter, and there were some very, 

very significant differences. And what it looks to an average person 

like me as is that the conduct of the Department at the time was 

in plain violation of its own manual, in addition to being wrong. 

When the conflict between the manual and the handling of those 

cases became apparent, to solve the problem they changed the 

manual. And the differences—do you want to hold them up?—are 

summarized in a variety of different ways. 

In the 1995 edition, it says, ‘‘The Justice Department must refrain from any conduct which has the possibility of affecting the 

election itself.’’ Obviously, Mr. Schlozman’s purpose was exactly to 

affect the election itself. That was changed in the 2007 edition to 

the milder ‘‘Overt criminal investigation measures should not ordinarily be taken in matters involving alleged fraud.’’ I do not think 

that really addresses the purpose at all. 

The second difference in the 1995 edition, it says, ‘‘Federal prosecutors and investigators should be extremely careful to not conduct overt investigations during the pre-election period or while the 

election is underway.’’ That provision was removed. 

Another provision said, ‘‘Most, if not all, investigation of an alleged election crime must await the end of the election to which the 

allegation relates.’’ Again, that provision was removed. 

′′It should also be kept in mind,’’ said another provision of the 

manual, ‘‘that any investigation undertaken during the final stages 

of a political contest may cause the investigation itself to become 

a campaign issue.’’ That was whittled down to ‘‘Starting a public 

criminal investigation before the election runs the risk of interjecting the investigation itself as an issue.’’ 

13 

And, finally, the position of the Justice Department had been 

that the Justice Department generally does not favor prosecution 

of isolated fraudulent voting transactions based in part on constitutional issues that arise when Federal jurisdiction is asserted.’’ 

That, too, was removed. 

Do you know if there is any effort to restore any of those provisions to the manual or will those removals hold? 

Mr. SABIN. I appreciate the question. Let me try and give you a 

candid answer with respect to the issues you raise. 

First, the Department of Justice and Attorney General Mukasey 

on March 5th of 2008 issued a memorandum setting forth clearly 

and unequivocally that politics must play no role in the decisions 

of Federal investigators or prosecutors regarding any investigation 

or criminal charges. The memo goes on to further discuss and set 

that context whereby we are sensitive to and mindful of the power 

of criminal prosecutions and the impact it has upon or could have 

on November’s elections. 

I am not going to comment upon the two specific U.S. Attorney 

examples that you referred to, but let me talk to you regarding the 

changes or the demonstrative aid that you have regarding the sixth 

edition and the seventh edition of the guidance that was prepared 

by the Public Integrity Section on behalf of the Criminal Division 

and distributed throughout the Justice Department. It was prepared by career prosecutors: the head of the Election Crimes 

Branch, a 38-year veteran as director of that component, and another prosecutor with over three decades of experience. It was not 

meant or intended in any way to have a political or partisan purpose with respect to those modifications. 

The Justice Department has articulated and responded to, as you 

referred to, Senator Feinstein’s concerns regarding the language in 

the sixth edition versus the seventh edition of that guidance. 

In a letter dated February 1st of this year, we walked through 

in exacting detail each of the concerns that are raised here today 

and were articulated previously by Senator Feinstein explaining 

the nature of the changes and the reason why the Justice Department made the changes. 

Let it be clear that there has been no change in Department of 

Justice policy regarding the non-interference relating to election 

matters on election crime investigations or prosecutions, either in 

the 1995 edition or the 2007 edition. The Department of Justice 

policy has remained the same. The changes were made because 12 

years had elapsed. There had been new case law. There had been 

additional lessons learned and experience derived from prosecutors, 

both in Washington and around the country. And as a result of 

those new laws and those additional experiences, this career-prepared document and guidance was distributed throughout the 

country. 

So, at present, in direct answer to your question, there is no— 

Senator WHITEHOUSE. You feel there is no need to restore the 

language from the 1995 manual that— 

Mr. SABIN. Well, let us go through some of the different points— 

no, there is not. 

14 

Senator WHITEHOUSE [CONTINUING].—Requires, for instance, Federal prosecutors and investigations to be extremely careful to not 

conduct overt investigations during the pre-election period. 

Mr. SABIN. And that remains our policy. Let’s walk through specifically what that means in terms of the non-interference policy, 

so that regarding the votes that are cast or counted for a particular 

election fraud or election crime matter, there will be a heed and an 

adherence to those core principles, which I think we share common 

ground on, namely, that the concerns that an overt criminal enforcement action could have on chilling legitimate voting; that overt 

criminal activity could interfere with the administration of the elections by State and local officials; and that you could transform a 

criminal investigation into a campaign issue, for example, by appearing to legitimize unsubstantiated allegations. 

So those core concerns I believe are present in the 1995 edition 

and are present in the 2007 edition. 

Senator WHITEHOUSE. My time has expired, and I am not trespassing on my colleague’s courtesy. So if you could follow up with 

a question for the record as to where those are in the 2007 manual, 

and I will end my questioning at this point because my time has 

expired. 

Mr. SABIN. Again, we specifically addressed that in the February 

letter, but we would be happy to do it further in questions for the 

record that you or your staff provides to us. 

Senator WHITEHOUSE. I would appreciate it. 

Mr. SABIN. Yes, sir. 

Senator CARDIN. Senator Coburn. 

Senator COBURN. Well, let me, first of all, thank both of you for 

your service and your attendance here today, and I would apologize 

on behalf of myself for the tardiness with which you received your 

hearing and the tardiness with which we have failed to act on your 

nomination. So you have my apologies. 

I want to follow up a little bit on the line that Senator Cornyn 

raised. If, in fact, the Department of Defense is denying a civil 

right to a soldier outside of this country by not delivering in a timely way either the cards for notification so they can seek a ballot or 

the delivery of a ballot when it is cast in a timely manner, why is 

it that you lack authority to file a case against the Department of 

Defense? You would not lack that authority against any other 

branch of the Federal Government. Why would you lack authority 

in filing that against the Department of Defense? 

Ms. BECKER. Thank you, Senator Coburn, and I appreciate your 

comments in the introduction. 

This is an issue that I believe would be primarily handled by the 

DOD Inspector General’s Office. If it appears that there is a public 

integrity issue that is going on there, that may be something that 

may be referred to other components of the Department of Justice. 

But at the first instance, an allegation of this nature should be 

handled by the DOD Inspector General’s Office. We have referred 

the matter to them in the first instance to take appropriate action. 

If there is additional action to be taken where they think that 

somebody has been—an employee of the Department of Defense 

has done some wrongdoing and they make additional referrals to 

15 

the Justice Department, that would be something we would have 

to take on a case-by-case basis, Senator Coburn. 

I can tell you that situation has not arisen, so it would be one 

that I would want to give some further thought to if something like 

that were to arise. 

Senator COBURN. Well, the problem I have with that is just by 

sheer incompetence, one in 20 people who chose to vote did not 

have their votes counted. And if that is not a denial of their civil 

rights, I do not know what is. You have 19 out of 20 military personnel who actually cast a ballot, and the ballot did not count because of the incompetence or malfeasance of the Defense Department. 

Now, to me, that is a direct—no matter what your motivation is, 

the fact is that if you are denying a civil right to a soldier who is 

defending our rights, why is it that we do not have the right to 

hold the Defense Department accountable through the Justice Department for their own civil rights? 

Ms. BECKER. I think the Department of Defense can be held accountable. There is an Inspector General at the Department of Defense that can hold their employees accountable. Again, if there is 

additional action to be taken, that will have to be handled on a 

case-by-case basis to determine if there is jurisdiction for whether 

it is the Civil Rights Division or another component of the Justice 

Department to take any appropriate action if there is malfeasance 

by DOD employees or something of that nature. 

But, again, in the first instance, Senator, I share your concern 

on this very important issue. I think it is very important for all of 

us to be doing everything that we can to ensure that service members have the right to vote in this very important election. And if 

they are not getting the information that they need, that is something that is of concern to all of us. 

Senator COBURN. Well, let me rephrase the question again. Let 

us say that only minority voters in the military voters, they had 

one in 20 ballots cast, but if you were a non-minority military outside of this country, you had 19 out of 20 cast. Would that then 

qualify as a civil rights violation of the minorities in the military? 

Ms. BECKER. Again, this would be something that would be of 

concern to us in the Civil Rights Division. We would have to look 

at the totality of the facts and the circumstances to make an assessment of that. It would be difficult for me in a hypothetical setting to opine one way or the other. 

Senator COBURN. Okay. Well, I am not going to get where I 

wanted to go. To me, I think it is an absolute embarrassment to 

us as a Nation to have 6 million military and civilian—combined 

military and civilian people throughout this country, spread around 

the world, spread around our country, who desire to vote, who actively, in spite of the lack of effort on the part of the Defense Department, got a card and got a ballot and their ballot did not count. 

I think we should be embarrassed. I think we as Congress should 

be embarrassed that we have not fixed that, that we have not held 

the Defense Department accountable. I think the Department of 

Defense should be embarrassed. But more importantly is—voting 

rights is for everyone, no matter where you serve, no matter what 

your color, no matter what your viewpoint, is the one thing that 

16 

makes us solid, keeps us solid is the right to have your vote counted. And I am extremely disappointed that we have not effectively 

solved this problem. And I do not have great hope that it is going 

to get solved this time. I have great trepidation that, in fact, 5 percent, again, are not-5 percent out of the ones that do finally cast 

a ballot will get their ballots delivered on time and actually be able 

to participate in our electoral process. 

Ms. BECKER. Well, Senator, I can give you my commitment that 

if there is an appropriate role for the Civil Rights Division to play 

in this regard, you have my commitment that we will do everything 

we can to ensure that the men and women in uniform get their 

right to vote protected. 

Senator COBURN. Thank you. 

I yield back. 

Senator CARDIN. I want to concur with Senator Coburn’s comments and Senator Cornyn’s comments. We want to make sure that 

everyone’s votes are counted, and it is very difficult when you are 

in the military service, and we should make it a lot easier, not 

more difficult, for them to vote. 

I had a chance to meet with Americans abroad during the last 

couple weeks, and a similar issue is involved there. We should be 

making it easier for people to be able to cast their ballots, and I 

think it should be of interest to the Department of Justice to work 

with the other agencies to make sure that we have the easiest system possible, because in many cases they have to comply with some 

State laws, and it becomes a complicated process. And 5 percent is 

certainly well, well below the interest levels of our military in participating in our political system. So there is a problem that has 

to be dealt with. 

I want to ask you a couple more questions, and then if my colleagues have additional questions, they will be recognized. 

I understand that the Department of Justice Criminal Division 

and the FBI recently had a conference. I also understand that you 

are contemplating the use of district election officials, which I 

would like to have a little more clarification as to who that person 

is, how they are being deployed. 

It seems to me this could be extremely constructive in helping 

the election process, but I want to make sure that we have adequate protections in here so it does not become a chilling influence 

on voter participation because someone believes they are being 

watched. 

Can either one of you help me as to what is being contemplated 

in using district election officials for the Federal Government 

around the country? 

Ms. BECKER. Let me begin by saying first what a district election 

official is. In each of the 93 United States Attorneys’ Offices, there 

is a point of contact on election day. This person is known as the 

district election official. This person is trained both in the laws 

that—the criminal laws for voter fraud as well as the Civil Rights 

Division voter access laws. They are the persons that can make the 

referral to the Civil Rights Division or to consult with the Criminal 

Division as necessary. 

They also conduct outreach with State and local election officials 

prior to election day so that they can make referrals as appropriate 

17 

to State and local election officials, should questions arise on election day, and take appropriate action. 

The question, I think, that you are referring to is the practice in 

both Democratic and Republican administrations of the very limited use of prosecutors from U.S. Attorneys’ Offices out in the field 

as monitors on election day. These may or may not be the district 

election officers of the day. They have been used in very limited circumstances, very carefully, and without any complaint that there 

has ever been a problem with a prosecutor who is serving as a 

monitor on election day. That person is not there in their role as 

monitor, but as a volunteer. 

They usually are selected because they are Civil Rights Division 

alumni, so they may have experience being a monitor in the past 

and they are willing to help us out on election day; or they may 

be an individual that has had specific language capabilities so that 

if we are monitoring elections and to make sure that they are 

meeting their obligation under language minority provisions, we 

have somebody who is familiar with the language who can be able 

to assess that and observe that. 

They are trained to look for Federal civil rights violations. They 

are trained not to interfere in the election. If they see a problem, 

they are not to fix it, they are not to interfere. They are to report 

it to a supervisor. The supervisor is a Civil Rights Division attorney and can make the appropriate referral, whether it is to the district election officer or to State and local or to keep it within the 

Civil Rights Division. 

These individuals are not identifiable in any way as prosecutors. 

They are casually dressed. They do not wear guns. They do not 

have badges. They are not outwardly identifiable as law enforcement officers. And so they have been used very carefully and without any complaints that we are aware of that anyone has been intimidated by our use, limited use, again, in Democratic and Republican administrations in this regard. 

But this is a very important issue that we take very seriously at 

the Civil Rights Division. We certainly do not intend and do not 

want to intimidate voters. So we are very, very careful. 

Senator CARDIN. Thank you for that answer. 

I want to ask you about technology and how we have to stay 

ahead of it, and let me use as the example robo-calls. I am convinced that some campaign is going to put up robo-calls pretending 

to be the other candidate just to annoy the voters in an effort to 

discourage them from voting. These robo-calls have become a nuisance to a lot of voters. They are relatively inexpensive. The message is very difficult to trace as to who is using the message. They 

can be targeted to minority communities kind of easily. 

I just really want to alert you and just urge you to take a very 

careful look as to how campaign tactics are using new technologies 

that could be used in a very sophisticated way to target minority 

voters to affect the impact a community has in the elections. And 

robo-calls is just one example. We know there was misleading information put out by robo-calls in the last election cycle. We know 

that for sure. And whether you are looking at how the challenges 

of new technologies can be used to thwart the Civil Rights Acts. 

18 

Ms. BECKER. Senator, new technology, of course, is always a 

challenge. This is something that we are concerned about. I urge 

members of this Committee and members of the public, if they become aware of instances of this, to please bring it to our attention. 

We will have the hotline available, as well as fax and Internetbased mechanisms. We want to hear about these issues. If we hear 

about them before election day, there may be ways for us to work 

with the States— 

Senator CARDIN. And that leads me to a last question. Have you 

sent notices out to the parties of interest so that they know how 

to contact you, how to work with you, how to make sure that we 

have avenues available to take corrective action or to document 

problems for election day? 

Ms. BECKER. We have. We have sent out our contact information 

to dozens of civil rights organizations that we have met with, to 

State and local election officials. I have met with the National Governors Association, the National Association of State Legislators, 

the National Secretaries of State, of course, and other State and 

local officials, and we have given them our contact information. In 

addition, we will have the hotlines available. We will have district 

election officers in the districts, who will also be sending out their 

contact information. So we will have many opportunities for people 

to contact us if these problems arise. 

Senator CARDIN. Thank you. 

Senator Cornyn. 

Senator CORNYN. Thank you, Mr. Chairman. I do not have any 

other questions of these witnesses. 

Senator CARDIN. Senator Whitehouse. 

Senator WHITEHOUSE. Thank you, Mr. Chairman. Just a few 

questions, if I may, for Ms. Becker about Section 7 of the National 

Voter Registration Act. 

As I understand it, there was a very successful action undertaken against Tennessee several years ago. Recently, you have announced action with respect to Arizona, and there is ongoing litigation regarding New York. I also understand the Department has 

mailed 18 letters to different States last year requesting information about their compliance with Section 7. 

Can you tell us what the response has been to those 18 letters? 

Do you expect to take any further action as a result of that response? And are there any Section 7 enforcement actions that you 

envision before the election? 

Ms. BECKER. Senator, thank you. We are committed to enforcing 

all of the provisions of the National Voter Registration Act as well 

as all the statutes that we are enforcing in the Civil Rights Division. 

Based upon the letters that we sent out, two of them were targeted to Nebraska and Iowa, and we were able to receive, I am 

happy to report, favorable results in that regard in the form of voluntary compliance. Both of those States enacted new State legislation based upon our inquiries, and that is certainly a good thing 

for the voters in those States. In addition, we have closed some of 

those investigations, and some of them remain open and active. 

While I cannot predict any particular timeline—every investigation 

is on its own timelines. As you know from being a U.S. Attorney, 

19 

you can never predict these things. But we certainly are committed 

to continuing to enforce Section 7 as well as all of the statutes that 

we enforce in the Civil Rights Division. 

Senator WHITEHOUSE. So of the 18, two have resulted in voluntary compliance that has allowed you to close the case out to 

your satisfaction. Of the remaining 16, could you enumerate how 

those have turned out at this point? 

Ms. BECKER. I do not have the specific—we have two that are 

currently ongoing and active in the Section 7 area, but I do not 

know if we have closed all of the other remaining ones or if some 

of those may remain open. But I know of at least two Section 7 investigations that are currently open and active. 

Senator WHITEHOUSE. So that would be—two and two is four, 

and that leaves 14 remaining. 

Ms. BECKER. I do not have the specific numbers for each and 

every letter that we sent out, Senator Whitehouse. 

Senator WHITEHOUSE. Would you mind answering that as a question for the record then? 

Ms. BECKER. I would be happy to. 

Senator WHITEHOUSE. Great. Thank you. 

Thanks, Mr. Chairman. 

Senator CARDIN. Well, let me thank both our witnesses. This 

past week, I was on college campuses, and I know there is some 

anxiety as to concerns that may develop in regards to voters who 

are on college campuses and the ID systems, et cetera. We might 

be submitting a question to you for the record. But if you will just 

also be very sensitive to the concerns there so that—as Senator 

Cornyn said and Senator Coburn said, we want to make sure everyone who is eligible to vote has the opportunity to vote, whether 

they are serving our Nation in military service or whether they are 

students, that we make it as easy as possible that they can cast 

their votes on November the 4th. 

Thank you both for your testimony. I appreciate it. 

Senator CARDIN. We will now turn to our second panel, if they 

will come forward, and I will first administer the oath, and then 

I will introduce them. If you will remain standing. 

If you will all please remain standing in order to take the oath. 

Do you affirm that the testimony you are about to give before the 

Committee will be the truth, the whole truth, and nothing but the 

truth, so help you God? 

Ms. ANDERSON. I do. 

Ms. O’LEARY. I do. 

Ms. DANIELS. I do. 

Senator CARDIN. Thank you. Please be seated. 

Our panel consists of Keshia Anderson, who will tell us what 

happened to her when she tried to vote in the February 2008 Presidential primary in Virginia. Keshia is a special education teacher 

in Richmond, Virginia, and is a graduate from Virginia State University. 

Bryan O’Leary is the Director of Capitolink. He represents a 

wide range of C&M Capitolink and Crowell & Moring LLP clients 

with a focus on the defense sector. He served as the National Security Adviser to Senator Coburn. Well, he has a distinguished 

record. Prior to that he served as the military and foreign affairs 

20 

adviser to Senator Burns, a senior member of the Defense Appropriations Committee and the Military Construction and Veterans 

Affairs Appropriations Committee. 

And Professor Gilda Daniels has more than a decade of voting 

rights experience and served as a Deputy Chief under both the 

Clinton and Bush administrations. She was the Deputy Chief in 

2000 and has worked within the Voting Section to address a myriad of issues that arise during the election. She served in the Department of Justice Civil Rights Division’s Voting Section as a staff 

attorney from 1995 to 1998 and Deputy Chief in that section for 

6 years, from 2000 to 2006. 

Welcome. It is a pleasure to have you all before our Committee. 

We thank you for taking the time to be here, and we will start with 

Ms. Anderson. And your entire statements will be made part of our 

record, without objection. 

STATEMENT OF KESHIA ANDERSON, CHESTERFIELD, 

VIRGINIA 

Ms. ANDERSON. Senator Cardin and members of the Senate Judiciary Committee, it is a privilege to be here today to share my experience attempting to vote in Chesterfield County, Virginia, during the 2008 Presidential primary on February the 12th. 

My name is Keshia Anderson, and I am not a public person. I 

am a mother and school teacher and never thought I would be in 

front of United States Senators. 

I was born and raised in Virginia and graduated from high 

school in Chesterfield County in 1992—one of just a few AfricanAmerican students. I now teach special education students. 

Chesterfield County is just outside the city of Richmond. It has 

more people and more money than most Virginia counties. Where 

I live, there is not as much money, but there are now many African-Americans compared to most areas of the county. 

I came here to tell you what happened to me when I tried to vote 

because of what my grandmother, may she rest in peace, taught me 

by word and example. She cherished the right to vote. My grandmother took extra jobs cleaning houses to afford the Virginia poll 

tax to ensure that she could vote. She had to ride the bus 25 minutes to vote, and she sometimes brought elderly family members so 

they could vote, too. 

When I went to vote in this year’s historic Presidential primary, 

like my mother used to do to me, I brought my 7-year-old son. I 

hope the Department of Justice will take action to prevent what 

happened to me and many others in Chesterfield County from happening again. Here is what happened. 

My mother votes at the same elementary school as I do. She 

called me and told me at 6:15 a.m. there already was a long line, 

stretching from the cafeteria out into the hall. 

I first arrived to vote around 7:30 a.m. with my son before work. 

The parking was so bad, we decided to try again later. 

Around 5 p.m., we drove through the rain back to our precinct. 

The situation was no better. The parking lot was so full that people 

were parked along the grass and the road. Inside, the line was 

huge, even longer than before. It could have been 200 voters, exVerDate Nov 24 2008 12:56 Apr 07, 2009 Jkt 048220 PO 00000 Frm 00024 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\48220.TXT SJUD1 PsN: CMORC
21 

tending from the cafeteria where we vote, all the way down to the 

classrooms. Most of the people waiting were African-Americans. 

After more than an hour, the line stopped moving. We weren’t 

told why. We were just told to wait. I was growing frustrated, and 

my son was getting hungry. His experience was not what I had 

hoped, and my job meant that I still had papers to grade that 

evening. 

I noticed that some people in line left without voting, sometimes 

saying they just could not afford to wait or could not stand long 

enough. One lady near us explained that she would have to pay 

extra money to have her son stay late at day care so she could vote. 

But after waiting in line for more than an hour, and not knowing 

how much longer was needed, she had to leave to pick him up 

without voting. 

Another lady brought her mentally challenged daughter with 

her. They also had to leave without voting. A third woman said 

that there were no chairs to rest on, and her handicapped husband 

was waiting in the car until she got to the front, but they both left 

without voting. 

As my son and I waited, something happened that seemed really 

absurd. One poll worker announced that anyone voting Republican 

could go straight to the front of the line and vote. I watched as a 

few white voters came out of the long line of mostly African-American voters and proceeded directly to the front tables. Shocked and 

frustrated, I asked why. The poll worker at the precinct explained 

that the precinct had run out of Democratic ballots. 

The poll worker found some computer paper, you know, the old 

kind with the holes and the perforated lines on the side, and she 

tore the paper into pieces for our use as ballots. She explained that 

she had been trying to get more Democratic ballots from the county 

all day. She told Democratic voters to handwrite our choice for 

President on the scraps of computer paper. ‘‘Barack Obama’’ was 

probably spelled many different ways that night. 

At about 6:30 p.m., I finally was called to the table. Assured by 

the precinct workers that my vote would count, I wrote my candidate’s name on the torn piece of computer paper and went home. 

Some voters stayed around, hoping regular ballots might still arrive. 

Just before the polls closed at 7 p.m., a friend called saying that 

state troopers brought 45 more real ballots and that the handwritten ballots would not count. But I was too far away to get back 

in time, and I knew that 45 ballots weren’t nearly enough for everyone in line. 

Later, I learned that I was one of the 299 voters in a few precincts given scrap paper ballots that did not count. 

Many voters in my precinct were driven away even before having 

to decide whether to stay and vote on scrap paper. Overcoming bad 

weather, job obligations, and family care challenges were just the 

beginning—then parking, voter lines, and delays, finding chairs to 

rest on, not finding Democratic ballots, or much information, and 

scrap paper voting. 

Many of us in that line were deprived of our right to vote, even 

though we had overcome all of the obstacles put in our way and 

had done absolutely everything asked of us, whether reasonable or 

22 

not. I came to the precinct twice to try to vote, watched while white 

Republican voters moved to the front of a long line of mainly African-American voters, and followed every troubling instructions to 

write the name of my Presidential candidate on torn computer 

paper. 

I was upset and angry about these barriers, especially in a historic Presidential primary between a woman and an African-American. The election drew record participation everywhere. I don’t 

know if my grandmother could have imagined such a contest, but 

I knew she would not have imagined that there would be obstacles 

that prevented me from voting in it. 

I hope the lesson that my son and other voters learned is not 

that our precious right to vote can easily be taken away. 

Thank you. 

[The prepared statement of Ms. Anderson appears as a submission for the record.] 

Senator CARDIN. Thank you very much for your testimony. 

Mr. O’Leary. 

STATEMENT OF BRYAN P. O’LEARY, CAPITOLINK DIRECTOR, 

CROWELL & MORING LLP 

Mr. O’LEARY. Mr. Chairman, thank you for inviting me to testify 

today. 

In 1952, President Harry Truman wrote to Congress regarding 

military absentee voting. He said, ‘‘At a time when these young 

people are defending our country, the least we at home can do is 

to make sure that they are able to enjoy the rights they are being 

asked to fight to preserve.’’ 

Over 50 years later, military voting remains a burdensome bureaucratic effort that obstructs our military men and women and 

their families from being able to exercise their constitutional right 

to vote. Because of the long delays and the reliance on the U.S. and 

the military mail systems, our military men and women need to act 

today to ensure that their vote is counted. For our military men 

and women deployed to Iraq and Afghanistan and around the 

world, today is their election day. 

The Election Assistance Commission survey results from 2006 

show that of the estimated 6 million military, military dependents, 

and overseas citizens eligible to vote, just under 1 million-– 

992,000—requested their ballot; and of that 992,000, only 330,000 

ballots were returned to their local election official. 

Again, I would like to reiterate Senator Cornyn’s and Senator 

Coburn’s comment that this is a 5.5-percent voter participation 

rate, which is shocking and shameful. 

In addition, 48,628 uniformed and overseas ballots were rejected 

in 2006. These facts show that the current military voting system 

has failed our military men and women and their families. 

I saw these problems firsthand as a voting assistance officer in 

the Marines, and I want to emphasize as well, I am not a lawyer. 

I was not a lawyer in the Marine Corps. I was an officer. I was an 

F–18 pilot. And I had a military mission: to do that job. That military mission was not nearly as stressful or as tasking as our young 

platoon commanders and company commanders who are deployed 

right now in Iraq and Afghanistan. But the Voting Assistance OffiVerDate Nov 24 2008 12:56 Apr 07, 2009 Jkt 048220 PO 00000 Frm 00026 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\48220.TXT SJUD1 PsN: CMORC
23 

cer Program is being managed by the very platoon commanders 

and company commanders who are trying to fight a war. So while 

they are trying to fight a war, they have to sift through Federal, 

State, and local regulations that are all different, deadlines that 

are all different. And I would like to present to the Senators and 

the staff after this the specific deadlines for the States, for your 

States, because, Chairman Cardin, I can assure you that there is 

a huge number of Maryland National Guardsmen military members who will not be able to vote. 

In conclusion, our military men and women serve around the 

world and risk their lives in defense of freedom, and yet their own 

ability to exercise their fundamental rights is being obstructed. 

This problem could have been solved years ago, yet our industrial 

age Government has failed to embrace the information age. Technology is available today to securely encrypt and electronically 

transmit ballots to military men and women around the world. 

For this coming election in November, it is critical that the Department of Justice press the Department of Defense and State 

election officials to ensure that our service men and women are 

given the time required to receive their ballots and return them on 

time. These military men and women are citizens first, and as citizens they deserve the full attention of the Department of Justice 

to protect their right to vote. 

Mr. Chairman, thank you for allowing me to testify today. I look 

forward to your questions. 

[The prepared statement of Mr. O’Leary appears as a submission 

for the record.] 

Senator CARDIN. Thank you very much. 

Professor Daniels. 

STATEMENT OF GILDA R. DANIELS, ASSISTANT PROFESSOR 

OF LAW, UNIVERSITY OF BALTIMORE SCHOOL OF LAW, BALTIMORE, MARYLAND 

Ms. DANIELS. Senator Cardin, it is an honor to appear before you 

this afternoon to discuss ways that the Department of Justice can 

better prepare for the 2008 Presidential election. 

As you mentioned, I have more than a decade of voting rights experience and served as a Deputy Chief in both the Clinton and 

Bush administrations from 2000 to 2006. I have served in the Department of Justice, Civil Rights Division, Voting Section as a staff 

attorney and a manager. I also served as a staff attorney in the 

Lawyers’ Committee for Civil Rights Under Law on its voting 

rights project. Currently, I am an Assistant Professor at the University of Baltimore School of Law, where I teach election law, 

among other subjects. 

The Department of Justice was surprised, along with the rest of 

the world, in 2002 when the country was crippled with hanging 

chads, dimpled ballots, and faulty voting machines. In 2004, it was 

accused of playing politics with the right to vote. It has another 

chance to get it right in 2008. Senator Cardin, it is very important 

that we get it right this time, but all indications show that there 

is much work to be done. 

The Department’s current focus on vote integrity minimizes its 

statutory requirement to monitor and enforce voter access. The 200 

24 

individuals who have been charged with various election crimes 

since 2002 pales in comparison to the half a million citizens whose 

provisional ballots were not counted in 2004 or the hundreds of 

thousands who were turned away, stood in long lines, were illegally 

purged, and/or subjected to other disenfranchising methods. DOJ’s 

focus is wrong and needs adjusting. 

In light of the problems and issues with the last two Presidential 

elections, it is vitally important that the Department use the full 

breadth of its statutory authority to act proactively to ensure that 

our democratic process provides every eligible citizen the opportunity to access the ballot and ensure that that ballot will be counted. In order to protect the fundamental right to vote, the Government must act prior to election day. The Department should initiate contact with both State election officials and organizations to 

engage in a significant exchange of information in a nonpartisan 

and proactive way. 

In 2004, the Department of Justice, Civil Rights Division, Voting 

Section sent three letters—one in July, another in September, and 

another in October—to the chief election officials of each State regarding its UOCAVA responsibilities. The letters were sent, in 

DOJ’s words, in ‘‘an effort to avoid the necessity of litigation to ensure that States are aware of their obligation under UOCAVA.’’ 

Now, while military absentee voting is very important, the DOJ 

has devoted an inordinate amount of resources to that task and 

voter fraud inquiries with little left over to address voter access or 

perennial disenfranchising devices, such as ill-advised voter purges, 

voter registration problems, disproportionate distribution of voting 

machines, and voter deception—all of which deny eligible citizens 

the right to vote. 

In my written testimony, I have outlined some of the critical 

problem areas during the 2004 election cycle, the DOJ’s statutory 

authority to act, and proposed steps that the Justice Department 

should take to ensure that these problems are not repeated this 

November. However, it is essential that the Department act now. 

Based on my experience, I would like to make the following recommendations: 

Immediately, the Department of Justice should immediately send 

letters to all States outlining Federal voting rights statute requirements regarding voter purges, voter registration, UOCAVA, et 

cetera, with deadlines for action. And as Ms. Becker mentioned 

earlier today, they have already done so in regards to their 

UOCAVA responsibilities and can do so regarding their NVRA and 

Voting Rights Act responsibilities. 

DOJ should also send letters and conduct calls to States with 

‘‘observed’’ problems that could violate Federal voting rights statues, for example, lack of adherence to minority language requirements, information on particularly hostile areas or contests. 

It should also hold meetings with advocacy groups to ‘‘coordinate’’ 

election coverage. I am aware there was a meeting yesterday, but 

it was more to—with all due respect, it was more of a photo opportunity than an actual exchange of ideas or information. I think 

there is certainly a need in the 60 days prior to the Presidential 

election to have an exchange of ideas amongst organizations on the 

grass-roots and national level. 

25 

The Department should also provide jurisdictions and advocacy 

groups with a list detailing election coverage at least 1 week prior 

to the election. Currently, that list goes out the Friday before the 

Tuesday election. 

It should also begin more extensive election coverage training of 

Department of Justice staff stressing ‘‘voter access’’ issues instead 

of ‘‘voter fraud.’’ As you are aware, Senator Cardin, there has been 

an exodus of experienced attorneys in the Voting Section, and it 

leaves the section with a dearth of experience. For many of these 

attorneys, it could well be their first Presidential election to actually handle election coverage. Short of deputizing former DOJ Civil 

Rights Division, Voting Section attorneys, I think that it is imperative that they begin training the DOJ staff in regards to voter access issues and de-emphasize voter fraud. 

On election day, the Department should limit United States Attorney and FBI election coverage and ‘‘coordinate’’ communication 

with advocacy groups. It should also renew efforts to coordinate 

with civil rights and other organizations to discuss election day 

preparedness and learn how those groups plan to approach various 

voting irregularities. For example, if the civil rights organizations 

are telling their persons on the ground to always ask for a provisional ballot, that could be problematic if those provisional ballots 

will not be counted. It should also share how DOJ will address 

these issues. 

I also have recommendations for what I think Congress should 

do in regards to future elections that would address your questions 

earlier regarding what else is needed in order for the Department 

to enforce voting rights activity. 

Thank you, sir. I see that my time is expiring. 

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

for the record.] 

Senator CARDIN. Thank you very much for your testimony. I 

should acknowledge your connection to the University of Baltimore. 

I apologize for not doing that in the introduction. I like to give as 

much attention to that great school as possible. 

Ms. Anderson, let me first just thank you for being here. You put 

a face on the issue. We talk about people whose votes were not 

counted who tried to vote, and you give us a real person who went 

through this. And there unfortunately have been thousands of 

other people that are in similar situations that you were in, perhaps millions, that cannot stand in line for 2 hours. If you have a 

child at home or you have got to pick up a child at school or you 

are taking time off from work in order to vote, it is difficult to justify a couple hours to vote. And why should you have to spend a 

couple hours to vote with the technology we have today? 

One of the problems we have is that it appears that these problems come up more frequently in minority communities. And you 

start to wonder whether some of this is not just intentional neglect—I am trying to put my words carefully—but in an effort to 

say, you know, if we hold down the vote in a minority community, 

so what? It may help our candidate. 

I saw in my own State in the last election—I will just give you 

the example. In a very large African-American-dominated precinct, 

I received a phone call in the late afternoon. Now, I had traveled 

26 

through a good part of Maryland during the 2006 elections, and I 

saw voting precincts that were crowded in the morning, which is 

not unusual, and in the middle of the day it got pretty easy to get 

through the voting machines. And I got a call saying that in these 

precincts in Prince Georges County, Maryland, the lines are 2 or 

3 hours in the middle of the day. And I said, ‘‘How can that be? ’’ 

They said, ‘‘Well, they did not have enough voting machines, and 

then half the voting machines did not operate. And then they did 

not have this and they did not have that. So we have long lines. 

And now it is 4 o’clock in the afternoon, and they say it is going 

to be 3 hours before they can vote, and we are afraid a lot of people 

are going to give up and leave.’’ 

So I went there. I went to that voting place, because I did not 

believe it, and I saw firsthand that was exactly what was happening. And the circumstances you saw, with parents with their 

children and a lot of people who physically could not wait that long 

left. And that should not happen in the United States. It should 

not happen anywhere, but it should not happen in our country. It 

should not happen in any precinct. No one should have to go 

through that in order to cast a vote. 

But I really do believe that this is similar to what your mother 

or your grandmother was fighting to get rid of the poll taxes. 

Ms. ANDERSON. Yes, that is correct. She was one of the ones— 

she was very influential in helping to eliminate the poll tax and 

eliminate the literacy test that they had at that time. 

Senator CARDIN. Right. It seems like we thought we got rid of 

this, and we now have another challenge. And we are going to figure out a way to do it. The challenge we have, of course, is that 

a lot of this is under the control of our State and county board of 

elections. And, yes, the Department of Justice has certain responsibility, and if it is not strong enough, then I think we need to 

change the laws to make it strong because it is a national responsibility to make sure that our voting rights are protected for every 

citizen. So I really do thank you very much for your testimony. 

Thank you for your efforts to vote, and we will demand that this 

does not happen again and do everything we can to make sure that 

happens. 

Ms. ANDERSON. Thank you. I appreciate that. 

Senator CARDIN. Thank you. 

Mr. O’Leary, you are absolutely right. This is ridiculous that we 

cannot get a better system for our military. I look at the number 

of ballots that come back in Maryland—and I scratch my head— 

from the military. I mean, it just makes no sense at all. I know a 

lot of families—I know these people want to vote. So I cannot believe they do not have the interest and did not try to get ballots. 

And they do not come up, they do not show up in our elections. 

So it seems to me the Federal Government has a responsibility 

to make sure that our men and women who serve in the military, 

that their votes count. Technology is such that you could develop 

technology that could assure that those ballots are cast in a lot 

easier way and get to our election boards and we have paper trails 

to make sure there is no fraud. That is not difficult with today’s 

technology, is it? 

27 

Mr. O’LEARY. It is not. You are absolutely right, Mr. Chairman. 

In fact, before the 2006 election, Congress acted to have the DOD 

implement an innovative program that would allot ballot transmission. Now, this is not electronic voting. This is just getting a 

ballot to the service man or woman, the overseas civilian, and the 

way it would start was with the defense database, and it was a secure system. It was set up in 3 weeks, and it allowed that service 

man or woman to connect with the local election official. There are 

7,800 local election officials, so one of the big problems is just finding that person. And once they were connected, the service member 

would get an e-mail saying, ‘‘Your ballot is ready.’’ He would log 

onto the system, download, print his ballot, fill it out, and send it 

back in the mail. 

This is a simple solution. Congress told the DOD to execute it. 

They did not execute it. They did not tell anybody about it. So, as 

a result, only about half a dozen or a dozen votes were cast. 

There are definitely solutions to this, and this should not really 

be a partisan issue. This is a good-government issue. There are 

96,000 folks from Maryland who are overseas or in the military. 

Senator CARDIN. You are absolutely right. Now, this is a Presidential election year, and there is a lot of interest, and my guess 

is the numbers are going to be much, much higher because soldiers, Americans, are going to want to have their votes counted. 

But let us go 2 years from now, and you have State elections, 

and you have congressional elections. I think they are very interesting, particularly if my name is on the ballot, but it does not 

quite have the same appeal that a Presidential election has. And 

most voters really concentrate on the election just a few weeks before. 

Now, if you are serving in Iraq or you are serving halfway 

around the world and you are trying to make sure you get your 

vote counted and you start working on this 3 or 4 weeks before the 

election, there is a good chance you may not get your vote counted 

in today’s system. 

Mr. O’LEARY. That is absolutely right. In fact, the military postal 

system right now is recommending that military service members 

who are deployed send their ballots on September 30th in order to 

ensure that they get here by November 4th. Now, there are a lot 

of States that do not even send the ballots out until October. 

Senator CARDIN. Also, if you vote on September 30th, they are 

going to miss all the important campaign messages that a campaign sends out. 

Mr. O’LEARY. That is right. You miss the October surprise, and 

maybe you made a decision before that happened. 

Senator CARDIN. That is not right. Again, you are discriminating 

against the military by not giving them an opportunity to cast a 

contemporary ballot. It does not have to be election day, but they 

should certainly be able to cast a ballot a couple weeks before the 

election to make sure it is going to be counted. 

I think this is a Federal responsibility. I think we may have to 

look at changing the laws. But the response we got from DOJ was 

not that encouraging, so I think you are going to see on both sides 

of the aisle we are going to try to do something to deal with that. 

28 

Which brings me to Professor Daniels, and I love a lot of your 

suggestions. I am going to make sure they get over to DOJ. We will 

transmit it and make sure they have your suggestions on notification and get a reply from them as to whether they will implement 

some of your suggestions. But it really brings up the point that I 

am asking Mr. O’Leary. 

Some will say if we set up an Internet system for our military, 

even though we will have protections, paper trails, et cetera, that 

you may get a fraudulent vote that is cast there because maybe 

someone will steal someone’s ID and get into the system and cast 

a vote that should not be cast. And I guess my question for you, 

Professor Daniels, you have really studied the election law system, 

and we are now having a debate in Congress on voter ID that 

courts have ruled that that is certainly permissible, and I for one 

believe that anyone who tries to vote who is not eligible to vote, 

we should go after that person and prosecute that person. 

But at least it has been my experience that the number of people 

who fraudulently attempt to vote are so minuscule, that we have 

virtually been able to—we have not even documented any significant problems with people who are not eligible voting. But we have 

a lot of people like Ms. Anderson who are eligible to vote whose 

votes never get counted. And the same thing is true in the military. 

If we open up the system, I am certain we are going to get a lot 

of people who want to vote and their votes are going to count. And 

the number of fraudulent ballots is going to be inconsequential. 

So I guess my question to you is: As we look at what will be done 

on election day in 2008, is there a concern that we are now overreacting on the photo IDs and those types of laws where people have 

a hard time coming up with that type of identification and may be 

denied the right to vote, whereas we are missing the big picture 

and making it easier for people like Ms. Anderson to get their votes 

counted? 

Ms. DANIELS. Studies have shown that voter ID really does not 

have an effect on vote fraud issues, that vote fraud generally occurs 

in absentee ballots. So it is not the person who shows up at the 

polling place and says, ‘‘Hello, I am Senator Cardin,’’ and they are 

not Senator Cardin. It is the person who may have assisted in 

helping someone fill out an absentee ballot. 

But even on that level, it is a very small number compared to 

the numbers of persons—for example, on the provisional ballot 

issue, there were more than half a million provisional ballots that 

were not counted in the 2004 election. Out of 1.9 million provisional ballots that were cast, only 1.2 million were counted. And 

that is from an EAC study, the Election Assistance Commission 

study. 

So the numbers of persons who are turned away or provisional 

ballots not counted or may not have the appropriate voter ID but 

still remains an eligible voter, those are the numbers, I think, that 

the Department of Justice should concentrate on. Those are perennial disenfranchising methods that—it happens year after year 

after year. Students and voter ID, students not being able to use 

their college IDs in particular jurisdictions, long lines—those are 

issues that occur year after year after year that should be addressed. 

29 

And I agree with you, military voting is a big issue. But I think 

an inordinate amount of resources are being used to address that 

issue and not enough to address the issues that we know will occur 

in 2008. 

Senator CARDIN. And I do not disagree with your assessment 

that absentee ballots are much easier to deal with where you do 

not have to personally be present. But it is interesting in Oregon, 

which is all done by mail, where they do not have any same-day 

voting, the information that at least has been given to me is that 

the amount of fraud there is no greater than any other place in the 

country. In fact, they get a much higher percentage of participation 

because it is easier. 

Ms. DANIELS. I do not think that vote fraud is the issue that we 

need to concentrate on right now. I think it affects such a small 

percentage of our citizenry that we need to really concentrate, certainly spend more resources on these other areas. 

Senator CARDIN. Right. I agree with that. I remember when we 

did motor-voter, people said that the sky would fall in. It did not 

fall in. It just made it a little bit easier for people to get information about registering to vote, and the Federal Government took 

some responsibility here rather than just saying this is just a State 

issue. 

I really do think we need to take a look at stronger Federal 

guidelines to guarantee that every person who is eligible to vote in 

America can register easily, cast their vote easily and make sure 

that the integrity is in the system that that vote will be counted. 

I think that is a Federal responsibility, and that is why I think 

many of us are hoping the Department of Justice will take advantage of the 2008 elections, get information out locally to let the 

stakeholders know that there is a Federal partner in this. The Federal Government wants to do everything it can to prevent problems 

from happening; but if there are difficulties, we want to know 

about it so that we can take the appropriate either criminal actions 

or corrective actions so that we do not get a repeat of what happened in Virginia and so many other States in prior elections. We 

have got to stop that from happening again and to make sure that 

our military can vote. Five percent is unacceptable. I agree with 

you there. 

Well, let me thank the three of you for really adding, I think, a 

great deal to this hearing. We are going to follow up with the Department of Justice, and we will also follow up with the Department of Defense and with our local officials and try to assure that 

we have the most aggressive actions taken prior to the November 

4th election. 

The record will remain open for 1 week for additional questions 

or submissions for the record. And, with that, if there is no further 

business, the Committee will stand adjourned. Thank you all very 

much. 

[Whereupon, at 3:55 p.m., the Committee was adjourned.] 

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

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