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VOTING WRONGS: OVERSIGHT OF THE JUSTICE 

DEPARTMENT’S VOTING RIGHTS ENFORCEMENT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

APRIL 18, 2012 

Serial No. 112–114 

Printed for the use of the Committee on the Judiciary 

( 

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

(II) 

COMMITTEE ON THE JUDICIARY 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

MARK AMODEI, Nevada 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

JARED POLIS, Colorado 

RICHARD HERTLING, Staff Director and Chief Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION

TRENT FRANKS, Arizona, Chairman 

MIKE PENCE, Indiana, Vice-Chairman 

STEVE CHABOT, Ohio 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

JIM JORDAN, Ohio 

JERROLD NADLER, New York 

MIKE QUIGLEY, Illinois 

JOHN CONYERS, JR., Michigan 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

PAUL B. TAYLOR, Chief Counsel 

DAVID LACHMANN, Minority Staff Director 

(III) 

C O N T E N T S 

APRIL 18, 2012 

Page 

OPENING STATEMENTS 

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

of Arizona, and Chairman, Subcommittee on the Constitution ....................... 1 

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

of New York, and Ranking Member, Subcommittee on the Constitution ....... 2 

The Honorable Lamar Smith, a Representative in Congress from the State 

of Texas, and Chairman, Committee on the Judiciary ..................................... 5 

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

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

Member, Subcommittee on the Constitution ..................................................... 6 

WITNESSES 

Cleta Mitchell, Partner, Foley & Lardner 

Oral Testimony ..................................................................................................... 8 

Prepared Statement ............................................................................................. 11 

M. Eric Eversole, Director, Military Voting Project 

Oral Testimony ..................................................................................................... 25 

Prepared Statement ............................................................................................. 28 

Wendy Weiser, Director of Democracy Program, New York University School 

of Law 

Oral Testimony ..................................................................................................... 37 

Prepared Statement ............................................................................................. 39 

J. Christian Adams, Attorney, Election Law Center, PLLC 

Oral Testimony ..................................................................................................... 62 

Prepared Statement ............................................................................................. 64 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Material submitted by the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, Ranking Member, Committee 

on the Judiciary, and Member, Subcommittee on the Constitution ................ 86 

Material submitted by Wendy Weiser, Director of Democracy Program, New 

York University School of Law ........................................................................... 95 

Material submitted by the Honorable Trent Franks, a Representative in 

Congress from the State of Arizona, and Chairman, Subcommittee on the 

Constitution .......................................................................................................... 97 

Material submitted by the Honorable Jerrold Nadler, a Representative in 

Congress from the State of New York, and Ranking Member, Subcommittee 

on the Constitution .............................................................................................. 103 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Material submitted by the Honorable Trent Franks, a Representative in 

Congress from the State of Arizona, and Chairman, Subcommittee on the 

Constitution .......................................................................................................... 126 

Material submitted by the Honorable Jerrold Nadler, a Representative in 

Congress from the State of New York, and Ranking Member, Subcommittee 

on the Constitution .............................................................................................. 157 

Page

IV 

Response to Post-Hearing Questions from Cleta Mitchell, Partner, Foley & 

Lardner ................................................................................................................. 175 

Post-Hearing Questions submitted to M. Eric Eversole, Director, Military 

Voting Project ....................................................................................................... 189 

Response to Post-Hearing Questions from Wendy Weiser, Director of Democracy Program, New York University School of Law .......................................... 191 

Response to Post-Hearing Questions from J. Christian Adams, Attorney, Election Law Center, PLLC ....................................................................................... 200 

(1) 

VOTING WRONGS: OVERSIGHT OF THE JUSTICE DEPARTMENT’S VOTING RIGHTS ENFORCEMENT 

WEDNESDAY, APRIL 18, 2012 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON THE CONSTITUTION, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 9:07 a.m., in room 

2141, Rayburn House Office Building, the Honorable Trent Franks 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Franks, Chabot, King, Nadler, Conyers, 

Scott, and Quigley. 

Also Present: Representatives Smith. 

Staff Present: (Majority) Paul Taylor, Subcommittee Chief Counsel; Zachary Somers, Counsel; Dan Huff, Counsel; Sarah Vance, 

Clerk; (Minority) David Lachmann, Subcommittee Staff Director; 

and Veronica Eligan, Professional Staff Member. 

Mr. FRANKS. Good morning, and welcome to this Constitution 

Subcommittee hearing on Voting Wrongs: Oversight of the Justice 

Department’s Voting Rights Enforcement. 

Without objection, the Chair is authorized to declare recesses of 

the Committee at any time. 

I want to welcome the panelists here and welcome all of you here 

this morning. 

Today, we examine what the Voting Section at the Department 

of Justice has been doing and what it has not been doing. As the 

2012 Presidential election nears, the Voting Section must ensure 

that those military members who are defending our Republic have 

the opportunity to participate in it. 

There are approximately two million military voters, many in 

combat zones, many risking their lives on behalf of all of us, but 

with limited access to ballots. Accordingly, in 2009, Congress 

passed the Military and Overseas Voter Empowerment Act, MOVE, 

which requires States to mail absentee ballots to all military voters 

at least 45 days before a Federal election. The Military Voter Protection Project analysis shows that inadequate enforcement of the 

MOVE Act in the 2010 cycle disenfranchised thousands of service 

members. This year, DOJ must identify violations early, negotiate 

strong settlements that deter repeat offenses, and ensure military 

recruitment centers and bases offer opportunities to register or request ballots as required by law. 

2 

In 2010, there were at least 14 States with counties that failed 

to meet the 45-day deadline. Nonprofit watchdogs discovered that 

DOJ failed to prosecute most of these illegalities, leaving insufficient time for corrective action that would fully protect thousands 

of military voters. 

Where DOJ sued violators for missing the 45-day deadline to 

mail the ballots, it settled for an extension of time for military voters to return them. But that does not solve the problem, because 

the absentee ballot must reach the voter by election day to count, 

no matter when it is returned. Therefore, DOJ’s so-called solution 

systematically disenfranchises military voters. 

DOJ didn’t require jurisdictions in violation to use Express Mail 

to send the ballots. While it costs more, DOJ does not hesitate to 

impose heavy costs on jurisdictions when it suits their ideological 

agenda, for example, by requiring bilingual ballots for voters who 

claim to speak English well. Similarly, the Justice Department 

seems unconcerned about low registration rates for military recruiting centers, even though it aggressively sued States which it 

thinks register an insufficient number of people at welfare offices. 

The Voting Section needs to make a first priority of protecting 

service members whose first priority is protecting all of us. Instead, 

the Voting Section is seeking headlines in opposing voter ID laws 

that an overwhelming majority of Americans support as necessary 

and non-discriminatory. 

In a 2008 case, the Supreme Court recognized, ‘‘The electoral system cannot inspire public confidence if no safeguards exist to confirm the identity of voters.’’ It hardly inspires public confidence 

that a White 20-something can obtain the ballot of the first Black 

Attorney General. Let me say that one more time. It hardly inspires the public confidence that a White 20-something can obtain 

the ballot of the first Black Attorney General. There is a little video 

here to illustrate that point. 

[Plays video.] 

Mr. FRANKS. Opposing voter ID is consistent with the Voting Section’s pattern and practice of making strained legal arguments in 

areas it favors ideologically. 

A starker example of DOJ’s uneven priorities is its selective enforcement of the National Voter Registration Act. DOJ is aggressively suing States for not registering sufficient voters at welfare 

offices, and at the same time it has not brought a single case under 

Section 8 of the law requiring States to maintain the accuracy of 

their voter lists, despite documented inaccuracies. The result is the 

identities of illegal or dead persons could be used to cancel out lawful votes. 

With that, I would now recognize the Ranking Member, Mr. Nadler, for his opening statement. 

Mr. NADLER. Thank you, Mr. Chairman. 

We are back again with another oversight hearing airing allegations, most of them demonstrably false, against the Department of 

Justice without inviting the Department of Justice to testify. 

I have served in the House since 1992 and never before this Congress have I ever seen anything quite like what has become standard practice in this Committee. We hold hearings on legislation 

stripping the District of Columbia of its basic home rule rights 

3 

without the courtesy of allowing the Delegate from the district to 

testify. We have hearings on the Department of Justice and other 

executive branch agencies in which witnesses allege misconduct 

without inviting the Department or the Administration to testify or 

to rebut. 

I suppose I should be grateful that the minority is allowed a single witness. Evidently, some Republican Chairman believe that 

even this is optional. 

This conduct is unbecoming of this Committee and of this House. 

If we are going to turn these hearings into veritable able kangaroo 

courts, then we should drop the pretense that we are actually engaged in objective oversight or legitimate fact finding. And I hope 

that no one will insult our intelligence by telling us that the minority could have invited the Administration to testify as our one sole 

minority witness that we are allowed. 

I say this because the issue before us today, the right to vote in 

a free and fair election and the right to have our votes counted, is 

at the heart of our system of government. Indeed, it is a fundamental part of who we are as Americans. Without free and fair access to the ballot for all Americans, our democracy would be a 

sham. 

Devices to suppress voting, like restricting voter registration or 

selectively requiring photo IDs that are more commonly possessed 

by White voters and not by minority, young, or elderly voters, betrays our right to a republican form of government—small ‘‘r’’—as 

guaranteed by Article 4, Section 4 of the Constitution. 

We are even going to have a rehash of long-discredited allegations about the New Black Panther Party case, one in which no 

voter has ever complained of having been intimidated. As Abigail 

Thernstrom, a Republican member of the Civil Rights Commission, 

put it succinctly, ‘‘This doesn’t have to do with the Black Panthers. 

This has to do with Republican fantasies about how they could use 

this issue to topple the Administration. My fellow conservatives on 

the Commission had this wild notion that they could bring Eric 

Holder down and really damage the President.’’ 

I think it is also important to keep in mind that widespread 

voter fraud is a talking point, not a demonstrated reality. One Republican witness has submitted a list of alleged voter fraud cases 

stretching back to the 1990’s. What is striking about this list is 

that many of the cases have nothing to do with voter ID, such as 

alleged cases of vote buying or stealing ballots; that some States 

have only one case; and that some States are not even on the list. 

Very pervasive. 

It is especially interesting that the list makes no mention of 

voter suppression, when just recently former Maryland Governor 

Bob Ehrlich’s campaign manager was convicted and sentenced for 

using fraudulent robocalls to suppress the vote in the African 

American community. 

I also see no mention of the recent unsuccessful effort by the Republican National Committee to get out from under a 1982 consent 

decree in which the Republican National Committee agreed to stop 

engaging in various voter suppression tactics aimed at suppressing 

minority votes. 

4 

The Third Circuit’s decision, handed down just a few weeks ago, 

makes for interesting reading. In the 1982 consent degree the RNC 

agreed ‘‘to refrain from undertaking any ballot security activities in 

polling places or election districts where the racial or ethnic composition of such districts is a factor in the decision to conduct or 

the actual conduct of such activities there and where the purpose 

or significant effect of such activities is to deter qualified voters 

from voting.’’ 

I hope that we will have the opportunity to discuss the issue of 

voter suppression and the pretextual and nonsensical allegations of 

voter fraud as an excuse for voter suppression which we see all 

over the country now. 

The Supreme Court has noted the rarity of in-person voter fraud, 

and I would point out that cases of ballot stuffing or other kinds 

of alleged fraud have nothing to do with voter ID. It is only in-person voter fraud that has anything to do with voter IDs. In 

Crawford versus Marion County Election Board, the Court found 

that ‘‘there was no evidence of any in-person voter fraud actually 

occurring in Indiana at any time in its history.’’ 

There have, however, been instances of individuals who are duly 

qualified voters being turned away. Perhaps most notoriously, 

again in the State of Indiana, 12 nuns in their 80’s and 90’s were 

denied their right to vote because they did not have drivers’ licenses and had outdated passports. Sister Julie McGuire, who 

turned the nuns away, said they hadn’t been given provisional ballots because it would be difficult to get the nuns to a motor vehicle 

branch for non-driver IDs in time for the 10-day window allowed 

for provisional IDs. Sister McGuire told the Associated Press, ‘‘You 

have to remember that some of these ladies don’t walk well. They 

are in wheelchairs or walkers or electric carts.’’ They were all denied their right to vote. 

This Committee in our investigation of the U.S. Attorney firing 

scandal—I think it was about 4 or 5 years ago—and in another investigation by the IG and the Office of Professional Responsibility 

uncovered evidence showing that some of the U.S. Attorneys had 

been fired at the direction of high-level Bush White House officials 

because of complaints that the U.S. Attorneys did not pursue voter 

fraud prosecutions that they had determined to be meritless. So 

they were fired. 

In one case, in addition to White House personnel, evidence was 

uncovered that a Republican Senator and a Republican Member of 

this House had applied political pressure to get prosecutions initiated before the elections. 

I hope that as we receive testimony from Republican party attorneys alleging pervasive voter fraud, we can remember these facts. 

Mr. Chairman, it wasn’t too many years ago that I had the privilege of working on a bipartisan basis with the Republican Chairman of this Committee to reauthorize the Voting Rights Act. It was 

a reflection of our belief that the right to vote must be inviolate 

and that there are still too many challenges to making that a reality for all Americans, especially members of minority communities. Chairman Sensenbrenner and Ranking Member Conyers 

demonstrated what a genuine commitment to voting rights can accomplish when we put our minds to it. 

5 

I also realize that the vote to reauthorize the Voting Rights Act 

was not unanimous and that some Members of this Committee did 

not vote for it. That is certainly a Member’s prerogative, and I have 

to respect it. Nonetheless, I would hope that at some point we 

could return to that bipartisan consensus in favor of the right to 

vote. Without it, we cease to be the America that all of us believe 

in. I don’t believe we can ever allow that to happen. 

I join the Chairman in welcoming our witnesses, and I look forward to the testimony. 

Mr. Chairman, I thank you, and I yield back. 

Mr. FRANKS. Thank you, Mr. Nadler. 

I now yield to the distinguished Chairman of the full Committee, 

Mr. Smith, for his opening statement. 

Mr. SMITH. Thank you, Mr. Chairman. 

The foundation of our democracy rests on secure and fair elections. Unfortunately, voter fraud undermines the electoral process 

and can sway the ultimate outcome of elections. Illegal votes negate the votes of legal voters. 

Voter ID laws help ensure the integrity of our elections and protect the rights of lawful voters. So far, 16 States have photo ID requirements for casting a ballot. 

We must safeguard the integrity of our voting process in order 

to safeguard our democracy. But rather than support commonsense 

proposals to help protect our democratic process, the Justice Department’s Voting Section wastes taxpayer dollars in fighting the 

very laws that promote fair and accurate elections. 

Photo identification is part of everyday American life. Citizens 

are required to show a valid form of identification to open a bank 

account, cash a check, drive a car, or board a plane. If valid identification is required for these daily tasks, then why is it not required to exercise one of our most valuable democratic rights? 

Voter ID opponents insist that voter fraud is not a serious problem, 

but voters disagree. The majority of Americans overwhelmingly 

support laws that require people to show photo identification before 

being allowed to vote. 

A recent Rasmussen poll survey found that 64 percent of likely 

U.S. voters agree that voter fraud is a serious problem, while just 

24 percent disagree, and 73 percent of respondents believe that a 

photo ID requirement before voting does not result in any discrimination. In fact, the Supreme Court in a 6-3 decision authored by 

liberal Justice John Paul Stevens rejected the argument that voter 

ID laws are discriminatory when it upheld Indiana’s strict voter ID 

law in 2008. 

In upholding the Indiana law, the Court cited flagrant historical 

examples of in-person voter fraud as well as the State’s administrative interest in carefully identifying who has voted. The Court also 

noted the State may have a legitimate interest in requiring photo 

ID for voters even without evidence of widespread fraud. The 

Court’s opinion quoted the report from the bipartisan Commission 

on Federal Election Reform co-chaired by former President Jimmy 

Carter that stated, ‘‘The electoral system cannot inspire public confidence if no safeguards exist to deter or detect fraud or to confirm 

the identity of voters.’’ 

6 

Most forms of voter fraud are difficult to detect, especially if 

photo IDs are not required. That same Commission report found 

voter fraud does occur and could affect the outcome in a close election. 

Having lost in both the Federal courts and the Court of public 

opinion, you would think voter ID opponents would give up. But 

just last month the Obama administration announced it will challenge the Texas voter ID law which is based on the Indiana law 

and was overwhelmingly supported by Texas voters. The Justice 

Department also seeks to challenge a similar law in South Carolina. 

The Department claims that the laws are discriminatory because 

minorities are less likely to have the required IDs, but a closer look 

at the Department’s math shows that their arguments simply don’t 

add up. For example, in South Carolina, 90 percent of Blacks have 

photo IDs, compared to 92 percent of Whites, so the Justice Department seeks to override a State law because of a difference of less 

than 2 percent. 

The Department’s case against the Texas voter ID law is equally 

troubling. Assistant Attorney General for the Civil Rights Division, 

Tom Perez, claims that the disparity between photo ID possession 

by Whites and Hispanics is statistically significant. Data shows 

that 95 percent of White voters have photo ID, as do 93 percent 

of Hispanic voters. Once again, the disparity is only 2 percentage 

points. Even that slight difference may be within the margin of 

error since Texas, in gathering some of the data, had to guess who 

is Hispanic based on surname. 

Ironically, the Justice Department’s own policy requires visitors 

to show valid photo ID before being allowed to enter its own buildings. If it takes valid identification to walk the halls of the Justice 

Department, maybe it should take at least that much to determine 

the outcome of our elections. 

If the Department wants to protect the rights of voters, they 

should work to ensure that States remove ineligible voters from 

their rolls as required by Federal law. The rights of all voters 

should be protected and respected by the Obama administration. 

The misplaced priorities of the Department of Justice wastes taxpayers’ money and does little to protect the rights of legal voters. 

Thank you, Mr. Chairman. I yield back. 

Mr. FRANKS. Thank you, Mr. Chairman. 

Without objection, other Members’ opening statements will be 

made part of the record. 

Mr. CONYERS. Pardon me, Mr. Chairman. 

Mr. FRANKS. Please forgive me. The distinguished former Chairman is recognized. 

You snuck up on me, Mr. Chairman. 

Mr. CONYERS. Thank you, Chairman Franks. 

There is a bit of irony connected with this hearing, isn’t there? 

Here we have the great work of Dr. Martin Luther King in terms 

of breaking down the segregation in voting that was historic in the 

South. We have the incident of the Edmund Pettus Bridge in which 

people were marching to get the rights to vote and were brutally 

oppressed by law enforcement and other citizens that were not prepared to open up voting for everybody. 

7 

Here, 3 years ago, we elected the first African American President as the 44th leader of this great country. Here we have an Attorney General Eric Holder, another distinguished lawyer of color, 

in charge of the Department of Justice. And now we come this 

morning to discuss how the Department of Justice is encouraging 

voter wrongs instead of continuing to work on making this a more 

open society. 

I am the only Member here that was present when the Voting 

Rights Act of 1965, which came out of this Committee, became law 

and has been continued on three different occasions. And it seems 

to me, based on the very complete contrast between Ranking Member Jerrold Nadler’s comments and those of the Chairman, it seems 

to me that there ought to be room in this great Committee of the 

House Judiciary, which I joined when Emanuel Celler of New York 

was the chair, that we ought to be able to, without the formality 

of witnesses, try to get some of the facts straightened out here. 

This is not complex, and I propose that myself and Jerrold Nadler, 

Bobby Scott, and Mr. Quigley join with the Chairman of the Subcommittee and the Chairman of the full Committee to try to get 

some of these matters straight. 

Now, share with me the fact that during the previous Administration the Department of Justice utilized its infrastructure and politicized the hiring process that has come out in our own hearings 

here, overriding the objections of career attorneys in voting rights 

cases, firing United States Attorneys for not pushing politically motivated prosecutions, and pressuring States to purge voting rolls. 

We also found out that since the days of the former acting head 

of the Civil Rights Division, Brad Schlozman, who the Office of Professional Responsibility and the Office of the Inspector General 

both found ‘‘violated Federal law in order to stock the division with 

his political equals’’ the integrity, thank goodness, of the Civil 

Rights Division has since been restored. 

So what we need to do now is examine the unprecedented array 

of State restrictions on the right to vote. Thirty-four States have 

introduced legislation, fifteen State laws have been enacted that seriously impact voting in terms of limiting voting by requiring the 

presentation of photo ID, excluding common forms of identification, 

declaring proof of citizenship as a condition to vote, limiting or 

eliminating early voting opportunities, and stalling or eliminating 

registration efforts. 

So, Mr. Chairman, I think we have a huge responsibility on our 

hands; and I urge all of the Committee—all of the Members of the 

Committee on both sides of the aisle to join us in seeking the truth 

about what brings us here today. 

I thank the Chairman for the time. 

Mr. FRANKS. I thank the gentleman and apologize for overlooking 

him. 

So, without objection, other opening statements by other Members will be made part of the record. 

I would like now to introduce our witnesses. 

Cleta Mitchell is a partner at Foley & Lardner, LLP, and a member of the firm’s political law practice. Ms. Mitchell is also the 

president of the Republican National Lawyers Association. She has 

more than 30 years experience in law politics and public policy, 

8 

even though she is only 35. She advises candidates, campaigns, and 

individuals on State and Federal campaign finance law and election law. 

Mr. Eric Eversole is the Executive Director of the Military Voter 

Protection Project and formerly served as litigation attorney in the 

Department of Justice’s Voting Section. He is a Navy JAG officer 

who served on active duty from 1999 until 2001. Eric is an expert 

on military voting issues and has testified on numerous occasions 

before Congress. 

Wendy Weiser is the Director of the Democracy Program at NYU 

School of Law. She has authored a number of reports and papers 

on election reform and has provided legislative drafting assistance 

to Federal and State legislators and administrators across the 

country. She is also an adjunct professor of law at NYU School of 

Law. Professor Weiser is a graduate of the Yale Law School. 

J. Christian Adams is a former Justice Department Voting 

Rights Attorney and runs the online blog Election Law Center. He 

served 5 years as an attorney in the Voting Section of the Justice 

Department where he brought a wide range of election cases to protect racial minorities. Prior to that, he served as General Counsel 

to the South Carolina Secretary of State. 

I would just thank all of the witnesses for appearing before us 

today. 

Each of the witnesses’ written statements, their entire written 

statements, will be entered into the record; and I would ask each 

of you to summarize his or her testimony in 5 minutes or less. 

To help you stay within that time, there is a timing light on your 

table. When the light switches from green to yellow, you will have 

1 minute to conclude your testimony. When it turns red, it signals 

that the witness’s 5 minutes have expired. 

Before I recognize the witnesses, it is the tradition of this Subcommittee that they be sworn in, so if you would please stand. 

[Witnesses sworn.] 

Mr. FRANKS. Thank you. Be seated, please. 

Also, the witnesses, I would just warn you to please turn your 

microphone on before beginning to speak. 

I would now recognize our first witness, Ms. Mitchell, for 5 minutes. 

TESTIMONY OF CLETA MITCHELL, PARTNER, 

FOLEY & LARDNER 

Ms. MITCHELL. Thank you, Mr. Chairman. 

Mr. Chairman, Lamar Smith as well, Mr. Chairman, Mr. Conyers, thank you so much for hosting this hearing and holding this 

hearing, because it is an important issue. I have been before this 

Committee and this Subcommittee previously to talk about the 

issues that are pressing in this country with regard to voter integrity and open, fair, and honest elections. 

The Republican National Lawyers Association is an organization 

of attorneys nationwide who are dedicated to fair, open, and honest 

elections, and I am proud and honored to serve as its President. 

We are here today to talk about the fact that we have an Attorney General who, rather than acting as the chief law enforcement 

officer of this country who is responsible for enforcing more than 

9 

15 Federal laws that make various types of activity criminal activity in the area of elections, that rather than spending his time and 

the time of his Department of Justice working to ensure that our 

elections are indeed free of fraud and free of criminal activity, instead, this Attorney General is doing everything in his power to 

fight the State authorities who are trying to ensure the integrity 

of our elections. 

He has become, instead of being the chief law enforcement officer, a partisan political operative, carrying water for the Democratic National Committee, liberal interest groups, and the Obama 

reelection campaign. He attacks voter identification laws without 

regard to the law or the facts. 

It is amazing to me that this is yet another example where the 

Attorney General has decided that he is the arbiter of what the law 

is, not what the Supreme Court has said but what Attorney General Eric Holder and his political allies believe to be the law, and 

has ignored the fact that the United States Supreme Court has indeed ruled in the Crawford case that has been referenced earlier 

here this morning that, despite what the chairman of the Democratic National Committee and the Department of Justice Attorney 

General Eric Holder say, that voter ID laws are not a poll tax. 

The Supreme Court rejected that argument in the Crawford case, 

and indeed the Court said that a voter identification requirement 

is not a poll tax because there is a balance. And because the purpose of a voter identification, a photo identification, is to ensure 

and protect the integrity of the election, that whatever burden may 

exist is offset by the need to protect the integrity of the elections. 

The trial court in that case—the Federal trial court had found 

that, notwithstanding the arguments put forward by the plaintiffs 

that there were hundreds of thousands of people without photo 

identification, an argument that persists to this day but which is 

not true, in fact that fewer than 1 percent—this was a finding by 

the Federal trial Court in the Crawford case, that fewer than 1 percent of Indiana voters would not have a photo ID. And the court 

found that since 99 percent of the voters would in fact have photo 

identification that it was not an impermissible burden to require 

that a photo ID be presented. 

The Attorney General further ignores the facts, and I could go 

on and on about the factual evidence that the Attorney General ignores, but let me give you a case study of just 2 weeks ago in Tennessee. 

In Tennessee 2 weeks ago, there was an election which required, 

a Statewide election, where photo identification is required. There 

were 645,775 votes cast in that election. Of those people who appeared to vote, there were 266 who did not have photo ID or who 

did not present photo ID, and that included some people who came 

protesting the new photo ID requirement. 

Those people under the law had the right to go—they were able 

to cast ballots provisionally, were able to go and retrieve photo ID 

and present it within a period of time. One hundred and twelve of 

those 266 people did so and returned with photo ID, and their 

votes were counted. So out of 645,775 votes cast, there were 154 

people who, for whatever reason, either did not return, and their 

votes were not counted. That is.023 percent of those who particiVerDate Aug 31 2005 14:45 Aug 07, 2012 Jkt 000000 PO 00000 Frm 00013 Fmt 6633 Sfmt 6601 H:\WORK\CONST\041812\73859.000 HJUD1 PsN: DOUGA
10 

pated in the election. It seems to me that is well within the finding 

of the Indiana Federal trial judge in the case that was upheld by 

the U.S. Supreme Court. 

The Attorney General further mystifyingly decided last week to 

quote the Republican National Lawyers Association as his source 

for the fact that no voter fraud exists. If Chairman Nadler will remember, when I last testified before this Committee in 2008 I 

asked and the Chairman allowed at the time for me to put into the 

record evidence of voter fraud cases from across the country. And 

since that time the Republican National Lawyers Association has 

on its Web site a voter fraud page where we post cases of voter 

fraud. I have attached that as part of the record, nine pages, 44 

States. It is not intended to be exhaustive, but just since February 

the RNLA has written about 11 cases of voter fraud, all of which 

have been brought not by the Department of Justice but by State 

and local authorities. 

So the point is that I don’t know why the Attorney General 

would cite RNLA as the source of no voter fraud. I guess believing 

is seeing. 

I would urge this Committee to please continue its oversight, to 

ask questions. I agree with Chairman Conyers, ask some questions 

of the Department of Justice and what it is doing to publicize its 

intent to prosecute election crimes in this election. 

I will just close with this one comment, a statement which is 

from the manual, the Department of Justice Manual on Federal 

Election Crimes Prosecution. And the manual states that in the 

United States, as in other democratic societies, it is through the 

ballot box that the will of the people is translated into government 

that serves rather than oppresses. Our constitutional system of 

representative government only works when the worth of the honest ballots is not diluted by invalid ballots procured by corruption. 

The RNLA couldn’t agree more. We stand ready to assist this 

Committee in its oversight of the Department of Justice to ensure 

the protection and the integrity of our elections. 

Thank you, Mr. Chairman. 

[The prepared statement of Ms. Mitchell follows:] 

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ATTACHMENT 


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Mr. FRANKS. Thank you, Ms. Mitchell. 

I would remind the panelists there that we would like to keep 

you within the 5-minute timeframe, if possible. 

I would now recognize Mr. Eversole for 5 minutes. 

TESTIMONY OF M. ERIC EVERSOLE, DIRECTOR, 

MILITARY VOTING PROJECT 

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garding the enforcement of military voter rights and in particular 

the enforcement of those rights by the Voting Section of the Department of Justice. 

As many of the Committee Members know, in 2009 Congress 

passed the most sweeping military voter reform in over 20 years. 

That new law, the MOVE Act, promised to usher in a new era for 

military voters, one that would provide those voters with enough 

time to receive and return their ballots so that they would be 

counted on election day. 

But a law, no matter how well written, cannot deliver on its 

promise if the agency responsible for enforcing that law fails to do 

so or fails to do so in a timely or an effective manner. The agency 

with that responsibility, the Voting Section of the Department of 

Justice, has failed to uphold its end of the bargain. 

From day one after the MOVE Act was passed in 2009, the Voting Section showed an unwillingness to aggressively enforce the 

MOVE Act, to conduct meaningful investigations, or to bring actions in a timely manner. These failures were well-documented in 

2010, and they continue to occur in 2012. The Voting Section’s only 

response to these failures, one that rings hollow, is that it vigorously enforces the law because it brought 14 cases or reached 

agreements in 14 States to protect military voting rights. 

But numbers alone mean nothing. The questions that must be 

asked and answered is whether the military voter rights were actually protected in those agreements, were the cases brought in a 

timely manner, and did the agreements help ensure that service 

members would be able to have their voices heard on election day. 

On each count, the Voting Section failed in its responsibility. 

The first thing I would say about these 14 agreements is that at 

least five of them aren’t agreements at all. Five of the cases are 

actually letters of compliance written from the State or the Territory saying that they got the Department of Justice’s letter about 

complying with the law and that they agree to comply with the 

law. But that is not an agreement. No matter how you slice it, it 

is a smoke screen. 

But even in the cases where there weren’t agreement, the other 

nine cases, it is important to look at the dates of those agreements. 

All of them are signed just a few weeks before the election, and 

when you settle a military voter case just a few weeks before the 

election when our service members are in all four corners of the 

world, you don’t provide them with sufficient time and sufficient 

remedies to make sure that their rights are protected when violations occur. Justice delayed is justice denied. 

But, more importantly, if you look at each of these agreements, 

many of these agreements do not fully protect our men and women 

in uniform. Take the cases against New York and Illinois. In both 

States the Voting Section allowed local jurisdictions to mail absentee ballots to service members in overseas locations less than 30 

days before the election, even though they are well aware of the 

fact that mail to forward deployed locations can take 30 or more 

days. 

The flawed nature of these agreements, especially in New York, 

became very clear after the election. Of the more than 5,000 military ballots that were turned by New York in 2010, 30 percent of 

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those ballots were rejected in New York, notwithstanding the settlement agreement reached by the Department of Justice. 

Finally, and it can’t be overemphasized, all of these agreements 

fail to address the source of the problem. That is, local election officials have not or will not comply with the law. When local election 

officials like the ones recently in Wisconsin fail to send out ballots 

or fail to answer simple questions about whether they mailed out 

ballots and there are no consequences for that refusal to comply 

with simple law, then those violations will continue to occur time 

and again. 

Ultimately, for our men and women in uniform to have any hope 

of having their voices heard on election day, then the Voting Section has to aggressively enforce the MOVE Act, has to do so in a 

timely manner, and has to ensure that the remedies fully protect 

their voting rights. 

Thanks again for the opportunity to testify today, and I look forward to any questions that the Committee Members have. Thank 

you. 

[The prepared statement of Mr. Eversole follows:] 

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Mr. FRANKS. And I thank you, Mr. Eversole. 

Professor Weiser, you are recognized for 5 minutes. 


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TESTIMONY OF WENDY WEISER, DIRECTOR OF DEMOCRACY 

PROGRAM, NEW YORK UNIVERSITY SCHOOL OF LAW 

Ms. WEISER. Thank you, Mr. Chairman and Members of the Subcommittee, for this opportunity to testify. 

This is a critical time for voting rights in America, and the Department of Justice has a critical role to play. I will make three 

points today. 

First, as Chairman Conyers noted, the past 2 years have seen a 

massive wave of new State laws making it harder for eligible 

American citizens to vote. Overall, 22 new State laws and two executive actions have been put in place in 17 States restricting voting. 

These range from requiring certain forms of photo identification to 

vote, to making it harder to register to vote, to cutting back on 

early voting, among other things. This is the biggest setback in voting rights in decades and an abrupt reversal of the longstanding 

trend in American history to expand access to the franchise. Millions will be affected, and some will be especially hard hit: minorities, the poor, people with disabilities, students and older Americans. 

Second, the Department of Justice has a critical role to play with 

respect to these new laws. Under the Voting Rights Act, States 

with a history of discriminating in voting must get pre-clearance 

from the Department or a Federal court before implementing 

changes to their voting laws. States have the burden to show that 

their new laws will not discriminate against minorities, and the 

Department must review the evidence and make a determination 

as to whether States have met that burden. And that is exactly 

what the Department has been doing with respect to these new 

voting restrictions: applying the law, nothing more, nothing less. 

It has appropriately found that Florida, Texas, and South Carolina have not met their burden of showing that their new laws 

won’t discriminate against minorities. And the Brennan Center is 

in fact involved in those matters. The new law in Florida has made 

it so hard for civic groups to register fellow citizens to vote that the 

League of Women Voters and groups across the State have shut 

down their voter registration drives. And this especially hurts minorities, who register at voter registration drives at twice the rate 

of White citizens. Florida also cut back on Sunday early voting, 

which was used especially by African American and Hispanic 

churches. 

New strict photo ID laws in both Texas and South Carolina also 

disproportionately harm minorities. Texas’ own data show that as 

many as 795,000 registered voters—that is not just eligible but registered voters—do not have State photo IDs, and Latino citizens 

are between 46 percent and 120 percent more likely than White 

voters to lack those IDs. 

A quick word on voter ID laws. There may be disagreements 

about voter ID as a policy matter, but everyone should agree that 

voter ID laws should not gratuitously disenfranchise voters. Unfortunately, that is what many of the new laws we are seeing this 

year do. They are far more restrictive than the ID laws of the past, 

limiting the forms of ID that will be accepted, cherry-picking the 

IDs that certain groups may not have, and eliminating exemptions 

and fail-safe protections for voters who don’t have IDs. 

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These aren’t reasonable ID laws. They require IDs that 11 percent of eligible Americans don’t have, and those who participate in 

primaries are disproportionately among those who do have those 

IDs. And these laws don’t have a way for people without IDs to 

verify their identities and to vote, as Virginia Governor Bob 

McDonnell just complained when he sent back a bill in that State 

last week. 

I should add that Section 5 of the Voting Rights Act is not the 

only law that these new restrictions may run afoul of. Just yesterday, for example, the Ninth Circuit Court of Appeals ruled 9-2 that 

a law in Arizona that requires proof of citizenship to register to 

vote violates the Federal Motor Voter Law. 

Third, in contrast to these controversial new voting laws, there 

is a commonsense bipartisan solution that would actually improve 

the integrity of our elections and public confidence: modernizing 

our ramshackle voter registration system. As Mr. Adams noted in 

his written testimony, the voter rolls are a mess. A Pew Study recently found that one in four eligible Americans are not registered 

to vote and that one in eight voter registration records have serious 

errors. 

Better enforcement of the NVRA, including Section 7 and Section 

5, would certainly help, but the real problem is that in most of the 

country we still rely on an antiquated, error-prone, paper-based 

voter registration system. Congress can help the States bring our 

voting system into the 21st century by passing a law to modernize 

voter registration across the country. This would add millions of eligible voters to the rolls, increase accuracy, reduce opportunities for 

fraud and abuse, and cut costs. It is a solution everyone can get 

behind. 

Thank you very much. 

[The prepared statement of Ms. Weiser follows:] 

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Mr. FRANKS. Thank you, Professor Weiser. 

Mr. Adams, you are recognized for 5 minutes, sir. 


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TESTIMONY OF J. CHRISTIAN ADAMS, ATTORNEY, 

ELECTION LAW CENTER, PLLC 

Mr. ADAMS. Thank you. 

Chairman Franks, Ranking Member Nadler, and Members of the 

Committee, thank you for this opportunity to testify. 

Free and fair elections are the cornerstones of our constitutional 

Republic. The Department of Justice has a long and admirable role 

in securing the right to vote free from racial discrimination. Ahead 

of the November, 2012, election, I can report on some encouraging 

developments regarding the Justice Department’s enforcement of 

voting laws as well as several discouraging ones. 

An area where the Justice Department deserves some praise is 

in the relatively smooth redistricting process after the 2010 census. 

Some of this is attributable, of course, to States going to court for 

approval instead of only to the Voting Section. This was a calculated strategy by the States. Because in the 1990 redistricting 

cycle, for example, the Justice Department was forced to pay out 

nearly $2 million in court-imposed sanctions for lawyer misconduct 

during the redistricting process. Some of the lawyers and staff who 

worked on those cases which were the subject of sanctions are still 

at the Justice Department, and States have understandably sought 

to bypass the administrative process and go straight to Federal 

court. 

Unfortunately, there is some troubling behavior from the Justice 

Department. First, let me note that it is a false perception that the 

Obama administration has more vigorously protected minority voting rights than the Bush administration. The numbers prove otherwise. The current Justice Department is woefully lacking in enforcing Section 2 of the Voting Rights Act. Section 2 of the Act is the 

broad prohibition on racial discrimination in elections. 

While the Bush administration vigorously enforced Section 2, enforcement under the Obama administration has flatlined. In fact, 

the current Administration has failed to initiate a single Section 2 

investigation which resulted in an enforcement action since taking 

office. 

Loud critics of the Bush administration claim that enforcement 

of Section 2 during that time was lacking, when in truth it was vigorous. The Bush administration filed multiple Section 2 cases to 

protect national racial minorities. In fact, if you include all Section 

2 cases to protect national racial minorities, the Bush administration filed 14 cases. Again, the Obama administration has filed exactly one, and that is a case against Lake Park, Florida, a matter 

which I brought which was launched during the Bush administration and filed in March of 2009. 

In response to criticism for failing to enforce Section 2, this Justice Department has recently adopted a curious new public policy 

position saying that they have initiated a record number of Section 

2 investigations. This is in fact a public relations sham, and I describe how in my written testimony. 

These investigations do not even reach the preliminary point of 

whether it is possible to draw a minority-majority district in most 

cases. Numbers can’t lie. Not a single case has been filed by the 

Obama administration since the Lake Park case in March of 2009, 

a case which I brought and the Bush administration started. 

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A couple of other points are important about voter ID to understand. The Department’s use of Section 5 to block election integrity 

measures has now taken place in numerous examples. The first example was in 2009 when a Section 5 objection was entered to stop 

Georgia’s law that required that only citizens be registering to vote. 

The most recent example, of course, is in South Carolina and Texas 

with voter ID. 

Under the interpretation by this Justice Department, unless the 

States can prove an absolute absence of the slightest trace of disparate statistical impact, then the DOJ will object to voter IDs in 

covered States. Mississippi and Virginia should take careful note. 

For example, in the South Carolina voter ID law, 90 percent of African Americans were shown to have photo ID and 91.6 percent of 

Whites. 

Justice refused to consider as determinative the practical safe 

harbors contained in the voter ID statutes. In South Carolina, for 

example, the State would provide free rides to State offices to obtain free voter ID. Voters would even be allowed to cast a ballot 

on Election Day if they didn’t have ID if they filled out an affidavit 

saying they had a reasonable impediment to obtaining voter ID and 

swearing to their identity. The burden was on the State to prove 

the affidavit was false. 

I believe it is unlikely that the courts will permit such an unreasonable interpretation of Section 5 of the Voting Rights Act. If the 

courts do, however, then Congress must step in and examine 

whether Section 5 should be amended so the Justice Department 

cannot in these circumstances block implementation of State election laws designed to ensure election integrity. 

Thank you very much. 

[The prepared statement of Mr. Adams follows:] 

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Mr. FRANKS. Thank you, Mr. Adams. 

I want to thank all of you for your testimony, and I will now 

begin the questioning by recognizing myself for 5 minutes. 

Mr. Eversole, there are approximately 2 million military voters; 

and hundreds of thousands of those, of course, have been deployed 

throughout combat zones across the world. And as they risk spilling their blood to defend their country, it is clear to me that their 


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Justice Department is failing to ensure that they can exercise their 

right to vote. 

In 2010, only 4.6 percent of military voters were able to cast an 

absentee ballot that counted, and only 5.5 percent could do so in 

2006. The total military voter turnout for 2010 was just 11.6 percent. By contrast, the national voter participation rate in 2010 was 

41.6 percent. 

So, Mr. Eversole, how is the Department of Justice failing to ensure the deployed members of the military can cast their legal vote 

for their commander in chief? 

Mr. EVERSOLE. Thank you, Mr. Chairman. 

At the very beginning, they have to make sure to conduct timely 

investigations when those ballots are supposed to go out, 45 days 

before the election. You can’t wait one or 2 weeks after that 45-day 

deadline to start your investigation and then take two or three 

more weeks to conduct the investigation and file an action, like 

they did a couple months ago or a month ago in Alabama 18 days 

before the election. When you settle cases 18 days before the election, that timeframe provides very, very limited remedies, if any at 

all, other than adding some days, and it prevents service members, 

especially those serving on the front lines, the ones who need the 

most time, an opportunity to get their ballots. So that is where it 

starts. 

Then once you have a case you have to make sure that your remedies actually protect the service members. The New York case was 

atrocious in 2010 where 30 percent of the service members, notwithstanding a Department settlement agreement, were still 

disenfranchised under the Department’s agreement. Those voters 

were abandoned, and it has to do better on that end as well. 

Mr. FRANKS. Thank you, Mr. Eversole. It does seem to me like 

one bipartisan conclusion should be that those who are dying to 

protect this country and this Republic should see their constitutional right to vote protected by this Republic. 

Let me, if I could, go to you, Ms. Mitchell. You know, you formulated a pretty compelling argument the DOJ is aggressively trying 

to block State efforts to protect against election fraud, and it reminds me of DOJ’s efforts to block State laws cracking down on illegal immigration, in a sense, because it almost seems that, instead 

of enforcing the law without fear or favor, the Obama Justice Department is spending a lot of time making sure laws it doesn’t like 

do not get enforced by anyone. And the recent Rasmussen polls 

show that the overwhelming majority of Americans support voter 

ID laws as necessary and nondiscriminatory. Why do you think 

DOJ is insisting on fighting the American people on this issue? 

Ms. MITCHELL. Well, Mr. Chairman, that is the $64,000 question. 

I don’t understand how it is possible for anyone to object to the 

simple practice of showing identification to demonstrate that you 

are who you say you are when you go vote. That polling place that 

we saw on that videotape is where I vote. It is across the street 

from where I live. 

I mean, I got from the District of Columbia my new voter registration card. It is on a piece of typing paper. One of our RNLA 

members lives in the District of Columbia, and she got five of them, 

five different names sent to her apartment. Now, if she were not 

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an honest person, she could just walk in and pretend to be each 

one of those people. 

And what mystifies me is why anybody would oppose simple procedures that will protect the integrity of our election. And what is 

troubling is that the Justice Department, rather than taking steps 

as a law enforcement entity, an agency, and as our chief law enforcement officer Eric Holder should be out among the public saying we are going to publicize what their election crimes manual 

says, we are going to prosecute vigorously election crimes, they are 

not doing any of that. 

And it just strikes me that when you have the Pew Charitable 

Trust report to which Dr. Weiser referred where 24 million—one of 

every eight—voter registrations is either—it says either no longer 

valid or significantly inaccurate, where you have 1.8 million deceased individuals listed as voters, you have 2.75 million people 

who have registered in more than one State, the simple act of producing an ID to say that you are an authentic, eligible voter under 

the law seems to me completely reasonable, and that is what the 

law of the land is. The Supreme Court has upheld that; and our 

Attorney General, our Justice Department should be enforcing 

that. 

Mr. FRANKS. Thank you, Ms. Mitchell. 

And I would now recognize the distinguished Ranking Member, 

Mr. Nadler, for 5 minutes. 

Mr. NADLER. Thank you. 

First, I never want to impugn the integrity of our witnesses, so 

I will presume that Mr. Eversole was not aware of what I am about 

to say. Because he told us that the Justice Department refused to 

enforce the law for military ballots in New York and let New York 

get away with 30 days when that wasn’t enough time. 

The fact is the Justice Department sued the State of New York, 

resulting in a Federal court decision that ordered the primary in 

New York moved from September to June in order to enforce the 

45-day law. It was the Republican majority in the State Senate 

that refused to move the State primary because Congress only has 

jurisdiction over Federal elections. 

So that we now have a primary in June for Congress and for U.S. 

Senate in order to comply with the 45-day law because the Justice 

Department brought suit, and the State lost in court, in Federal 

court, but we have a September primary for State elections because 

the Republican majority in the State, apparently not caring about 

enforcing the law on 45 days, refused to move the State primary 

to match the Federal primary. So we are going to waste $50 million. 

So don’t tell me or this Committee or anybody else that the—at 

least in New York, that the Federal—the Justice Department 

hasn’t enforced that provision. They brought suit against the State 

of New York, they won the lawsuit, and the Federal court ordered 

the primary moved from September to June for that reason. And 

since I am running in that June primary, I know the facts. 

Thank you. 

Ms. Weiser—Professor Weiser, I am sorry—no, that wasn’t a 

question. It was a statement of fact. I will give him a question to 

answer if none of this will count toward the 5 minutes. 

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Mr. FRANKS. You have got it. 

Mr. NADLER. Thank you. Mr. Eversole? 

Mr. EVERSOLE. Well, you know, 1,700 ballots were rejected in 

New York, so they brought an action in 2010. 1,700—more than 

1,700, I think it was 1,789 military voters were denied their ballot, 

notwithstanding the settlement agreement that the Department of 

Justice brought. Those ballots were thrown in the trash. 

Mr. NADLER. In your testimony, you didn’t bother mentioning the 

Justice Department then sued the State of New York. 

Mr. EVERSOLE. You are right. They did recently sue the State of 

New York. That is a factual matter. But, again, they allowed for 

a remedy here that does not require—— 

Mr. NADLER. So the remedy—so the truth is, then—so the truth 

would be, I think you and I would agree, although I don’t know the 

facts about the first step, but assuming what you are saying is 

true, the facts would be that for the 2010 election they did not act 

adequately, but they corrected it for the 2012 election, brought suit, 

did not reach a consent decree, won the lawsuit, and moved—and 

the court ordered the primary moved. You didn’t bother mentioning 

this to the Committee. 

Mr. EVERSOLE. Well, and that is a fair point. But the point I 

would also make that I think needs to be made very clearly is that 

they did not protect those military voters in the State race, and 

there is a 2010 decision in the district of Maryland that says that 

when you deprive a service member of their State rights, their 

State right to vote, that that is a constitutional violation. 

Mr. NADLER. Well, except that the fact is that they—that the 

Justice Department, I believe, argued for that in the Federal court, 

and the Federal court ruled otherwise. The Federal court said that 

they had no jurisdiction to order the State to move the State primary. 

Mr. EVERSOLE. Okay. 

Mr. FRANKS. Mr. Nadler, you are back on the clock here. 

Mr. NADLER. Thank you. 

Ms. Weiser. 

Mr. FRANKS. He did mention in his testimony exactly as you 

have said. 

Mr. NADLER. I am sorry? 

Mr. FRANKS. It is in his written testimony exactly as you have 

said. 

Mr. NADLER. Okay. 

Professor Weiser, Ms. Mitchell said that the Attorney General’s 

cases against voter ID laws lack merit on the law. Is that correct? 

Ms. WEISER. Absolutely not. 

I should start by noting that the Crawford case that has been 

mentioned a number of times has no bearing on the Voting Rights 

Act cases that the Department is currently involved in. That was 

a constitutional action against Indiana’s voter ID law before the 

law had ever been put in place, and it did not involve allegations 

of discrimination on the basis of race. 

Right now, under the Voting Rights Act, what the Department 

is required to look at is whether or not the States have met their 

burden of showing that these laws will not harm minorities. The 

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ties will, in fact, be disproportionately harmed by these laws and 

that tens and in some cases hundreds of thousands of minority voters who are already registered to vote won’t be able to vote under 

the laws in place. 

Mr. NADLER. Now, Ms. Weiser, there is, I believe, in Texas or in 

some States the voter ID laws prevent use of the State-issued student ID for college that is necessary to get the in-State tuition rate. 

So, in other words, to protect their own fisc I presume that they 

are pretty serious about making sure they give a State ID card and 

a State University ID card only to a State resident. 

Ms. WEISER. Uh-huh. 

Mr. NADLER. And this is specifically precluded from being used 

as a voter ID, but gun-carrying registrations are allowed. Is there 

any justification in terms of accuracy? In other words, is it harder 

to get a gun card than—do you have to prove your residency more 

to get a gun registration than you do to get an in-State student 

voter? Is there any possible justification for this, other than the 

fact you don’t like student voters and you like hunters? 

Ms. WEISER. There are certainly different requirements for obtaining student IDs and for obtaining the concealed handgun licenses. Both of them, though, are fairly rigorous, and both of them 

require—look at a variety of pieces of evidence. So there really is 

no justification for this kind of cherry-picking. 

Most earlier photo ID laws that have been passed in the past recognize all forms of State-issued photo IDs, including student— 

State-issued student photo IDs, State-issued employment IDs. 

These kind of IDs are now being excluded by the laws that we are 

seeing this year and for no good reason. 

Mr. NADLER. Has there any reason been stated? 

Ms. WEISER. I am not aware of any good reason that has been 

stated. 

Mr. NADLER. Thank you. 

Could you finally—before my time runs out, could you elaborate 

on how voter ID laws disenfranchise certain classes of voters? 

Ms. WEISER. Yes. Pardon me? 

Mr. NADLER. Could you elaborate on how these voter ID laws disenfranchise certain classes of voters? 

Ms. WEISER. Certainly. 

The evidence is and all—study after study shows that minorities, 

young people, low-income people are far less likely to have the 

kinds of State-issued photo IDs required by these laws. This has 

been confirmed repeatedly. And even in the few elections where 

photo ID laws have already been put in place, there have been a 

number of people who have been denied the right to vote, some 

even mentioned by Ms. Mitchell today. But there have been thousands of provisional ballots cast across the country by people who 

did not have a photo ID at the polls and countless more people who 

didn’t show up because they couldn’t meet those requirements, and 

I would be certainly happy to provide more information to the Committee on that. 

Mr. NADLER. Thank you. 

Mr. FRANKS. I now recognize Mr. King for 5 minutes. 

Mr. KING. Thank you, Mr. Chairman. 

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I apologize, I slipped in here a little bit late after you had opened 

your opening remarks, and I missed that video, and I would ask 

if they could run that video again, at least for my benefit. 

Mr. FRANKS. Absolutely. 

Mr. CONYERS. Mr. Chairman, I will not object. 

Mr. FRANKS. The Chairman appreciates that. 

It is the gentleman’s time, I believe, anyway. 

[Played video] 

Mr. KING. Thank you, Mr. Chairman. I thank staff for queuing 

that up for me again. 

I am shocked that the Attorney General isn’t shocked. I am 

shocked that the Attorney General hasn’t offered a response to this 

in a meaningful way. 

I sit in this Committee, and I have a friendly relationship with 

the former Chairman of the Judiciary Committee. And I remember 

and he will remember me presenting an acorn to him about 2007 

asking for hearings on ACORN, and we had a good discussion on 

that. We had private meetings working that to try to get that done. 

I remember the gentleman from New York, Mr. Nadler, say before this Committee that he thought it would be a good idea to investigate ACORN and walk that back some subsequent to that 

time. But it would have been a good time to investigate ACORN. 

It took a James O’Keefe to get this ACORN issue brought before 

America, and I carry this acorn in my pocket every day to remember what happens to the foundation of American liberty when you 

have corrupt elections, when you have elections and votes that are 

being disenfranchised by fraudulent votes. 

Mr. NADLER. Mr. Chairman, point of personal privilege. 

Mr. KING. We can suspend the clock. 

Mr. FRANKS. We will suspend. Please, sir. 

Mr. NADLER. I don’t believe I ever at any time said that I 

thought it would be a good idea to hold a hearing on ACORN. I did 

not, and I do not think that. I said at the time, if memory serves, 

that I would be happy to hold a hearing if credible evidence were 

developed that would justify that, but I never said it would be a 

good idea to hold a hearing on ACORN. 

Mr. FRANKS. Has the gentleman reconsidered since? 

Mr. NADLER. I have not. 

Mr. FRANKS. Okay, just wanted to make sure. 

Mr. KING. I think I am reclaiming my time that I didn’t lose, and 

I will acknowledge the clarity that is in the memory of Mr. Nadler. 

However, it gave me a high degree of optimism that we would do 

the investigation that we needed to do and should have done. And 

at that point if there had been a follow-through on the part of the 

then majority we would have had a bipartisan approach to cleaning 

up corruption in elections. 

We did not get that. Instead, we got a waived vote on the floor 

of the House and the Senate that shut off all funding to ACORN 

itself, and so that has to be a part of the thought process that we 

are looking at at corrupt elections. And they admitted to over 

400,000 false or fraudulent voter registrations, and there have been 

multiple prosecutions for fraud, as Ms. Mitchell said. And so I 

would turn my—— 

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Maybe I do have a couple other narratives quickly. And that is 

I went to Massachusetts for Scott Brown’s election, 3 days, and I 

went into the voting booth or into the voting area in a Vietnamese 

region in Boston. And there a fellow came up that did not speak 

English. They asked him who he was, and they couldn’t understand 

the name that he was giving. They turned the voting rolls around 

and said, which one are you? He picked one and went in and voted. 

That is just a snapshot of what goes on in the polls in America. 

We have had the witness or the Secretary of State of New Mexico 

before this Committee, and when I asked her—this is several years 

ago—when I asked her, if I am working the voting area in New 

Mexico and I am a registered voter and I decide I am going to vote 

when I leave my shift and someone walks in and says they are 

Steve King, can I stop them? Can I challenge them? Answer, no. 

So on down to Venezuela, if you want to go vote for Hugo Chavez, you have to show a picture ID. 

In my short time that I have remaining, I would like to direct 

my question to Ms. Mitchell. In the States you have listed in your 

testimony, the 10 States—it starts with Iowa and it ends with Florida—can you tell me whether it is the Attorney General or the Secretary of State that is moving these actions for voter fraud and 

what the political affiliation would be of those who are advocating 

cleaning up the voter fraud that is taking place in America? 

Ms. MITCHELL. No, Mr. King, I don’t know the partisan affiliation. But what I can tell you is that they are State and local authorities, both election officials and local law enforcement or district attorney. There is not a single instance where the Department 

of Justice is assisting in the prosecution. And that is one of the 

things that is disturbing to me, is that it is convenient, isn’t it, to 

announce that—to not prosecute these cases of voter fraud or election crimes and then to announce there are none. That to me is 

quite convenient, and I think that is what this Committee needs 

to ensure does not continue to happen. 

Mr. KING. I thank the witnesses, and I yield back the balance of 

my time. 

Mr. FRANKS. Thank you, Mr. King; and I will not overlook you 

this time, Mr. Conyers. You are recognized for 5 minutes. 

Mr. CONYERS. Thank you, Mr. Chairman. 

May I have unanimous consent to put in the Election Protection—You Have the Right to Vote document? 

Mr. FRANKS. Without objection. 

Mr. CONYERS. Thank you. 

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Mr. CONYERS. Now, we have a serious set of problems about voting, and we need to do as much about it as possible. But it is hard 

for me to imagine that the Attorney General of the United States, 

the chief law enforcement officer, Eric Holder, is somehow laying 

down on the job about getting people registered and able to vote 

more easily and to have—to ensure that their votes are counted. 

What we are in need of in this Committee is to have a hearing 

that examines the number of laws that significantly impact access 

to voting, and that is the presentation of voter ID, and I am going 


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to ask our attorney, Ms. Weiser, to expand on why some of these 

forms of identification are, in fact, restrictive. 

Second, that we don’t have any massive fraud problems. We have 

no record of people voting in great numbers who should not be voting. And then there is this old scheme going on in many States to 

eliminate early voting opportunities, same day registration, and 

even registering people to vote. I think these are the kind of problems that this Committee could do much more with, and I am 

going to ask the Chairman and the Ranking Member to join me 

and Chairman Smith in additional hearings in this area. 

I would like now to yield to our distinguished witness. 

Ms. WEISER. Thank you. Thank you, Mr. Chairman. 

As I noted, the ID laws that we have seen passed this year are 

far more restrictive than the ones we have seen in the past, and 

they ask for IDs that 11 percent of Americans, largely minorities, 

younger voters, older voters, people with disabilities, the poor, do 

not have. The fact that 73 percent of Americans might think this 

is a good idea is not surprising, when 89 percent of them actually 

have these forms of IDs, but we do not allocate—but this kind of 

support is not a good enough reason to exclude the 11 percent of 

people who do not have those IDs. That is not what constitutional 

rights or the Voting Rights Act are for. 

And I should note that, despite what has been said, the reason, 

the justification put forward for these laws is one that is actually 

nonexistent. The kind of voter fraud that these laws address, inperson impersonation fraud, has been shown investigation after investigation, study after study to be virtually nonexistent. An American is more likely to be hit by lightning than to commit this kind 

of voter fraud. 

And it is not because people have not been looking or because the 

Department of Justice has not made this enough of a priority. 

From 2002 through 2005, this was, in fact, a top priority of the Department of Justice to investigate and prosecute voter fraud. And 

what they came up with is 38 possible cases and only one that involved in-person impersonation fraud over hundreds of millions of 

votes cast. So this is really something that we already have good 

laws in place that prevent this. 

Mr. CONYERS. Professor, do you have any view of Crawford v. 

Marion that we need to clear up in this discussion before the Subcommittee today? 

Ms. WEISER. Well, certainly I should add that the Crawford case 

did not hold that voter ID laws generally are constitutional or that 

they are not discriminatory. What the Crawford court said is that 

the Indiana law on the record, the very limited record before it, before the law had ever been put in place, could not be invalidated 

on its face. The plaintiffs had to come back if they wanted to and 

actually show that the law, as applied in real life, would actually 

discriminate or would actually disenfranchise eligible voters before 

the Court would actually consider that kind of challenge. So it actually made no pronouncement about the legality under the Constitution or any other law of voter ID laws in particular as applied 

in the real world. 

Mr. CONYERS. Thank you. And thank you, Mr. Chairman. 

Mr. FRANKS. Thank you, Mr. Conyers. 

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I would now recognize Mr. Scott for 5 minutes. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Ms. Weiser, following up on that, there appears to be a difference 

in challenges whether you are a noncovered State in a constitutional challenge in free clearance under section 5. In the Crawford 

case that you have indicated there was no evidence of a discriminatory effect, and if you don’t know one way or the other, what happens to a constitutional challenge? 

Ms. WEISER. In a constitutional case, you need to actually 

prove—you need to prove the discriminatory intent. In the Voting 

Rights Act, the burden is on the State. 

Mr. SCOTT. And if there is no—if you don’t know one way or the 

other, you lose the constitutional challenge? 

Ms. WEISER. That is correct. 

Mr. SCOTT. But the State does not carry its burden to show that 

it is not discriminatory, so it cannot be precleared if nobody knows. 

Is that right? 

Ms. WEISER. That is right. 

Mr. SCOTT. And the covered States, the covered—isn’t it true 

that the covered States are covered the old-fashioned way, they 

earned it? 

Ms. WEISER. Certainly they covered—this Congress amassed a 

very extensive record in 2006 demonstrating that the States that 

are covered under section 5 of the Voting Rights Act still have a 

problem of discriminating against minorities in voting and still 

merit coverage under that law. 

Mr. SCOTT. Thank you. 

Ms. Mitchell, you mentioned somebody that got multiple voter 

cards, presumably because people didn’t bother to change address, 

and they all got sent to the same person. Are you suggesting that 

we need procedures to protect against somebody showing up multiple times in the same precinct, claiming to be different people in 

the same precinct? Is that something we need to concentrate on? 

Ms. MITCHELL. I think whatever steps we can take to ensure the 

integrity of the election is appropriate. 

Mr. SCOTT. You are not suggesting that somebody showing up 

multiple times in the same precinct is a problem? 

Ms. MITCHELL. You think that that can’t happen? I absolutely believe it can happen. These polling places are chaotic. 

Mr. SCOTT. Okay. Somebody showing up multiple times in the 

same precinct is a problem that needs a focus. 

Can you tell me the process, Ms. Mitchell, of obtaining an ID sufficient to comply with voter ID laws, what the process is if you 

don’t have an ID? 

Ms. MITCHELL. If you do not have an ID, it varies from State to 

State. But I can tell you that in most of these States, generally 

speaking, certainly in the case of South Carolina and in the case 

of the Virginia law that is pending at the moment, in most of these 

cases, there are alternatives. You can cast provisional ballots. The 

States will issue free IDs, will provide transportation to obtain the 

IDs. 

Mr. SCOTT. Okay. What is the process? What documents do you 

need? 

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Ms. MITCHELL. To be able to get an ID? I do not know the answer to that question. You go and have your photograph taken at 

a—— 

Mr. SCOTT. Are you a lawyer? 

Ms. MITCHELL. I am, but that varies from State to State. 

Mr. SCOTT. Okay. 

Ms. MITCHELL. So which jurisdiction are you asking about? 

Mr. SCOTT. Well, maybe that is the point. If you don’t have an 

ID, you don’t even know where to—a lawyer doesn’t even know, 

can’t even articulate where you would start. 

Ms. MITCHELL. Well, different States would have different requirements. For instance, if you move into the District of Columbia—when I moved into the District of Columbia, you can present 

a utility bill, you can present a copy of a—you can show your 

check, a checkbook that has your name on it, you can show a lot 

of different kinds of information. 

Mr. SCOTT. But that is not a photo—that is not with your photo 

ID. 

Ms. MITCHELL. No, that is in order to obtain your photo ID. 

Mr. SCOTT. You can get a photo ID sufficient with a utility bill? 

Ms. MITCHELL. In most jurisdictions, yes. 

Mr. SCOTT. Okay. How do you prove your citizenship? 

Ms. MITCHELL. Well, the Federal law requires that you have to 

have a birth certificate or a passport. And, actually, it is the Federal law today, as enacted by Congress in 1986, that in order to get 

a job every employer in this country is supposed to require two 

forms of proof of citizenship. 

Mr. SCOTT. Ms. Weiser, can you explain how long it takes to get 

some of these documents and some of the problems? Like if you 

were adopted or if you are old and no hospital records are available 

and if your name doesn’t agree with the birth certificate, like you 

were married or divorced or something, what kind of complications 

can occur and how long it can take to get an ID? 

Ms. WEISER. Certainly. Ms. Mitchell is correct that the requirements for obtaining photo ID do vary State by State, but in virtually every State a birth certificate is required, and that is something that certainly has caused a lot of problems for many potential 

voters seeking to get IDs. 

There was a highly publicized case of a 96-year-old woman, Dorothy—I forget her last name—from Tennessee who did not have a 

copy of her birth certificate and was unable to obtain photo ID in 

order to vote, and she had been voting for 70 years. This is something that many individuals get caught up in a catch-22 of needing 

a birth certificate to get a photo ID, and of needing a photo ID in 

order to get a birth certificate issued, as one example. 

Many States certainly do not have expedited procedures for people to get photo IDs. There is a lot of processing that goes into that, 

and that could also create a lot of snafus for people seeking to vote, 

as another example. 

Mr. SCOTT. How long can this take? 

Ms. WEISER. I don’t know the range of time, but I am happy to 

provide that in writing after. 

[The information referred to follows:] 

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Ms. WEISER. And I should also add that the documents that are 

required to obtain photo IDs that are supposedly free now in the 

States that are requiring them typically cost money and typically 

are not made available for free, with the single exception of the 

Kansas birth certificate, which now can be made available for free. 

And so these IDs will also create financial burdens for those seeking to obtain them simply for voting. 

Mr. SCOTT. And so it doesn’t prevent you from voting, it just puts 

a little barrier. So you can’t identify a single person who was denied the right to vote. But if you are trying to register—if a thousand people are trying to register, a lot of them are just not going 


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to get their paperwork in on time to be able to register and show 

up to vote; is that true? Some of them—— 

Ms. WEISER. That certainly sounds accurate. But there are also 

many people who, no matter how hard they try, are still unable to 

obtain photo IDs, even those who think about it months and 

months in advance of the election. So, for some people, it is actually 

an absolute barrier as well. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. FRANKS. And thank you, Mr. Scott. 

Without objection, the Chair would submit for the record an article by Hans von Spakovsky, Every Single One: The Politicized Hiring of Eric Holder’s Voting Section. I commend it to your reading. 

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Mr. FRANKS. And without objection all Members will have 5—— 

Mr. NADLER. Mr. Chairman. 

Mr. FRANKS. Please. 

Mr. NADLER. I ask to be recognized for two unanimous consent 

requests. 

Mr. FRANKS. Please. 

Mr. NADLER. First, Mr. Chairman, I ask unanimous consent to 

place in the record the recent Third Circuit Court of Appeals decision in RNC versus DNC rejecting the RNC’s motion to get out 

from under the 1982 consent decree barring the RNC’s—that is ReVerDate Aug 31 2005 14:45 Aug 07, 2012 Jkt 000000 PO 00000 Frm 00106 Fmt 6633 Sfmt 6601 H:\WORK\CONST\041812\73859.000 HJUD1 PsN: DOUGA

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publican National Committee’s—historic practice of voter intimidation and disenfranchisement. The court said the continuation of the 

consent decree was still necessary. I ask unanimous consent this be 

placed in the record. 

Mr. FRANKS. Without objection. 

Mr. NADLER. Thank you. 

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Mr. NADLER. I also ask unanimous consent to say that I have, 

since speaking earlier, read Mr. Eversole’s prepared testimony, and 

in his prepared testimony he does reference the 2012 decision of 

the court, the Federal court in New York, so what I took to be his 

misleading testimony was—it was misleading but only by omission 

of what was in the written record. So I want to acknowledge that 

he was in his written testimony completely honest and complete. 

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Mr. FRANKS. Thank you, Mr. Nadler. 

Without objection, all Members will have 5 legislative days to 

submit to the Chair additional written questions for the witnesses 

which we will forward and ask the witnesses to respond as promptly as they can so that their answers may be made part of the 

record. 

Professor Weiser, we will be forwarding you questions from my 

office related to the claims of 11 percent of the people. We don’t 

know if that includes incapacitated people, incarcerated people, 

former felons, those 60 percent who decide not to vote at all. So we 

will be forwarding that. 

And without objection all Members will have 5 legislative days 

within which to submit any additional materials for inclusion in 

the record. 

With that, again, I thank the witnesses sincerely for coming, 

thank the Members and observers, and this hearing is now adjourned. 

[Whereupon, at 10:30 a.m., the Subcommittee was adjourned.] 

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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

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Material submitted by the Honorable Trent Franks, a Representative in 

Congress from the State of Arizona, and Chairman, Subcommittee on the 

Constitution 


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Material submitted by the Honorable Jerrold Nadler, a Representative in 

Congress from the State of New York, and Ranking Member, Subcommittee on the Constitution 


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Response to Post-Hearing Questions from Cleta Mitchell, Partner, 

Foley & Lardner 


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Post-Hearing Questions submitted to M. Eric Eversole, Director, 

Military Voting Project 


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Note 

July 31, 2012: In reply to follow-up requests to respond to 

the post-hearing questions for the record, Mr. Eversole 

opted to decline to respond to these questions. 

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Response to Post-Hearing Questions from Wendy Weiser, 

Director of Democracy Program, New York University School of Law 


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Response to Post-Hearing Questions from J. Christian Adams, Attorney, 

Election Law Center, PLLC 


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Note 

July 31, 2012: In reply to questions for the hearing record, 

Mr. Adams’ responses would be identical to those of Ms. 

Mitchell’s. Please refer to Ms. Mitchell’s responses and the 

attachments submitted with her response. 

Æ 


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