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40–619 2008

VOTER REGISTRATION AND LIST MAINTENANCE 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ELECTIONS 

COMMITTEE ON HOUSE 

ADMINISTRATION 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

HELD IN WASHINGTON, DC, OCTOBER 23, 2007 

Printed for the use of the 

Committee on House Administration 

( 

Available on the Internet: 

http://www.gpoaccess.gov/congress/house/administration/index.html 

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(II) 

COMMITTEE ON HOUSE ADMINISTRATION 

ROBERT A. BRADY, Pennsylvania, Chairman 

ZOE LOFGREN, California 

Vice-Chairwoman 

MICHAEL E. CAPUANO, Massachusetts 

CHARLES A. GONZALEZ, Texas 

SUSAN A. DAVIS, California 

ARTUR DAVIS, Alabama 

VERNON J. EHLERS, Michigan 

Ranking Minority Member 

DANIEL E. LUNGREN, California 

KEVIN MCCARTHY, California 

S. ELIZABETH BIRNBAUM, Staff Director 

WILLIAM PLASTER, Minority Staff Director 

SUBCOMMITTEE ON ELECTIONS

ZOE LOFGREN, California, Chairwoman 

CHARLES A. GONZALEZ, Texas 

SUSAN A. DAVIS, California 

ARTUR DAVIS, Alabama 

KEVIN MCCARTHY, California 

VERNON J. EHLERS, Michigan 

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VOTER REGISTRATION AND LIST 

MAINTENANCE 

TUESDAY, OCTOBER 23, 2007 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON ELECTIONS, 

COMMITTEE ON HOUSE ADMINISTRATION, 

Washington, DC. 

The subcommittee met, pursuant to call, at 2:03 p.m., in Room 

1310, Longworth House Office Building, Hon. Zoe Lofgren [chairwoman of the subcommittee] Presiding. 

Present: Representatives Lofgren, Gonzalez, Davis of California, 

McCarthy and Ehlers. 

Staff Present: Liz Birnbaum, Staff Director; Thomas Hicks, Senior Election Counsel; Janelle Hu, Election Counsel; Jennifer Daehn, 

Election Counsel; Matt Pinkus, Professional Staff/Parliamentarian; 

Kyle Anderson, Press Director; Kristin McCowan, Chief Legislative 

Clerk; Daniel Favarulo, Staff Assistant, Elections; Matthew 

DeFreitas, Staff Assistant; Fred Hay, Minority General Counsel; 

Gineen Beach, Minority Election Counsel; and Roman Buhler, Minority Election Counsel. 

The CHAIRWOMAN. Good afternoon and welcome to the Subcommittee on Elections and our hearing on Voter Registration and 

List Maintenance. 

Throughout the year, this subcommittee has made an effort to 

examine our electoral process, from how voters vote; their experience at the polling place; and, finally, how that vote is counted. All 

are very important, but today we turn our attention to the role of 

the States in ensuring that eligible voters are allowed to vote. 

Section 8 of the National Voter Registration Act created requirements for how States maintain voter registration lists for Federal 

elections. The act requires States to keep voter registration lists accurate and current. The act also requires list maintenance programs to incorporate specific safeguards, that they be uniform, nondiscriminatory, in compliance with the Voting Rights Act. HAVA 

reinforced this requirement. 

Since 2005, the Justice Department has been aggressively enforcing NVRA’s requirement that States clean their voter registration 

rolls. To date, the Department has filed suit against four States 

and questioned others. While it is the role of the DOJ to enforce 

NVRA and HAVA, the zealous manner in which this provision has 

been enforced may have an adverse impact, leading to the disenfranchisement of eligible voters. There is also increased concern 

that the agency charged to protect voters has become politicized, 

with party activists such as Hans Von Spakovksy heading the 

DOJ’s purge efforts. 

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The EAC has issued a guidance report on implementing HAVA; 

however, it does not provide specific recommendations and procedures for developing database matches and conducting list maintenance. There is a lack of clear and specific standards for States to 

follow in performing list maintenance. This has resulted in inconsistent standards between States and within States for Federal 

elections. 

The transition to a central, uniform, and computerized statewide 

voter registration database has caused significant problems. The 

exact matching data requirement from registration forms to data 

on other State and Federal databases may be overly strict and does 

not take into account even simple data entry errors. 

Beyond matching, statewide voter lists are also subject to periodic removal of ineligible voters. This process is supposed to be 

transparent and nondiscriminatory. Unfortunately, States such as 

Florida have purged thousands of legal voters. Other States still do 

not notify voters who have been removed from voter rolls, denying 

them the right to contest these erroneous purges. 

In her testimony before the Committee on the Judiciary, where 

I also serve, Monica Goodling, the former director of public affairs 

for the Department of Justice, introduced many to the concept of 

vote caging. This practice is used to challenge voters’ eligibility to 

vote at the polls, arguing that voters could not be reached at the 

address, and thus the registration is fraudulent. It sounds simple. 

However, more often than not there are other factors, such as the 

voter not being home or refusing to sign for a mailing, that caused 

the mail to return. Caging places an undue burden on the voter to 

prove his or her registration is valid. 

HAVA created a delicate balance between preventing fraud and 

allowing voters access to the ballot. That balance must be preserved. We cannot set up barriers to the electoral process for eligible voters. Removal of voters from voter registration lists has historically disenfranchised minorities and hurt the confidence in the 

election system. The quality of voter registration lists must be improved, and safeguards to protect eligible voters must be put in 

place. 

I thank the witnesses for testifying before this committee today, 

and I am interested in the testimony from both panels. I think it 

is important that we hear not only from election administrators, 

but also election advocates. And at this point I would like to recognize the Ranking Member of the subcommittee, Mr. McCarthy, for 

his opening statement. 

[The statement of Chairwoman Lofgren follows:] 

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Mr. MCCARTHY. Well, thank you, Madam Chair. I am excited 

about having hearings. I always come to hearings being able to 

gather greater information, especially when it comes to voter registration, the polls, the rolls that we have. We need to be diverse. 

We need to make sure across America that we have a fair, honest, 

and transparent system. So that is why I am looking forward to today’s hearing. 

I am disappointed, though, in today’s hearing. As we look for 

transparency, as we look for honesty, especially when it comes to 

voters, voters’ rights, voters’ rolls, the panel will not have transparency today. Of the eight witnesses we will have, there will be 

six on the majority side, two on the minority side. I am disappointed this subcommittee’s partisanship changed. And that is 

unfortunate when it comes to election rules. I do agree with Speaker Pelosi that it should be partnership, not partisanship. 

So today there will be a lot of questions. Some may not be able 

to be answered, some may have to go on further. And we may have 

to dwell beyond what we are able to hear today. But I thank you 

for coming. I appreciate the opportunity that we do have. 

And. Madam Chair, I ask unanimous consent that the written 

testimony from Mr. Ed O’Neal, Mr. Scott Leiendecker, and the exhibits of Mrs. Willard Helander be included in the record of today’s 

proceedings. 

[The statement of Mr. McCarthy follows:] 

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The CHAIRWOMAN. Without objection, that testimony is entered 

into the record. 

[The information follows:] 

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The CHAIRWOMAN. Other members will have their statements entered into the record. 

[The statement of Mr. Ehlers follows:] 

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The CHAIRWOMAN. And we will turn now to our witnesses. 

We have on our first panel, first, Mr. Chris Nelson, the minority’s witness. He is Secretary of State for South Dakota, and he has 

been serving in that capacity since his election in 2002. As Secretary of State, he has received the 2003 Excellence in South Dakota Municipal Government Award from the South Dakota Municipal League, and the 2004 Hazeltine/Taylor award from South Dakota Kids Voting, the group I used to be very involved in when I 

was in local government. 

In 2005, he was appointed as a National Governors Association 

representative on the United States Election Assistance Commission Board of Advisors. Prior to becoming Secretary of State, he 

held the position of State elections supervisor in the Secretary of 

State’s Office for 13 years, and was Uniform Commercial Code supervisor in the same office for 2 years. He graduated from South 

Dakota State University in 1987 with a bachelor’s degree in animal 

science. 

Next we have Larry Leake, the chairman of the North Carolina 

State Board of Elections. Mr. Leake serves as the chair, and he has 

been a member of the Board of Elections since 1993. In addition 

to his work on the State Board of Elections, Mr. Leake also is a 

partner at Leake & Scott, where he practices governmental law 

and civil defense. Prior to his membership on the board, he also 

served as State senator, attorney for the Madison County Board of 

Commissioners, and attorney for the Town of Hot Springs. He 

earned his bachelor’s and his juris doctor at the University of 

North Carolina. And we welcome him. 

Patricia Hollarn is our next witness. She has served as supervisor of elections in Okaloosa County, Florida since 1988. Her tenure in this office has been marked by great advances in technology, 

from the introduction of the first PC in the office to participating 

in pilot programs on Internet voting. Her introduction to Kids Voting, later revised to Kids Vote Too, has been very successful in 

training students to be voters for life. 

Ms. Hollarn has been a member of the National Task Force on 

Election Reform since 2001, where she works closely with congressional staff as well as other election administrators on election 

laws. She testified on several issues in Governor Bush’s Task Force 

on Election Reform in 2001, and in December of 2002 was appointed as one of four supervisors of elections in an advisory panel 

to the Governors Task Force II on Elections. Ms. Hollarn received 

her bachelor’s degree from the University of New Hampshire, and 

has completed graduate work at New York University, St. Mary’s 

University, San Antonio, Texas, and the Florida Center for Public 

Management at FSU. 

And finally, we have Jackie Harris, the general registrar in Fairfax County, Virginia. She has served as the general registrar since 

2005. And prior to her work in Fairfax County, she has over 14 

years’ experience in the field of voter registration and election administration, having served as the general registrar and deputy 

registrar in Albemarle County, Virginia. She is also a current 

member of the Virginia State Board of Election’s VERIS, which is 

the Virginia Election and Registration Information System, on that 

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108 

project development team, and she is a past chairwoman of the 

statewide Local Government Officials Conference. 

We welcome all of you, and we will put your entire statements 

in the record of this hearing. We ask that your oral testimony take 

5 minutes. When your time is up, a red light will show, and it always surprises the witness because it goes like a flash. When you 

have got 1 minute to go, a yellow light will go on, which will give 

you fair warning. And we do ask that you try and stay within the 

time frame so we can hear everyone and get to our questions. 

STATEMENTS OF CHRIS NELSON, SECRETARY OF STATE, 

SOUTH DAKOTA; LARRY LEAKE, CHAIRMAN, NORTH CAROLINA STATE BOARD OF ELECTIONS; PATRICIA HOLLARN, SUPERVISOR OF ELECTIONS, OKALOOSA COUNTY; AND JACKIE 

HARRIS, GENERAL REGISTRAR, FAIRFAX COUNTY 

The CHAIRWOMAN. If we could start with you, Mr. Nelson, we do 

thank you for being here. 

STATEMENT OF CHRIS NELSON 

Mr. NELSON. Thank you, Madam Chair, members of the committee. It is my honor to appear before this committee. List maintenance is that delicate—— 

The CHAIRWOMAN. There is a button on your microphone. 

Mr. NELSON. Got it. Just need to move it a little closer. 

List maintenance is that delicate balance between making sure 

our registration lists are clean and we not remove any legally 

qualified voter from that list. 

I want to spend most of my time today talking about the provisions of the National Voter Registration Act list maintenance process. And after 14 years of experience with that 1993 law, we have 

found what I believe is a key flaw in that law that Congress needs 

to address. 

I would like to give you some real numbers from South Dakota 

that illustrate this particular problem. Eight of our 66 counties 

have more than 100 percent voting-age population registered. Of 

our current active voter registration lists, seven-tenths of 1 percent 

of the voters have not voted or had any contact in 10 years. One 

particular county has 21⁄2 percent of the people on the active list 

not voting, no contact in 10 years. 

The entire effectiveness of the NVRA list maintenance procedure 

comes down to one key point and one key person; and that is not 

an election official, but a postal delivery person. Because as those 

address verification cards are sent out, it all comes down to whether or not that postal delivery person puts that card in a box or it 

comes back undeliverable. That is what the entire success or failure of that system rests upon. 

The process begins with this nonforwardable mailing. And if it 

comes back to the election official, we can follow up on that. If it 

goes in the box, that person will stay on the list for 2 more years. 

What we have found is there are four key failure points in this 

particular process. The first failure point is does the postal person 

know who is at that address? And postal people have told me we 

don’t know who is in that house or behind that box number. We 

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know who it is registered to, but we don’t know on a daily basis 

who is there. 

Second failure point, this nonforwardable card under Federal law 

too frequently gets forwarded, as opposed to being returned undeliverable. 

Third failure point, delivering to the address alone, without looking at who the addressee is on the card. 

And the fourth failure point, simple delivery mistakes. We have 

all gotten somebody else’s mail. The key point is if that card goes 

in a box, the process is over and that name will remain on the list 

for 2 more years. 

These mistakes are real mistakes that happen with frequency, 

and they outline and compound the failure of the list maintenance 

process laid out in the National Voter Registration Act. 

Now, let me be clear, this process is a good start, but it doesn’t 

make for a complete list maintenance system. We must have, in 

order to have a complete system, the ability to at some point remove voters for nonvoting and noncontact. I would recommend that 

that come at the 6-year period. A voter who has not voted, had no 

contact whatsoever in 6 years, that we at that time be able to move 

them to the inactive registration list, and realize they stay on that 

list for another two general election cycles. So, really, a total of 10 

years that a person would be on the registration list with no voting, no contact. 

In South Dakota, that would amount to 30 elections that that 

person would choose not to vote in before we would be able to ultimately remove them from the list. And I would maintain that by 

that point in time, 10 years, 30 elections, that that person is either 

not there or they have signaled that they really don’t want to be 

involved in this process. And there are statistics out there to show 

that there are individuals in that particular situation. 

Our current system has this design flaw. And I am not suggesting we replace what NVRA allows us to do with list maintenance, but we need an additional provision that allows us at some 

point to remove names for nonvoting and noncontact. 

We can do better with list maintenance than what we are currently doing now. And I would ask that this committee and this 

Congress consider that particular change in the National Voter 

Registration Act. Thank you. 

The CHAIRWOMAN. Thank you very much for your testimony and 

also for your brevity. 

[The statement of Mr. Nelson follows:] 

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The CHAIRWOMAN. I would turn now to Mr. Leake. Am I mispronouncing your name? 

Mr. LEAKE. The last E is silent, Madam Chair. 

The CHAIRWOMAN. Well, Mr. Leake, welcome. And we welcome 

hearing your testimony. 

STATEMENT OF LARRY LEAKE 

Mr. LEAKE. Thank you very much. We certainly appreciate the 

committee’s very gracious invitation. First of all, for your general 

information, the State Board of Elections in North Carolina is a 

five-member, quasi-judicial board that has the responsibility of enforcing our election laws and overseeing the administration of elections in all 100 of our counties. 

I must tell the committee that our view of the National Voter 

Registration Act and our experience perhaps differs somewhat from 

South Dakota’s. We would tell the committee that we have been 

able to devise a list maintenance system which we believe works, 

and works very effectively. We would further share with the committee—and it is attached to our written testimony—some examples of where, as a result of certain inquiries made both by our 

State Auditor’s Office and by the voting section of the Federal Department of Justice, we have had reason to do some in-depth analysis of what is happening with our list maintenance. There have 

been some studies done, which are attached, which we believe the 

Department of Justice initially misconstrued as to what those percentages mean. 

In North Carolina, we have gone to great effort to ensure that 

no eligible voter is ever disenfranchised. Therefore, in our computer 

banks, if you will, we will always have the name of any registered 

voter. But we very carefully remove and place in an inactive list 

those voters with whom we have had no contact for 2 years. We 

do not allow any voter who there is any question about his qualifications and eligibility to vote to become a part of the mainstream 

vote, if you will. 

In Congressman Watt’s district, if there was a provisional ballot 

situation, that ballot, if the person says they are entitled to vote, 

they will be allowed to vote, but that ballot is segregated and kept 

separate and apart until we are certain that that person is, in, fact 

a registered voter. 

I think when you simply look at the inactive and active registration totals, which have been done in certain instances, such as in 

Wautauga County in North Carolina, home of Appalachian State 

University, it misconstrues, when compared with the census figures, what is going on. There are a large number of students who 

have moved to Wautauga County and are legally voting in that 

county. So we would urge this committee to view with skepticism 

a comparison to population figures without an analysis of why and 

what might be going on. 

In our eastern and western sections of our State we have a large 

number of people moving in. I come from the western part of the 

State, the mountainous part of the State. We firmly believe that 

the Census Bureau, if you will, is not going up all the ‘‘hollers’’ to 

find all the folks. So we believe that the key fact is that we do follow up on our law and your law to make certain that all felons— 

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and we have a very elaborate system for doing that—all those who 

are deceased, are removed from the voting registration rolls. And 

in our State we have a very active program through our SEIMS 

program, our State Election Information Management System, that 

allows us to make certain that no individual is voting in two localities. 

So we hope that you continue to find ways to improve, but certainly don’t throw away the baby with the bath water. We need to 

continue a system that ensures the integrity of the process, but encourages and makes easy participation. 

The CHAIRWOMAN. Thank you very much, Mr. Leake. And also 

for your brevity. 

[The statement of Mr. Leake follows:] 

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The CHAIRWOMAN. And we have next Ms. Hollarn. Thank you for 

your testimony. 

STATEMENT OF PATRICIA HOLLARN 

Ms. HOLLARN. Thank you very much. I too am quite honored to 

be asked to testify. 

The CHAIRWOMAN. Is the microphone on? There is a little button 

you need to push. Pull it a little closer so we can hear you. 

Ms. HOLLARN. Thank you. Sorry. 

The CHAIRWOMAN. Very good. 

Ms. HOLLARN. Again, thank you for asking me to testify today. 

And in addition to the biography and the written testimony, I 

would like to add two things about myself. Number one, I am not 

here as a witness representing any majority or minority party. I 

am here solely as a defender of voter rights, especially in Florida, 

and particularly Okaloosa County, Florida. And the main principle 

of my office is ‘‘good enough is the enemy of excellence.’’ And that 

is the way we operate. 

NVRA did the Nation a great service by leading us in the right 

direction for list maintenance. And Florida actually in its conforming legislation went even a little bit further. And I know, I 

helped in drafting that legislation, and also in the procedures for 

supervisors in our State association. 

In addition to the written testimony, these are three main points 

I would like to bring out about our list maintenance. 

Number one, every application, every record change that comes 

to our office, requires acknowledgment so that every voter who, 

from whatever source we receive that information—whether it is 

his own application or some other document from some agency— 

gets a voter card if, in fact, the application was correct; a notice 

of not being eligible with the reason for the lack of eligibility; a notice of incomplete with not only the reason, but another form that 

has information on it that the voter has already submitted; and a 

prepaid postage return as well. So in other words, every voter is 

given every opportunity to correct any information that needs correction at that point. 

The second point is that every change to a voter’s record needs 

documentation. It is not possible—well, it is not a practice for people to go in and change people’s records arbitrarily. You must be 

able to justify with evidence every change you make to a voter’s 

record, whether it is from the voter himself, from an agency such 

as the Bureau of Vital Statistics on death, and any of the other 

places from whom we receive information about a voter, such as if 

he is registered in another jurisdiction. Florida voters are not removed simply for not voting. They are removed for no contact. And 

the written testimony, too lengthy basically to outline the steps 

here, gives you scenarios as to this very lengthy process of contacting a voter and making any change to his status at all. And the 

fact is that the list maintenance procedures under this Florida law 

have resulted in cleaner rolls. 

Now the voter only has one responsibility basically, and that is 

to advise the elections office of his—any change of address, or perhaps name, or something like that. But basically it is the change 

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hanced list and voter registration by requiring a statewide voter 

registration system has gone to great lengths to enhance the entire 

procedure. 

The written testimony includes a discussion on removal of felons 

from the rolls. And perhaps, Madam Chair, you were referring to 

the original attempt in 1998, which I was very critical of then, and 

now still. That process was stopped. It was presented at the wrong 

time, and it was stopped before it did damage. 

In 2000, lessons learned, supervisors of elections simply refused 

at such a time in a Presidential election year to even use such a 

list as it was. Basically, that was the end of lists. There is no such 

thing as a felon list in Florida. There is an application that may 

be matched against files in other agencies, and that is simply it. 

By and large we are quite satisfied with the system we have in 

Florida, and hope that my testimony has in some way cleared up 

some of the misconceptions. 

The CHAIRWOMAN. Very helpful. Thank you very much. 

[The statement of Ms. Hollarn follows:] 

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The CHAIRWOMAN. And those bells and whistles tell us that we 

have three votes on the floor of the House. What I would like to 

do is take Ms. Harris’ testimony, and then we will adjourn for 

those three votes, which will take us about a half an hour, and 

then come back. 

So Ms. Harris, if you could give us your testimony, and then we 

will recess for voting. 

STATEMENT OF JACKIE HARRIS 

Ms. HARRIS. Madam Chair, I would like to thank you and the 

members for inviting me to appear before you today. In my testimony today, I would like to focus on what I see are the four key 

elements to any list maintenance program at the State level. 

And I would like to use, by example, a recent implementation of 

the program in Virginia that stemmed from a new Virginia law 

that was instituted January 1 of this year. Basically, that was requiring the Division of Motor Vehicles to provide to voter registration offices and to the State Board of Elections a list of individuals 

who had indicated that they were not citizens on an application for 

a driver’s license or an NVRA-type transaction at the Division of 

Motor Vehicles. 

I would like to apply the four standards that I have pulled out 

to that particular scenario and to show how it is very important 

that each of these are considered. 

The first is that the statewide centralized voter registration database needs to be robust, and it needs to be accurate, and it needs 

to be capable of being updated. There need to be resources available in order to implement new programs. Because as we all know, 

election law tends to change rapidly and frequently. So as this new 

program was developed, it was not able to be implemented into our 

statewide voter registration system. We have had to process this 

data outside that system. 

The second key element that I think is important to the list 

maintenance is an informed electorate. And that means that voters 

know how to register to vote, how to update their address with us, 

and what the consequence of any action may be. For these particular voters, they may have marked a box on a DMV driver’s license application that at the top of the form said, ‘‘for the purposes 

of voter registration are you a citizen of the United States, and 

would you like to register to vote or update your voter registration 

address today?’’ 

We, among the hundreds of phone calls we took after processing 

these registrations, had a number of people who said it said at the 

very top ‘‘for the purposes of voter registration only.’’ I am a registered voter, I didn’t do it, I marked ‘‘no.’’ They did not realize at 

the time that marking ‘‘no’’ to this question on citizenship was actually authorizing us to remove their name from active voter registration lists. That was the State law, and we were compelled 

under State law to do that. But the voter had no sort of fail-safe 

at the time to say, you know, marking this box, this is the consequence of that action. 

The third item that I think is important to any maintenance list 

or list maintenance program is that we are getting accurate and 

timely data from any other source of information. And that may be 

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the Division of Motor Vehicles or the Social Security Administration, all sorts of agencies. Courts give us information on adjudications of incapacity. State Police give us information on people who 

have been convicted of felonies. So we have a variety of sources 

that we rely upon. We need that information to be accurate and 

timely. 

In this particular instance, we are concerned that the information we have received was not necessarily accurate. There was 

some evidence that there may have been Division of Motor Vehicle 

employees who checked those boxes on behalf of the voter. Whether 

they made any sort of verbal confirmation or not, we don’t know. 

But we could tell that there was a different pen used, a different 

style of marking the box, et cetera, on the forms that we were able 

to see. So we had some concerns about the accuracy. 

And, of course, the fourth piece of any registration system in list 

maintenance is that the voter has an opportunity to have a fail-safe 

or a correction device. So we do send mailings to these voters, 

which prompted the hundreds and hundreds of phone calls to let 

them know that, by the way, the Division of Motor Vehicles has informed us that you marked a box that you are not a citizen of the 

United States. And much to their surprise, and not really so much 

to our surprise, we did receive hundreds of phone calls. More than 

25 percent of the individuals that we removed under that program 

have since reregistered to vote and corrected that information. 

However, we have heard from more like 40 to 50 to maybe even 

60 percent of these people, through either that reregistration contact or through the angry phone call contact. So we are thinking 

that there are still a large number of individuals who may have 

been impacted by this program that have yet to respond to us. 

So as we look at list maintenance procedures, I think we need 

to make sure that we ensure that each of these elements is being 

addressed before a new procedure is put in place to ensure eligible 

voters remain eligible, ineligible voters are removed. But we need 

to make sure we are preserving the ability of eligible voters to cast 

their vote. Thank you. 

The CHAIRWOMAN. Thank you very much. 

[The statement of Ms. Harris follows:] 

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The CHAIRWOMAN. And thanks to all of you. 

At this point we have about 7 minutes left on our first vote, followed by two 5-minute votes. And so we will be here around 3:00. 

Get up, enjoy yourselves, and we will be back. And we are in recess 

now. 

[Recess.] 

The CHAIRWOMAN. As the voting has ended and we have at least 

our two members here so we can proceed, we will first thank you 

for your patience in waiting for us to come back, and move forward 

on the question period of our hearing. I would ask first if the Ranking Member would like, as a courtesy, to precede or not as he wishes. 

Mr. MCCARTHY. Madam Chair, I think tradition, the Chair always goes first. I would respectfully wait until after you. 

The CHAIRWOMAN. That would be fine then. I would like to ask 

then, before I get to Ms. Davis—Mr. Leake, Mr. Watt came earlier 

especially to show honor to you. He said he can’t come back, but 

he wanted to make sure that you knew how pleased he was that 

you were here. 

In your written testimony, you indicate that the State auditor 

identified fewer than 100 potential violations of the law out of a 

database of 5.5 million active and inactive voters. And as I understand, all those cases were referred to the appropriate district attorney or prosecutor. Do you know how many of those 100 that 

might be a problem actually ended up being prosecuted? 

Mr. LEAKE. I do not, but I think it would be fair to say, ma’am, 

that there were few, if any, that actually ended up being prosecuted. 

The CHAIRWOMAN. So would it be—I guess you are speculating, 

but it wasn’t in the paper or anything that you ever got a report 

back that there were prosecutions based upon this. Because I 

guess, just like Ms. Harris’ testimony, mistakes can be made, 

and—— 

Mr. LEAKE. Mistakes are made, Madam Chairwoman. And we in 

fact have had some very graphic mistakes made the other way, in 

which we received information of—in one instance, of a person 

being a convicted felon having voted, and even notified the Department of Corrections that this particular person was an escapee. 

Turned out that it truly was a different person, same name. 

Had another situation where a person was deceased, individual 

voted giving the same residence, same name. As it turned out, different person, no relationship to the deceased person even. 

So the errors can happen both ways. But we did feel like after 

we did our analysis after the issues were raised by the State auditor, that 100 problems out of 51⁄2 million is a pretty good record. 

The CHAIRWOMAN. And we don’t even know if those 100 were in 

fact a problem based upon the prosecution. 

Mr. LEAKE. We do not know the extent of the problem, yes, 

ma’am. 

The CHAIRWOMAN. Let me ask you, Ms. Harris, the story about 

the DMV was pretty enlightening. As a matter of fact, before this 

hearing, a friend of a member of my staff who has a Ph.D. actually 

told a similar story. They went in and they were already registered 

to vote, so they checked the box they didn’t need to register. And 

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then they found out that they were off the rolls, which is kind of 

a shock and an upset to them. 

What do you think? That is a serious problem where eligible voters, Americans who registered to vote, get thrown off through this 

error. What do you think the Federal Government could or should 

do to prevent that kind of disenfranchisement from happening? 

Ms. HARRIS. Because this is a State law-generated issue—— 

The CHAIRWOMAN. But Motor Voter is ours. 

Ms. HARRIS. Correct. This particular element, I think part of it 

is that as we look at implementation of any State law that has a 

removal of a voter from the rolls, that we do look to the Federal 

law and we do look to the ability to perhaps flag a voter rather 

than actually remove them, and have an opportunity to somehow 

send them, you know, a notice that this information has been 

flagged. And if indeed they don’t respond to that, at least maintain 

that flag through the election so that the individual has the right 

to be told the qualifications for voting at the polls and agree that 

they do or do not meet those qualifications before casting their 

vote, rather than the wholesale removal, which we expressed our 

concerns once we reviewed that list and the names on it. 

The CHAIRWOMAN. Ms. Hollarn, have you run into a similar type 

of situation? 

Ms. HOLLARN. Well, the fact is that we don’t remove someone 

just from notification. We do have the process where a person has 

to be notified that this action will be taken. 

The CHAIRWOMAN. Right. 

Ms. HOLLARN. For instance, if it is—— 

The CHAIRWOMAN. That was part of the improvements you insisted on in your State, right? 

Ms. HOLLARN. Right. What happens is, for instance, if there is 

someone who has been identified as a felon, if we send him the 

packet of information requesting a response in 30 days, and that 

is by certified mail, if we do not hear back from them at all we are 

required to publish an ad in the newspaper of general circulation 

saying there will be an administrative hearing to take additional 

information about it. And it is only after that process is exhausted 

that someone is removed from the rolls. And if at some point in the 

future there is evidence that comes to light that an error has been 

made in removing that person, he does not even have to reregister. 

He would be automatically restored. 

The CHAIRWOMAN. Now, let me ask you this, just by way of practice, because there are a lot of reasons why you don’t—a registered 

receipt. I mean, if you are not home there is nobody to sign—— 

Ms. HOLLARN. Right. 

The CHAIRWOMAN. It is irritating. They put something in your 

front door, and maybe you sign it and maybe you don’t, and maybe 

it falls off in the rain. And there are lots of reasons why. I understand that. 

Ms. HOLLARN. Right. 

The CHAIRWOMAN. If you publish that, do advocacy groups—like 

does the League of Women Voters actually help get people notified 

or anything of that nature? 

Ms. HOLLARN. Yes, they do. I myself use the ACLU. We have an 

active chapter in nearby Pensacola, Florida. And I work with them 

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mostly with assistance for felons, because that is the thing I feel 

is very important, that nobody should be removed given a past history of the problems in 1998 and 2000. 

The CHAIRWOMAN. Very good. My time has expired, so I will turn 

now to the Ranking Member, Mr. McCarthy, for his questions. 

Mr. MCCARTHY. Thank you, Madam Chair. 

Ms. Harris, I was intrigued, too, by—did you say it was 800 people? 

Ms. HARRIS. Eight hundred twenty-seven names removed from 

the first list. 

Mr. MCCARTHY. And because they matched the same name 

or—— 

Ms. HARRIS. In Virginia we have access to the full Social Security 

number in our voter registration database, so these were names, 

date of birth, and Social Security matches. 

Mr. MCCARTHY. And all three matched the same? 

Ms. HARRIS. To the greatest degree. DMV oftentimes collects 

only—on the report we received it did not have middle name. It 

had first and last name, date of birth. 

Mr. MCCARTHY. This is the DMV. And you are talking right up 

on the front where it says ‘‘Are you a citizen of the United States 

of America?’’ and they had to check ‘‘no’’ or the DMV person 

checked ‘‘no’’? 

Ms. HARRIS. Correct. 

Mr. MCCARTHY. And then the Social Security was the same 

matching number? 

Ms. HARRIS. Correct. 

Mr. MCCARTHY. Did you notify Social Security of that? I mean, 

what do we do with 800 people with the same matching Social Security? 

Ms. HARRIS. I don’t think that these were necessarily a case of 

the wrong individual being identified. I think that the statement 

that they were not a citizen of the United States is what they were 

disputing the accuracy. 

Mr. MCCARTHY. There were not two different people. 

Ms. HARRIS. It wasn’t two different people. It was actually an individual saying, ‘‘I never said that, I never marked that box.’’ 

Mr. MCCARTHY. Okay. Were any of them not citizens of those 

827? 

Ms. HARRIS. I am sure there is absolutely a portion of that list 

that would represent noncitizens. I am using that as speculation 

simply because we had people who have not responded to the mailing who we have pulled our files and taken a look at their original 

registrations. The original registrations for the greatest majority do 

have that ‘‘Yes, I am a citizen of the United States’’ marked on 

their actual registration application. There was a period of time in 

Virginia history not that long ago where the State Board of Elections had directed registrars to accept registrations without the box 

actually checked, because the attestation at the bottom of the form 

included the words, ‘‘I am a citizen of the United States.’’ 

Mr. MCCARTHY. So currently if somebody doesn’t check that box, 

though, doesn’t answer it, what happens if they have no answer to 

a voter registration card that asks them are they a citizen? 

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Ms. HARRIS. At this point in time, they are sent a new form that 

said ‘‘You have not indicated your citizenship status on the registration application.’’ 

Mr. MCCARTHY. And they are not put into voter registration? 

Ms. HARRIS. No, they are not. 

Mr. MCCARTHY. Is that the same with everyone else? 

Ms. HOLLARN. Incomplete. 

Mr. MCCARTHY. Incomplete? 

Mr. NELSON. In South Dakota, if the citizenship box is not 

checked, we do go ahead and register them and then follow up later 

to get that information, because part of the oath they are signing 

swears that they are a citizen. 

Mr. MCCARTHY. Another question for you. You talked about 

being removed from the rolls and how you go about maybe flagging 

it. Do you have any concept of how long before, say, that person 

you had here was not a citizen, they didn’t respond back, they 

haven’t voted in the process? From your concept, should anyone be 

removed from the rolls, or how long should somebody stay on the 

rolls? Maybe you found that they are illegal or not. How long 

should someone stay on the rolls before they are removed? 

Ms. HARRIS. I think using the basis of NVRA, and that if there 

is actually a flag next to the voter’s name, it precludes them from 

casting a ballot before that missing information or questionable information is given to us. So I think that following a status of placing them on an inactive roll or, you know, to-be-determined status, 

that you can go through the two Federal elections maintaining that 

separate list, because that does give us the opportunity to say here 

is our active voter rolls, and this represents, you know, people that 

we are fairly certain are at the right location, et cetera, et cetera. 

But then there is the secondary, which doesn’t necessarily mean ineligible. And oftentimes people are flagged as though they are ineligible. 

Mr. MCCARTHY. If you are flagged, is that a provisional ballot 

then? 

Ms. HARRIS. In Virginia, if you are flagged as an inactive voter, 

you have the ability to sign an affirmation of eligibility at the polls. 

You are explained all the rules regarding voter registration. And 

you have to agree that you understand that and you accept that 

these are true. We always have people that, you know, we question 

based on other information, and we provide them with the information that this—you are signing this under penalty of perjury. 

Mr. MCCARTHY. Now, this is I guess for anyone. Does anyone on 

the panel have any personal experience with the alleged fraudulent 

voter registration practices of the ACORN group, A-C-O-R-N? Does 

anybody have personal experience with that group? No? 

Ms. HOLLARN. Sir, not in my county, but it has occurred in the 

State of Florida. 

Mr. MCCARTHY. Okay. I guess my time is about up, but I would 

just like to note for the record that our proposed witness for the 

director of St. Louis City Board of Elections has such experience, 

but was not allowed to testify today on the ACORN issue. Thank 

you. 

The CHAIRWOMAN. The gentleman’s time has expired. The 

gentlelady from California, Ms. Davis, is recognized for 5 minutes. 

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Mrs. DAVIS of California. Thank you, Madam Chair, and thank 

you all for being here. 

Could you just help me out in terms of your work experience? 

You know, how great a problem do you think it is that people actually make up registrations on voter registration forms, whether 

they vote twice, whether you have seen that in your experience, 

and voting for dead people on rolls? Is that something that you see 

in your experience as well? How widespread? 

Ms. HOLLARN. Are you addressing me? 

Mrs. DAVIS of California. All of you. 

Ms. HOLLARN. Well, from our experience in Florida, I can say 

that the dead people, no, I have not seen any of that. The only time 

it has occurred is if a name was removed because there was—we 

don’t have Social Security numbers, so if persons with the same 

name, possibly a clerical error; but when the person showed up we 

discovered the person wasn’t dead, so there was no fraud involved 

whatsoever. In our experience in Florida, people register and they 

don’t really care about voting. 

There are other reasons. Especially in that narrow strip of Florida that I live in that is so close to Alabama and Georgia, they register because our hunting and fishing licenses are cheaper. A fraudulent homestead on a second home in Destin. Things like that. Or 

in-state tuition at Florida State. Those are the primary reasons for 

fraudulent registrations, because those have occurred. 

Many years ago, when we required identification to register to 

vote, that is sort of locking the barn door before the horse gets stolen. The fact is that we encountered a sizable number of people— 

let us say when you talk about 5 out of 100, I think is significant 

enough to mention—that owned a home someplace else but felt 

they were entitled to vote in Florida because they had this second 

home there. In other words, trying to maintain registration in two 

places. 

There was that infamous discovery of 40,000 people so-called registered in New York as well as in the east coast of Florida. Things 

like that. So some of those people occasionally do vote, but the 

fraud is being committed for purposes other than actually voting. 

We have no way of knowing when we as ministerial officers simply 

take whatever a voter tells us. Unless evidence is produced to refute it, we have no idea. But fraud I have to say is not a big issue 

for voting. 

Mrs. DAVIS of California. Secretary Nelson. 

Mr. NELSON. In South Dakota, 2002 was the last election prior 

to the Help America Vote Act verification system that went into 

place. And in that election we had attempts to register people that 

did not exist, attempts to register people that were deceased. But 

with the advent of the Help America Vote Act verifications, we now 

have a very strong tool to make sure that kind of thing can’t happen again. And it also allows us to catch people that are under felony convictions where they are still disqualified. 

We have caught, since those verifications went in, 150 people 

that have tried to register to vote that were still in that disqualification status. So we think with that tool, we are in pretty good 

shape as far as identifying those types of things. 

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Mrs. DAVIS of California. Anybody else want to comment? I know 

your experiences are different. But I appreciate that. Is it a greater 

problem that we are purging too many from the voter rolls or there 

is too much deadwood on the rolls? I hate to use that word again 

in that way, but—— 

Ms. HARRIS. I will speak to that, in that I have been in this business pre-NVRA, and I know there was a lot of concern when that 

act passed that there would be some major inflation of the voter 

rolls. And certain places did experience that. I think Virginia’s long 

history of having access to the full Social Security number and having used that as the unique identifier for the voter for many years 

kept our rolls particularly clean—in addition to the fact that we 

have a full general election every November. We don’t vote only in 

off years. 

I did not see any sort of dramatic rise in our voter registration 

rolls immediately following NVRA. So it seemed to remain fairly 

consistent. In the first few years before the initial purge under the 

provisions of NVRA, we did see some additions to the rolls, but I 

think that was pretty well kept between the active and the inactive 

status. It was fairly clearly identified which voters were in that 

questionable status that we needed to determine further their eligibility. 

Ms. HOLLARN. I think when we had to reinstate all the inactives 

to the active rolls in January 1995, there was. And it took several 

years—well, it was 2000—I mean 1997 before we could address the 

list maintenance for that. But it has eventually worked out. But I 

think there is a combination of things. 

First of all, we are actually not different. It is just that Florida 

does not require Social Security numbers. So an applicant has the 

choice of putting either the Florida driver’s license or the last four 

of the Social. So if one can gain access to a place to get mail that 

is a legitimate address and put down any four numbers for a Social, that is why we have people there that we can’t identify. Okay. 

But I do not think that kind of error on the part of the voter, 

shall we say, carries over to voting as much. But the list maintenance itself has worked itself out. And this dead wood I think in 

some ways is an unfair term, because these are genuine people who 

have become detached from the electoral process for many other 

reasons. 

Mrs. DAVIS of California. Okay. Thank you very much. 

The CHAIRWOMAN. The gentlelady’s time has expired. 

We turn to the gentleman from Michigan, Mr. Ehlers, for his 5 

minutes. 

Mr. EHLERS. Thank you very much. And first of all, Mr. Nelson, 

I have a lot of respect for South Dakota because I grew up in 

Pipestone, Minnesota, just across the border. 

Mr. NELSON. Thank you. 

Mr. EHLERS. And once a year we made an annual shopping trek 

to Sioux Falls—— 

Mr. NELSON. Very good. 

Mr. EHLERS [continuing]. Which was the nearest major metropolitan area. 

Mr. NELSON. Very good. 

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Mr. EHLERS. But the people of South Dakota are, as far as I can 

tell, very straight arrow. And you probably have less problems than 

most people. I was surprised to hear that you have several hundred 

that you had to clean off the rolls, which is not a huge number, but 

it surprised me that you had any. If you have that many, there 

must be other States with a lot more. 

I was concerned about your comment that, you know, it takes 10 

years to clear someone from the rolls, which is 30 elections. That 

is a long time. Now, is that delay due to State law or Federal law? 

Mr. NELSON. And if I could just clarify, 10 years is what I was 

proposing. Under current Federal law it is indefinite. As long as 

this card goes in a post office box someplace, that name will stay 

on for 2 more years. And as long as it goes in a box 2 years down 

the road it stays on for another 2 years. It will stay on forever, 

until that card actually comes back. And, of course, whether or not 

that card goes in the box or comes back is entirely up to the postal 

worker. 

Mr. EHLERS. Okay. In Michigan, I think we were the first State 

to develop the statewide voter registration list. It is handled by the 

Secretary of State, who also is in charge of driver’s licenses. So 

early on, in fact I think over 15 years ago now, those lists basically 

were married in some fashion—perhaps not married, but at least 

in an adulterous relationship—where if you move and get a new 

driver’s license, as I understand the system, your voter registration 

is automatically moved to the new address that you give. 

Also, unfortunately, we don’t have the person from Michigan 

here to testify, but I believe also if you move out of State you get 

an out-of-State license, that State then notifies Michigan that this 

license has been issued, therefore the old license dies. And I believe 

that person is either removed from the rolls or put in an inactive 

status. That has a healthy effect on purging the list of people who 

have moved away. Has your State considered doing that? 

Mr. NELSON. We have not merged those two lists. As NVRA requires, we certainly have electronic voter registration at the driver’s license agency. You check the box and you can change your 

registration. We have not gone to the length that Michigan has to 

pull those two lists together. But even in Michigan’s scenario, if 

somebody moves but does not change their driver’s license address 

and no longer is involved in the process, and this address 

verification card goes out, as long as it goes into a box someplace 

the name is going to stay on the list. 

Mr. EHLERS. Well, it is a crime in Michigan to not give your 

change of address to the Secretary of State. And certainly you have 

to do it when the license expires or you won’t get it. So it is at least 

a shorter time. 

I want to also ask, and I think Mr. Leake, let me ask you this 

question. Some States, in fact many States use voter registration 

lists for the jury pool. We have heard reports, in fact we had it happen in my State of Michigan once, that jurors declined to serve on 

the jury because they were not citizens of the United States, but 

yet they got on the list by virtue of declaring they were citizens. 

Do you have any difficulty with that in North Carolina? 

Mr. LEAKE. No, sir. I am a trial attorney, and in fact in North 

Carolina the registration lists are a component of the jury venire. 

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And I have never, in my 32 years practicing law, encountered that 

problem nor heard of it as it relates to a juror that came off a registration list. 

Mr. EHLERS. How about Virginia or Florida? 

Ms. HARRIS. In Virginia, I have heard instances where an individual has said they are not a citizen for the purposes of serving 

on a jury, and that was later determined to be the false statement, 

not the original registration. And part of our outreach efforts is always reminding voters that, as was said earlier, the voter registration list is not the sole source of jury. We have people that refuse 

to register to vote because they don’t want to serve on juries. 

Mr. EHLERS. Okay. 

Ms. HOLLARN. In Florida in 1998 we changed the jury list to 

come from 18-year-olds on the driver’s license rolls rather than the 

voter registration for that very reason. And the biggest problem we 

have is no-shows to the juries, which now some of the courts are 

holding those people in contempt. But also with the driver’s license, 

in Florida it costs $10 to change your address on your driver’s license. So many people ignore that, and the only time it comes to 

light is if they are involved in some sort of traffic incident where 

their driver’s—they have to verify that is their license. And then 

that becomes an additional violation for not having the correct address. But they will automatically take their address change for 

voter registration at the same time they do change an address at 

driver’s license. 

Mr. EHLERS. Thank you. In Michigan I believe we do not charge 

for changing addresses. 

The CHAIRWOMAN. The gentleman’s time has expired. When you 

are 18, you never think you will get in an accident. 

Ms. HOLLARN. And they do. 

The CHAIRWOMAN. I would just like to thank this panel for appearing and for your testimony, and invite the next panel to step 

forward. And also just to let Mr. Ehlers know that Chris Thomas, 

the staff tells me, was invited but was unable to attend today’s 

hearing. 

We now invite our second panel to step forward. I would like to 

introduce, first, Deborah Goldberg. Deborah Goldberg is the Democracy Program Director at the Brennan Center for Justice at the 

NYU School of Law. Ms. Goldberg oversees the program’s research, 

public education, and advocacy, all of which work to eliminate barriers to full and equal political participation, and to ensure that 

public policy and institutions reflect the diverse voices and interests of democracy. Ms. Goldberg has testified on government reform before the U.S. Senate, the Federal Election Commission, and 

State legislative bodies. 

Following graduation from Harvard Law School, Ms. Goldberg 

clerked for two Federal judges, then-Judge Stephen Breyer of the 

U.S. Court of Appeals for the First Circuit, and the late Judge Constance Baker Motley of the U.S. District Court for the Southern 

District of New York. Before law school, she obtained a Ph.D. in 

philosophy from the Johns Hopkins University and taught for 3 

years at Columbia University. 

Next we have Spencer Overton. Mr. Overton is a professor at the 

George Washington University Law School, where he specializes in 

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democracy. Professor Overton’s academic articles on election law 

have appeared in several leading law journals. In the past, Mr. 

Overton has served as a commissioner on the Jimmy Carter-James 

Baker Commission on Federal Election Reform, as well as the Commission on Presidential Nomination Timing and Scheduling. He is 

also currently serving on the boards of Common Cause, Demos, and 

the American Constitution Society. 

He received his B.A. From Hampton University and his law degree from Harvard University, and has appeared as a witness before this committee in the past. 

Next I would like to introduce Kristen Clarke. Ms. Clarke is codirector of the Political Participation Group at the NAACP Legal 

Defense and Educational Fund. At LDF, she handles a range of 

voting rights matters, including a constitutional challenge to the 

recently reauthorized provisions of the Voting Rights Act. Prior to 

joining LDF, Ms. Clarke worked for several years in the civil rights 

division of the U.S. Department of Justice. For 3 of those years she 

served as a trial attorney in the voting section of the division, 

where she handled enforcement efforts under the Voting Rights Act 

and the National Voter Registration Act. 

Ms. Clarke received her bachelor’s degree from Harvard University and her juris doctor from Columbia Law School. 

And finally, we have the minority’s witness, Robert Driscoll. He 

is a partner in Alston & Bird, LLP, and a partner in the litigation 

and trial practice group. He concentrates his practice on complex 

commercial litigation, government relations, white collar crime and 

related internal investigations, civil rights matters, and products liability. Prior to joining Alston & Bird, Mr. Driscoll served as deputy assistant Attorney General and chief of staff for the civil rights 

division of the United States Department of Justice, where in addition to providing policy, legal, and strategic advice to the assistant 

Attorney General and other members of the Department of Justice 

leadership, he oversaw the special litigation and educational opportunities sections. 

Mr. Driscoll graduated magna cum laude from Georgetown University with a degree in finance, and cum laude from the Georgetown University Law Center. 

And we do welcome each and every one of you. As you know from 

listening to our prior witnesses, your full statements will be made 

part of our official record of this hearing. We ask that your testimony be given in about 5 minutes. And when the red light goes on, 

your time is up. And that will give us time also to ask questions. 

STATEMENTS OF DEBORAH GOLDBERG, DIRECTOR OF DEMOCRACY PROGRAM, BRENNAN CENTER FOR JUSTICE AT 

NYU SCHOOL OF LAW; SPENCER OVERTON, PROFESSOR, 

THE GEORGE WASHINGTON UNIVERSITY LAW SCHOOL; 

KIRSTEN CLARKE, CO-DIRECTOR, POLITICAL PARTICIPATION GROUP NAACP LEGAL DEFENSE FUND, INC.; AND ROBERT DRISCOLL, PARTNER, ALSTON & BIRD, LLP 

The CHAIRWOMAN. So, if we may hear first from Ms. Goldberg. 

STATEMENT OF DEBORAH GOLDBERG 

Ms. GOLDBERG. Thank you very much. 

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The CHAIRWOMAN. Would you please turn your microphone on? 

Ms. GOLDBERG. Thank you very much—— 

The CHAIRWOMAN. Much better. 

Ms. GOLDBERG [continuing]. Madam Chair, members of the committee, for holding this hearing and for permitting me to come and 

speak to you about the work that we have done on voter registration and list maintenance. 

The Brennan Center for Justice is a nonpartisan think tank and 

advocacy organization that focuses on issues of democracy and justice. We are deeply involved in the effort to ensure fair and accurate voting and voter registration systems, and to promote policies 

that maximize participation in our elections. We have done extensive work on the subject of voter registration and the maintenance 

of voter registration lists, including several studies and reports. We 

have published a 50-State study of the verification procedures used 

for getting people onto the list. We have published a study on voter 

caging. And we will shortly be publishing two new reports, one 

called ‘‘The Truth About Voter Fraud,’’ and the other on purge procedures. 

In addition, we provide assistance to Federal and State administrative and legislative bodies with responsibility over elections. 

And, when necessary, we litigate to compel States to comply with 

their obligations under Federal law and the Constitution. 

In my written testimony, I describe three areas of concern that 

warrant congressional attention and action. 

First, notwithstanding the Help America Vote Act, citizens are 

having problems getting onto voter lists because some States, including both South Dakota and Florida, are unlawfully using data 

entry errors and other circumstances that are totally unrelated to 

the eligibility of a voter as the basis for rejecting voter registration 

forms. 

Ms. GOLDBERG. Second, fully eligible and properly registered eligible voters are being unlawfully kicked off voter rolls because of 

poorly designed purges that are conducted in secret and without 

adequate protections against errors. 

Third, the Department of Justice has recently been pressuring 

States to conduct overly aggressive purges while it ignores its duty 

to enforce the provision of the National Voter Registration Act that 

requires States to facilitate voter registration. Congress can address all of these concerns by adopting the series of recommendations that I set forth in my written testimony. I don’t have time 

to go through them all here, but I am happy to discuss them with 

you if you have specific questions. 

When you review our recommendations, you will see that they 

are all informed by one core principle: We believe that the right to 

vote is the most fundamental right of our democracy. It is the right 

that is preservative of all other rights. Without its full and equal 

exercise we place the freedom envied by the rest of the world in 

serious jeopardy. 

In this Nation we treasure our freedom. Because that freedom is 

so important, we have a presumption of innocence in our courts. 

We do not deprive someone of his or her liberty unless we have evidence of guilt beyond a reasonable doubt. We do not lightly risk the 

liberties of an innocent person, we put our thumb on the scale in 

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favor of freedom. Because it is the bulwark of our freedom, the 

right to vote also deserves the most vigorous defense that we can 

provide. 

When Americans seek to register and vote, they should be protected by a presumption of eligibility just as they are protected by 

the presumption of innocence. We should be able to rebut the presumption of eligibility only with concrete and convincing evidence 

that a person is not legally entitled to vote. We should not lightly 

risk the voting rights of our citizens. We should put our thumb on 

the scale in favor of universal registration and universal suffrage. 

Under this principle, Congress should be making every effort to 

facilitate registration and voting. In the context of today’s hearing 

our commitment to the fundamental right to vote requires that 

Congress set policies to help citizens get on and stay on voting 

lists. 

Congress also should continue to exercise vigorous oversight over 

the Department of Justice and hold individual Department of Justice officials accountable for policies that erect unnecessary and unlawful barriers to registration and voting. Congress can do this by 

adopting the Brennan Center’s recommendations, and we urge you 

to do so without delay. 

In brief, those recommendations affect both the process of getting 

on the list and the process of getting off the list. To facilitate getting on the list there should be flexible standards for verifying 

voter information, and there should be generous opportunities to 

correct inaccuracies or minor things that do not affect eligibility. In 

terms of taking people off the list, we recognize that accurate lists 

are important to the integrity of our elections and purges must 

take place, but they should be transparent to the public. We should 

know when, why, how and by whom purges are being conducted. 

Moreover, the purges should be conducted pursuant to uniform and 

nondiscriminatory standards that allow for correction of error and 

facilitate reinstatement when there has been a mistake. 

[The statement of Ms. Goldberg follows:] 

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The CHAIRWOMAN. Thank you very much, Ms. Goldberg. 

Professor Overton. 

STATEMENT OF SPENCER OVERTON 

Mr. OVERTON. Madam Chair, Mr. McCarthy, thank you so much 

for having me. I am here today to talk about problems related to 

voter caging. 

Voter caging happens when a political party or another political 

entity sends mail to registered voters, the political party then collects the mail that comes back as undeliverable, adds those names 

to a caging list and then challenges voters on the caging list as not 

validly registered. 

Now, let me be clear up front, I agree that only legitimate voters 

should cast ballots at the polls. I am not a mind reader, I am not 

here to testify that all people who use voter caging to prevent fraud 

want to suppress legitimate voting. Also, I agree that caging is a 

perfectly fine process for mass marketers to ensure that they don’t 

spend money mailing junk mail to bad addresses. Instead, my 

claim is that caging alone is a bad tool to challenge and purge voters. 

Madam Chair, as you mentioned, legitimate voters show up on 

caging lists all the time. In 2004, legitimate voters like college students away at school, members of military stationed in Iraq, homeless people and people who lived in apartment buildings were on 

these caging lists who were legitimate voters. Mail may be returned as undeliverable because the registration lists have data 

entry errors such as the fact that an apartment unit number is not 

listed. In a spot check of a caging list in Milwaukee in 2004 approximately 20 percent of the addresses had data entry problems. 

Now, when a consumer erroneously ends up on a mass marketer’s caging list, the result is you get one less piece of junk mail, 

which isn’t always a bad thing. But when a citizen erroneously 

ends up on a voter caging list, the consequences are more severe. 

In Florida, for example, a challenged voter doesn’t have a chance 

to prove that he or she is legitimate, they just have to cast a legitimate ballot, which is less likely to be counted here. And there’s 

some other problems that will be on the Wiki that I mentioned, the 

Web site in terms of my written testimony. 

Voter caging is also a problem because it doesn’t represent uniform enforcement of the law. In Georgia in 2004, for example, three 

people gathered the names of 123 voters with Hispanic surnames 

in a rural county, Atkinson County, and they challenged 95 of 

them. Now, some of the voters went down and showed their proof 

of citizenship until someone spoke up and said, hey, this is a problem. And eventually the board said these challenges are illegitimate, they violate the Voting Rights Act. 

In Florida in 2004, Republicans created a caging list of Duvall 

County. Of those who could be identified, one study showed that 

76 percent were Democrats and 69 percent were people of color. 

Now, it is possible that Democrats or people of color were overrepresented in the caging lists because they were overrepresented 

on the list of newly registered voters. That is very possible. The 

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mandering and targeted messaging, and it is maybe difficult for 

them to distinguish between those practices and targeted voter caging. 

I think that Congress should have additional hearings on caging, 

consider legislation to stop caging. This is a national problem. Emails and other evidence show national involvement to engage in 

voter caging in the 2004 presidential swing States across the country. 

Federal legislation is also needed to provide clear guidance. The 

law is murky on voter caging. Voter caging litigation often happens 

in the days just before a major presidential election. Partisan emotions are high. It is difficult to gather all the relevant evidence. 

And as a result, Federal judges have been split as to whether or 

not to stop voter caging. 

We do need to have a real discussion about fraud and access. But 

voter caging is not the answer to fighting fraud. The right to vote 

is more important than junk mail. Thank you. 

[The statement of Mr. Overton follows:] 

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The CHAIRWOMAN. Thank you very much, Professor. Ms. Clarke. 

STATEMENT OF KRISTEN CLARKE 

Ms. CLARKE. Madam Chair, Representative McCarthy, I am honored to have the opportunity to appear before you this afternoon to 

share our views regarding voter registration and list maintenance 

issues. 

The NAACP Legal Defense Fund is the Nation’s oldest civil 

rights law firm. We serve as legal counsel for African Americans 

in a number of important Federal voting rights cases and have also 

been very active in congressional efforts regarding all of the major 

legislation affecting minority voting rights over the last several 

decades. 

In recent years, we have witnessed the emergence of several 

threats to the registration status of minority voters, including the 

development and implementation of purge programs that rely upon 

flawed matching methodology, challenges mounted against voters 

inside polling places, and noncompliance with the mandates of the 

National Voter Registration Act. Together, these trends threaten 

the fragile gains that have been made with respect to registration 

rates among minority voters. 

The NVRA requires that any voter removal or purge program be 

both uniform and nondiscriminatory. Although purge programs ostensibly seek to preserve the integrity and accuracy of our election 

rolls, such programs also run the grave risk of disqualifying large 

numbers of qualified registrants if they are too broad in scope. 

In addition, these programs place the great burden of reregistration squarely on impacted citizens and can thus discourage voters 

from participating in the electoral process. 

A recent purge program carried out in Louisiana provides one 

stark example of a program that is both overly broad with respect 

to the persons targeted for removal and with respect to the amount 

of discretion given to election officials charged with the task of 

striking voters from the rolls. 

Just this past June, Louisiana officials began implementing a 

purge program that sought to remove voters who were presumed 

to be ineligible because their names appeared on the registration 

rolls in more than one State. Over 55,000 voters were targeted for 

removal. Persons deemed to be dual registrants were identified 

through a database matching system that used out-of-state voter 

registration lists to conduct comparisons of last names, first names, 

and date of births for matching purposes. Now, where other States 

employed different voter registration list maintenance procedures, 

attempts to conduct out-of-state matches of this type can be both 

difficult and error prone. 

In Louisiana, registrars were instructed that a ‘‘Lisa A. Anderson’’ and ‘‘Lisa Pruitt Anderson’’ could be considered a match, because with many female voters, according to one Louisiana election 

official, one registration may be under their middle name and one 

may be under their maiden name as their middle name. 

Indeed, this particular purge program is one that has proven to 

be both overly broad in scope and unscientific in its matching 

methodology. Ultimately, over 12,000 voters were stricken from the 

rolls. These voters were removed and were likely ineligible to parmstockstill on PROD1PC66 with HEARING

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ticipate in very important elections conducted this past Saturday in 

Louisiana. 

Recent problems that emerged in Louisiana following a canvas of 

the State election rolls also suggest the need to revisit the rules 

and procedures used by registrars to update voter registration lists. 

Following Hurricane Katrina, Louisiana suspended its annual canvass of its rolls in light the mass displacement of voters. However, 

this spring, Orleans Parish proceeded to canvass its rolls relying 

upon change of address information supplied by the U.S. Postal 

Service. 

The effects of this canvass were widely felt this past Saturday as 

voters went to their polling place only to learn that they had been 

reassigned to a new location. One voter, Sheronda Williams, was 

reassigned to a polling location outside of her home district to one 

near her place of business in the downtown New Orleans area 

where she had been receiving mail since the storm. The Registrar 

of Voters indicated this past Saturday that there were hundreds, 

if not thousands, of voters in New Orleans alone who were impacted by this prematurely conducted canvass. 

In recent years, we have also witnessed challenges permitted 

under the laws of most States standing as a threat to the registration status of many voters, particularly minority voters. Notwithstanding the intimidating effect such challenges can have, it is important to consider whether the information presented by challengers can be used to prevent somebody from casting a ballot on 

election day and subsequently be used to strike that voter permanently from the rolls. 

In conclusion, recent efforts to remove voters deemed no longer 

eligible to vote, including the recent purge program in Louisiana, 

should be carefully scrutinized and examined to ensure that they 

do not result in the removal of otherwise eligible voters. 

Thank you. 

[The statement of Ms. Clarke follows:] 

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The CHAIRWOMAN. Thank you very much. 

Now we turn to Mr. Driscoll for your 5 minutes of testimony. 

STATEMENT OF ROBERT DRISCOLL 

Mr. DRISCOLL. Thank you, Madam Chair, Ranking Member 

McCarthy. I am Bob Driscoll. I am a partner at Alston & Bird in 

Washington. 

From 2001 to 2003, I was the Chief of Staff and Deputy Assistant Attorney General in the Civil Rights Division at the Department of Justice. In that role, I worked on a variety of issues, some 

voting related and also racial profiling issues, desegregation and 

police misconduct. 

Today I want to talk some about balancing the voters’ need for 

access to the polls with ensuring ballot integrity. I really think it 

is important because I have probably a different view from some 

of my colleagues on the panel. There really is a balance that needs 

to be struck in those areas, and I think that Congress tried to 

strike a balance with NVRA and with HAVA, and particularly I see 

the Justice Department today coming in for a lot of criticism for enforcing certain provisions of those laws, and I am here to point out 

that when one is sitting in the chair over at 950 Pennsylvania Avenue one isn’t given the choice as to which laws to enforce. One enforces the laws that Congress passed. People may raise great issues 

as to whether the balance should be altered in terms of purges and 

voter rolls versus access issues, but those laws are on the books 

and they are there to be enforced. At least when I was there we 

viewed it as not optional. 

Now, if anyone has any evidence that those laws are being enforced in an improperly or partisan or improper way, that would 

be great to hear, and that is the point of oversight hearings and 

things like that. I think the philosophical point is the voter access 

issues have to be balanced against concerns of voter integrity and 

voter fraud, and that is what Congress attempted to do both with 

NVRA and with HAVA. 

I would disagree with my fellow panelist, Ms. Goldberg, that this 

equation between all we have adopted in the criminal law—the notion that it is better that four guilty men go free than one innocent 

man be convicted. I think in the voting rights context the analogy 

doesn’t hold up because when someone votes who shouldn’t it effectively cancels out the vote of a legitimate voter. 

So one cannot have such a bias completely in favor of access at 

any cost with no consideration of fraud or integrity issues, or else 

you end up in a situation where legitimate voters are having their 

ballots ignored essentially at the polls. I think that is the balance 

that the Department tries to strike and the Congress tries to 

strike, and I think the subcommittee—it would be a disservice not 

to at least be reminded a little bit that the voter integrity issues 

are real and are legitimate. 

I would point out the Carter-Baker Commission did note that 

these issues of voter integrity affect voter morale and can depress 

turnout if people don’t have confidence that the system works well 

and that the vote is really going to count. The Supreme Court 

noted the same thing in its Purcell decision having do with Arizona 

last term as well. 

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So I think those are two sources that are recognized that this 

goes beyond the particular integrity issue one could point out in a 

given State about whether or not dead people have voted or whether or not people were voting in two different States. But there is 

also the perception of integrity that is important to encourage people to vote to maximize voter turnout at the end of the day. 

My written statement is submitted for the record. I just wanted 

to touch on those issues in my oral testimony. Thank you very 

much, Madam Chair. 

[The statement of Mr. Driscoll follows:] 

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The CHAIRWOMAN. Thank you very much. I would invite the 

ranking member if he wishes to proceed first or I can go first. 

Mr. MCCARTHY. I will just stay with tradition and allow you to 

go first. 

The CHAIRWOMAN. All righty. 

Let me ask you, Mr. Driscoll, you talk about enforcing all the 

laws at the DOJ and it may just be that I didn’t hear about it, but 

NVRA enforcement has been stepped up, I think we all acknowledge that, but I don’t think, at least I have not heard, that the DOJ 

has taken any steps to enforce section 7 requiring State social service agencies to provide registration opportunities to their clients. 

Am I incorrect on that? 

Mr. DRISCOLL. You would have to talk to the Department to get 

the statistics. I recall just anecdotally from when I was there and 

I recall recently that there have been cases brought under both section 7 and 8. 

The CHAIRWOMAN. I have never heard of one. I wonder if you 

know and, since you are not with the Department of Justice anymore, maybe we will ask them that directly. 

Mr. DRISCOLL. I would ask the question, but I think several 

States have been compelled by the Department to step up. Providing, I think, access of social service agencies was the concern in 

some of those matters. 

The CHAIRWOMAN. Let me ask you, Professor, you were a member of the Carter-Baker Commission. One of the things I recall 

your saying when you were here in the 109th Congress was that 

it would be improper to adversely impact the ability of 100 Americans to vote in an effort to find one fraudulent voter; that would 

be disenfranchising 100 Americans to one non-American. Was it 

the Commission’s view otherwise that you should go ahead and do 

that because it was bad for morale? 

Mr. OVERTON. Unfortunately, our commission didn’t really look 

at data in terms of how many fraudulent voters would be excluded 

by, let’s say, a photo ID requirement and how many legitimate voters would be excluded. One of the rationales was that particular 

voters might be discouraged and that might suppress voter turnout. 

My criticism of the majority was that it wasn’t based on data, it 

was totally speculative. 

So for example, I could say, well, because of these photo ID requirements people are just not going to come out, they are going 

to think that people are trying to suppress their vote and that is 

going to drive down voter access. So it is all speculative. And that 

would also be like saying, hey, good people who are in a State like 

the literacy test and they believe that if we don’t have it and 

uneducated people are casting a ballot, well, then, you know, the 

system doesn’t have any integrity. 

The CHAIRWOMAN. I see. 

Mr. OVERTON. We have got these masses who are just making 

bad decisions and they won’t come out. So I think evidence is important here. 

The CHAIRWOMAN. Evidence is important. 

Let me ask you about a court case that I recently learned about 

actually, a 1981 prohibition to the RNC from caging voters based 

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on race. As I understand it, that order was to the RNC only, it 

didn’t affect State parties or other entities. That concerns me. Vote 

caging sounds like some innocent thing, but I recently did some 

more research more from the report we got from the U.S. Attorney’s inquiry in the Judiciary Department. If you go in and do a 

proactive sample in a neighborhood that is heavily minority and 

the mail is returned for a lot of reasons, that can happen for a lot 

of reasons, you will have a disproportionate impact on minority voters. Is that why the 1981 judgment was made; do you know? 

Mr. OVERTON. Well, actually, with that judgment in particular, 

the court prohibited the RNC to engage in balance integrity programs without permission from the court. 

Now the response by the RNC in 2004 was, well, these are states 

that are engaging in this behavior, we are not engaging in this behavior. The response by others was, well, there are e-mails and 

there is other correspondence between the State parties and the 

RNC that suggests that the RNC is engaged and involved in this. 

And that New Jersey court, in fact, prohibited the RNC from continuing. 

The CHAIRWOMAN. Let me ask you this in the remaining time I 

have, is there legislative action that could be taken that would prohibit any political party from engaging in caging that had an adverse impact on racial minorities or was motivated by suppressing 

minority votes? 

Mr. OVERTON. Certainly caging legislation has been adopted in 

a place—like Minnesota has caging legislation. And we could have 

that type of legislation nationwide again. It is particularly important because in the days before an election, you know, judges, there 

is not much law out here, their political whims are pulling different 

judges in different ways. And so to have some clear guidance, based 

on hearings with experts, you know, extensive evidentiary effort 

that comes up with good law will provide guidance to judges and 

to political parties. 

The CHAIRWOMAN. Inexplicably I have used up 5 minutes. I can’t 

believe that. So I will stop and turn to the ranking member, Mr. 

McCarthy. 

Mr. MCCARTHY. Thank you, Madam Chair. 

I just want to follow up on caging and see if I understand it 

right. So one political party went and mailed into an area that was 

disproportionate of another party to determine an outcome? 

Mr. OVERTON. Well, that is the assumption with some caging activities. Like in Nevada the former State Chair of the Republican 

Party explicitly said, hey, I am partisan, I am sending it to Democrats. With other places, like Florida, some Republicans were on 

the list. 

Mr. MCCARTHY. Was it disproportionate like 3:1? 

Mr. OVERTON. I think it was disproportionately Democrats who 

were on the list in Florida. 

Mr. MCCARTHY. Just to determine an outcome, you would know 

the outcome that is going to happen that way? 

Mr. OVERTON. I suppose so. I don’t know about the motives of the 

people in Florida. I know it is about the motives of the person in 

Nevada only because he said what his motives were. With regard 

to the other people, I don’t know the motives. I do know that this 

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caging is imprecise and I also know that it ended up that certain 

people, African Americans and Democrats, were disproportionately 

represented on these caging lists. 

Mr. MCCARTHY. I agree with you, if you set something up where 

you take something 3:1 or 8:2, you are determining the outcome of 

the information that could be gathered. I feel what you are talking 

about. 

Mrs. Goldberg, you had said in your policy testimony about no 

match, no vote. Based upon what Mr. Driscoll said—this is how I 

understand it, you correct me if I am wrong, and if I could dwell 

on a couple different conversations with you to try to see where it 

goes—if a person registers by mail and a person registers in person, do you think there is any more accountability to look at any 

information or should that all be treated exactly the same? 

Ms. GOLDBERG. To be honest, I am not sure I have given that 

much thought to the question. I do know that under current law 

they are treated differently. A first-time registrant who registers by 

mail is going to be subject to different requirements than someone 

who registers in person, unless they can provide with their mailin registration the data that is authorized under the Help America 

Vote Act. 

Mr. MCCARTHY. What if a person registered for the first time, 

registers by mail, doesn’t put down their driver’s license or doesn’t 

put down the Social Security number? Do you feel there is any rationale for accountability there to look for more information or you 

put them on the rolls and they are fine? 

Ms. GOLDBERG. There is no evidence that we know of that the 

types of requirements that are being implemented under HAVA are 

disenfranchising people who are first-time mail-in registrants. 

None of this has anything to do with no match, no vote. No match, 

no vote has to do with people who actually do provide the information on their voter registration forms and then the State tries to 

match that information with other databases. And what we have 

documented is that those procedures, unless they are flexible and 

take into account a lot of common data entry errors, will disenfranchise substantial numbers of people, keep people off the voter registration rolls. 

Mr. MCCARTHY. If you try to match them. 

Ms. GOLDBERG. If you require a very strict match. 

Mr. MCCARTHY. But if I didn’t require the match, and I asked 

you the first question I asked, with the driver’s license, no Social 

Security, and you were a mail-in and you were a first-time, am I 

correct in your answer saying there would be no disenfranchising 

of a person? 

Ms. GOLDBERG. No. What I said was that if there is no match, 

then asking the voter to provide the evidence of identity at the 

polls that is required under HAVA has not been shown to disenfranchise people. The HAVA requirements are not requirements 

that at this point we take great issue with. What we do take great 

issue with is the very strict matching policies that keep people who 

do provide numbers off the voter rolls because of data entry errors 

or because there is somebody who is registered under one name 

and has a driver’s license under a married name, different things 

of that sort. 

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Mr. MCCARTHY. If I go down the row—you give me a yes or no 

to this one—should State agencies like welfare offices be allowed 

to ask an individual if he or she is a citizen before offering that 

person a voter registration form? 

Ms. GOLDBERG. The person who receives a voter registration 

form will be asked that question. It is on the voter registration 

form. 

Mr. MCCARTHY. But prior to giving a person a voter registration 

form, should the welfare worker ask the individual if they are a citizen prior to giving it to them? 

Ms. GOLDBERG. Off the top of my head, it seems to me that what 

I would prefer is have the person assist the client with the registration procedure, which would require asking that question. 

Mr. MCCARTHY. I notice I am out of time. 

Madam Chair, if I could just submit to you pursuant to House 

rules, clause 11, requesting minority member subcommittee hearing, and I yield back. 

The CHAIRWOMAN. This will be received and dealt with according 

to the rules. 

Let me just thank this panel for your excellent testimony. I wish 

we could be here all afternoon and ask additional questions, but 

that is not possible. Under the rules we have 5 legislative days to 

pose additional questions and we may take advantage of that. And 

if we do, the Chair will forward you the questions from all the committee members and we would ask if you would try to respond as 

promptly as possible. 

With that, thank you so much. People don’t realize that our witnesses here today and every day are volunteers just trying to make 

the country a better place, and we appreciate the contribution that 

each of you made in that regard. Thank you very much. 

[The information follows:] 

[Whereupon, at 4:10 p.m., the subcommittee was adjourned.] 

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