04/13/2007 08:03 FAX @ooa

We request information and documentation from the Commission that

answer the following questions:

COMMISSION’S OVERSIGHT ON EAGLETON CONTRACT TO
PERFORM A STUDY ON VOTER IDENTIFICATION

1.

Did the Commissioners or Commission senior staff receive any
outside communication or pressure to change or not release the
entire draft report or portions of the draft language on the voter
fraud report? If so, who made those requests?

Would you please provide a copy of the approved Request For
Proposals, as well as any contract modifications that were agreed
to between the Commission and Eagleton Institute and
subcontractors?

Can you provide the names and qualifications of Election
Assistance Commission staff that worked on the Eagleton Institute
project?

Please indicate how many project meetings occurred during the
term of the Eagleton contract, including in-person meetings,
conference calls regarding the status of the report, and any meeting
where Commissioners were present for at least part of the meeting.
Please provide copies of any minutes from those meetings.

Please identify the names and affiliations of members of the Peer
Review group or groups that examined the Eagleton Institute
drafts. Please also indicate the dates upon which any such review
of the Eagleton research was conducted, and the specific concerns
or complaints that were raised by members of the Peer Review
group as to either the analysis or statistical methodology, if any.
Please provide copies of any minutes from those meetings.

If certain members of the Peer Review groups had concerns with
the data or methodology of the Eagleton study, was that
information communicated to Eagleton, and were any changes
made to the study based on Peer Review group concerns with
methodology or data?

Who were the individuals (and what were their academic
qualifications) that advised the Commission that the data,
methodology, or the results of the Eagleton Contract were so
flawed that the Commission should reject the report? At what point
did the Commission receive input from those individuals?



Senator Dianne Feinstein
Senator Richard Durbin
Page 14 of 17

reviewing the draft report and preparing EAC’s final report have been provided in the
attached responsive documents.

The experts were no longer under contract at the time that the EAC’s report was being
finalized. Thus, the experts were not asked to review or comment on EAC’s report.

5. Please provide copies of any electronic or written communications between
Commission employees that relate to the editing of the Voter Fraud/Intimidation
report.

Responsive documents are attached.

6. Please explain what Mr. Job Serebrov was referring to in his email
referenced in the New York Times article of April 11, 2007. Please provide any
documents in the Commission’s possession where employees or contracted experts
discussed pressure, political sensitivities, or the failure of the Commission to adopt
the Voter Fraud/Intimidation report from March 1, 2006 to present.

An October 1, 2006 article in USA Today erroneously reported that the Commission had
decided not to officially release the vote fraud report. The email from Mr. Serebrov,
which the New York Times article excerpted, specifically responded to an October 13,
2006 email from Peggy Sims, who sought to reassure Ms. Wang and Mr. Serebrov that
the USA Today article was in error and that there had been no attempt by the Commission
to delay the release of the consultants’ report. Ms. Sims’ email noted that the
Commission had not yet seen the consultants’ report and she took responsibility for the
delay.

In addition, Mr. Serebrov’s email responded to comments that were made on the Rush
Limbaugh show as well as calls/communications that were received from a member of
the working group regarding the content of the draft report that was presented to the
working group in May 2006.

7. While we realize that the Commission voted to release its summary report in
December 2006, was there a public vote taken to reject the Draft Voter
Fraud/Intimidation report? Such a monumental decision to reject the contract
experts’ work is a policy decision, and one that should be done in public. When was
the decision made to reject the original report, and what notice was provided to the
public that the Commission would reject that report?

On December 7, 2006, EAC voted at its public meeting to adopt a final report on its
Voting Fraud and Voter Intimidation Study. The report was the culmination of work
conducted by EAC staff and two contract employees hired by the Commission. EAC did
not vote to reject the work of the experts; rather, EAC voted to adopt its own report that
was based on the research conducted by those experts. As in any Federal Agency, the
draft or opinion of every employee or contractor is not a basis for the matter to be taken



Senator Dianne Feinstein
Senator Richard Durbin
Page 5 of 17

of the ten); two presentations to the EAC advisory boards - EAC Standards Board and
EAC Board of Advisors; and two public meetings. A chart detailing the activities and
meetings during the contract period is attached to this letter.

5. Please identify the names and affiliations of members of the Peer Review
group or groups that examined the Eagleton Institute drafts. Please also indicate
the dates upon which any such review of the Eagleton research was conducted, and
the specific concerns or complaints that were raised by members of the Peer Review
group as to either the analysis or statistical methodology, if any. Please provide
copies of any minutes from those meetings.

As a part of the Eagleton contract and work plan, they proposed and used a peer review
group consisting of the following members:

R. Michael Alvarez, Professor, California Institute of Technology;

John C. Harrison, Professor, University of Virginia School of Law;

Martha E. Kropf, Assistant Professor, University of Missouri-Kansas City

Daniel H. Lowenstein, Professor, University of California at Los Angeles

School of Law;

Timothy O’Rourke, Dean, Salisbury University;

Bradley Smith, Professor, Capital University Law School;

o Tim Storey, Principal, National Conference of State Legislatures Program;
and

o Peter G. Verniero, Former New Jersey Attorney General.

o0o0o0

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The Eagleton Peer Review Group met on three separate occasions via conference call.
During those calls, the Peer Review Group provided Eagleton with feedback on both of
their research products on provisional voting and voter identification.

After receiving Eagleton’s first draft on its voter identification work, EAC was concerned
about the data and analysis and empanelled a separate working group. This group
consisted of New York University Professor Jonathan Nagler, MIT Associate Professor
Adam Berinksy, and University of Arizona Associate Professor Jan Leighley. These
working group members were provided the draft report as well as the data on which the
report was based. On May 11, 2006, EAC Research Director Karen Lynn-Dyson
conducted a one-hour conference call with the EAC working group and project staff from
the Eagleton Institute of Politics, including Tim Vercelloti and Tom O’Neill. In addition,
several members of the Eagleton Peer Review Group also participated in the conference
call.

Participants engaged in a high-level, technical discussion of the statistical techniques that
were employed to analyze the data. The working group members expressed concern
about the multi-category, ordinal variable that was used. This variable is represented by
the 5-levels of voter identification requirements: state your name, sign your name, non-
photo identification, photo identification and affidavit. The working group members



04/13/2007 09:03 FAX

10.

The Commission previewed its rescarch on the Eagleton Institute's
study on Provisional Voting at its May 2006 Advisory Board
meetings—why was the Voter Identification Draft Study not
discussed at that time? What is the status of the Provisional Voting
report?

In rejecting the Eagleton report, the Commission indicated
concerns that there was only one year’s worth of data. Given that
this was the first year that Commission had studied the results,
isn’t “one year” what was originally contemplated in the Eagleton
contract? Isn’t the reason for having a major research institute
conduct this study is so they can draw initial assessments from that
data—even though that data can be augmented in future years?
Because of the rejected report, will the Commission start anew for
research in the 2008 elections?

What was the final, total cost of the Eagleton contract, and what
was produced or released by that Commission as a result of that
contract?

COMMISSION'S OVERSIGHT OVER VOTER
FRAUD/INTIMIDATION STUDY

1.

Did the Commissioners or Commission senior staff receive any
outside communication or pressure to change or not release the
entire draft report or portions of the draft language on the voter
fraud report? If so, who made those requests?

Given the bipartisan nature of the Working Group that guided the
Voter Fraud/Intimidation report, and the bipartisan nature of the
contracted experts who uniformly support the results of this report,
what concerns lead the Commission to determine the report should
not be released?

If there were points in the report that the Commission objected to,
were there attempts to work with the contractors to deal with
specific concems? If there were such attempts, please describe
them,

@oos



04/13/2007 08:03 FAX

'

Bnited States Senate

WASHINGTON, DG 20510

April 12, 2007

The Honorable Donetta Davidson
Chairman

USS. Election Assistance Commission
1225 New York Avenue, N.W.

Suite 1100

Washington, DC 20005

Dear Commissioner Davidson:

We are writing to seek a response to very troubling news reports that
included allegations that the Commission may have altered or delayed
release of two taxpayer-funded studies of election issues for political

purposes.

While the Commission is within its rights to decide what guidance it
issues to election officials, it is critical that its actions are not perceived as
politically motivated and it is imperative that you provide full
documentation about the Commission’s proceedings on these matters.

On Wednesday, the New York Times reported that a bipartisan team of
election law experts hired by the Commission to research voter fraud in
federal elections found that there was little such fraud around the nation, but
the Commission revised the report to say that the pervasiveness of voter
fraud was still open to debate.

On Monday, Roll Call reported that the Commission two weeks ago
rejected the findings of a report, prepared as part of a $560,000 contract with
Rutgers University’s Eagleton Institute and Ohio State University’s Moritz
College of Law. That report found that voter identification Jaws may reduce
election turnout, especially by minorities.

@oo2z



Senator Dianne Feinstein
Senator Richard Durbin
Page 10 of 17

B. Unsupported Consultants’ Theme Number Two: Consultants’ draft,
Interviews; Common Themes, page seven, it says there is "evidence of some
continued outright intimidation and suppression..."

EAC Change: EAC’s report, page seven, states that "voter intimidation is also a
topic of some debate because there is little agreement concerning what constitutes
actionable voter intimidation."

Reason for the change from draft to final language -- After reviewing all of the
data provided by the consultants, EAC determined that there is little agreement as
to what constitutes "voter intimidation." There is a difference between actionable
intimidation (criminal) and civil issues and activities that are legal in both the
criminal and civil context. No one is debating that there is some evidence of
intimidation. The question is how intimidation is defined (criminal, civil, both,
neither). One of the tasks assigned to the consultants was to provide a common
definition of “voter intimidation,” as these terms are viewed and interpreted
differently by the public, political parties and the courts. The consultants did not
provide a common definition for “voter intimidation.”

C. Unsupported Consultants’ Theme Number Three: In the consultants’ draft,
second bullet, page seven, it says "most people believe that false registration
forms have not resulted in fraud." This statement was based solely upon the
interviews with 24 people, not on the entire body of research.

EAC Change: EAC’s language in the final report, page nine, first paragraph: |
"For example, the interviewees largely agreed that absentee balloting is subject to
the greatest proportion of fraudulent acts, followed by vote buying and voter
registration fraud." This language was taken from the first bullet on page seven of
the draft report, which begins "There is virtually universal agreement that
absentee ballot fraud is the biggest problem..."

Reason for the change from draft to final language The sentence in the
consultants’ draft was only based upon the 24 interviews, not the entire body of
research. EAC did not feel it was appropriate to include a statement describing
“virtually universal agreement” based only upon interviews, so it was not
included. EAC chose to assign attribution to the interviewees, making it clear that
this was anecdotal evidence. Assigning this opinion specifically to the
interviewees, not “most people,” was a more accurate presentation of this opinion.

Second, the draft report did not satisfactorily cover all of the elements required by the
experts’ contract and, in some cases, exceeded the scope of the contract. The document
did not contain a definition that in any way clarified or provided consensus on the
meaning of the terms “voting fraud” and “voter intimidation.” The expert’s definition
was ultimately overly broad and not useful for conducting future study. The EAC needed
a definition with clear boundaries that could be used to create measurable and repeatable



Senator Dianne Feinstein
Senator Richard Durbin
Page 7 of 17

EAC felt that it should not present a project that was still subject to technical review to
the Standards Board and Board of Advisors. The project simply was not ready for
discussion until some of the expressed concerns were addressed.

In October 2006, the Commission adopted a set of provisional voting best practices,
which is attached.

9. In rejecting the Eagleton report, the Commission indicated concerns that there
was only one year’s worth of data. Given that this was the first year that
Commission had studied the results, isn’t “one year” what was originally
contemplated in the Eagleton contract? Isn’t the reason for having a major
research institute conduct this study is so they can draw initial assessments from
that data — even though that data can be augmented in future years? Because of the
rejected report, will the Commission start anew for research in the 2008 elections?

It was initially contemplated that one year of study would provide a sufficient baseline of
data about the various voter identification laws in place throughout the country. However,
since that time many states have passed or changed their voter ID laws. Both Eagleton
and EAC agreed that data from one election cycle was not sufficient. In order to make
conclusions based upon turnout figures, additional data is needed to compare turnout in
two Presidential election cycles to build on the work done by Eagleton.

10. What was the final, total cost of the Eagleton contract, and what was produced
or released by that Commission as a result of that contract?

The cost was $557,092. This cost included the provisional voting and voter identification
research conducted by Eagleton.

Commission's Oversight Over Voter Fraud/Intimidation Study

1. Did the Commissioners or Commission senior staff receive any outside
communication or pressure to change or not release the entire draft report or
portions of the draft language on the voter fraud report? If so, who made those
requests?

A working group that was a part of this study performed its duties by providing input
regarding summaries prepared by the experts of individual interviews, reports and articles
reviewed, court cases, and news articles, as well as the base data for these summaries.
Some members expressed concern about the ability of one of the consultants to approach
these topics objectively, based upon the consultant’s affiliations and published articles on
the topics. In addition, EAC received communications from two of the persons who were
interviewed — Craig Donsanto and John Tanner -- concerning the fact that they did not
believe that their interviews were properly characterized in the status report that was
delivered and presented to the EAC Standards Board and EAC Board of Advisors at their



Senator Dianne Feinstein
Senator Richard Durbin
Page 6 of 17

were concerned that one or more of the categories of this single variable was based on
unrealistic assumptions. The working group members suggested dividing this single,
ordinal variable into individual dummy variables to represent each of the levels of voter
identification.

There were no minutes taken of this discussion. However, Eagleton agreed to re-analyze
its data using the new method suggested by the working group members.

6. If certain members of the Peer Review groups had concerns with the data or
methodology of the Eagleton study, was that information communicated to
Eagleton, and were any changes made to the study based on Peer Review group
concerns with methodology or data? :

As stated above, Eagleton agreed to re-analyze their data using the new method suggested
by the working group members. When the data was analyzed under this approach, the
results were different than those originally obtained with the multi-category, ordinal
variable. Where Eagleton originally found that the manipulation using the multi-
category, ordinal variable produced statistically significant results, the use of the dummy
variable approach did not result in the same relationship amongst the variables.

7, Who were the individuals (and what were there academic qualifications) that
advised the Commission that the data, methodology, or the results of the Eagleton
Contract were so flawed that the Commission should reject the report? At what
point did the Commission receive input from those individuals?

Throughout the project, questions concerning the data and analysis were raised by staff
Commissioners, and academics, alike. Eagleton briefed staff and Commissioners
concerning their research. During those briefings, Commissioners and staff asked
probing questions about the use of citizen voting age population as the basis of the
turnout figures. Commissioners questioned the turnout figures that were used for specific
states. Similarly, when the draft product was delivered the project manager had concerns
about the analysis and suggested empanelling the working group. The working groups’
concerns were discussed in response to question 5.

All of these factors played a role in the ultimate decision by the Commission not to adopt
the research and report provided by Eagleton. Despite the fact that the Commission did
not adopt the data and report, they agreed to release them to the public, so that the public
could review them and draw their own conclusions.

8. The Commission previewed its research on the Eagleton Institute’s study on
Provisional Voting at its May 2006 Advisory Board meetings — why was the Voter
Identification Draft Study not discussed at that time? What is the status of the
Provisional Voting report?

Concerns, as described above, were being addressed through the working group review.



04/13/2007 09:03 FAX @o03

Commissioner Davidson -2- April 12, 2007

It is imperative that the Commission’s actions and deliberations are
unbiased, free from political influence and transparent. While the
Commission does not have to agree with the experts who perform its
research, it should make the research available unfettered and unfiltered.

Attached are a series of questions, we would like the Commission to
address, We look forward to your timely response.

Sincerely,
ce Qk Da
+ |e Richard J. Durbin
Chairman
Committee on Rules Subcommittee on Financial
and Administration Services and General

Government
Committee on Appropriations



Senator Dianne Feinstein
Senator Richard Durbin
Page 9 of 17

provided a copy to EAC. Mr. Donsanto provided comments to Ms. Sims. Ms.
Sims sent Mr. Donsanto’s and Mr. Tanner’s comments to both consultants.

Both Donsanto and Tanner had access to the EAC status report because the Help
America Vote Act Section 214(a)(12) and (13) [42 U.S.C. 15344(a)(12) and (13)]
requires the membership of the EAC Board of Advisors to include the chief of the
Office of Public Integrity of the Department of Justice, or the chief's designee,
and the chief of the Voting Section of the Civil Rights Division of the Department
of Justice or the chief’s designee.

Communications responsive to this question have been provided in attached documents.

2. Given the bipartisan nature of the Working Group that guided the Voter
Fraud/Intimidation report, and the bipartisan nature of the contracted experts who
uniformly support the results of this report, what concerns lead the Commission to
determine the report should not be released?

It is important to note that EAC’s report was released and adopted at a public meeting of
the agency. What has not been released is one of a number of drafts that were developed
in reaching the final product. Assuming that the question relates to why the draft report
provided by the contracted experts in July 2006 was not released, there were concerns
that led EAC to make changes to the draft provided by the contracted experts. First, after
reviewing the research and data upon which the report was based some of the “themes”
or conclusory statements made in the report were not supported by the underlying
research and data, Please see the examples below: ,

A. Unsupported Consultants’ Theme Number One: In the consultants’ draft,
Interviews; Common Themes, page seven, the second bullet, it says "there is
widespread but not unanimous agreement that there is little polling place fraud, or
at least much less than is claimed, including voter impersonation, ‘dead’ voters,
noncitizen voting and felon voters.”

EAC Change: EAC’s report, page one, second paragraph: "It is clear from the
review that there is a great deal of debate on the pervasiveness of fraud in
elections as well as what constitutes the most common acts of fraud or
intimidation."

Reason for the change from draft to final language -- The statement in the
consultants’ draft report is based only on interviews with 24 people, not on the
entire body of research that was conducted. The statement in the final EAC report
is based upon the entire body of research, including the articles, books and cases
which constitute the appendices. The EAC did not feel that a conclusion about the
pervasiveness of fraud could be reached solely upon the statements of 24 people.



U.S. ELECTION ASSISTANCE COMMISSION
1225 NEW YORK AVENUE, N.W., SUITE 1100
WASHINGTON, D.C. 20005

May 18, 2007

Chairman Dianne Feinstein Via HAND DELIVERY
Senate Rules and Administration Committee

331 Hart Senate Office Building

Washington, DC 20510

Senator Richard Durbin, Chairman

Senate Appropriations Committee,
Subcommittee on Financial Services
And General Government

309 Hart Senate Office Building

Washington, DC 20510

RE: Request for documents and responses concerning
Voting Fraud and Voter Intimidation Study and
Voter Identification Study

Dear Senators Feinstein and Durbin:
Thank you for the opportunity to provide information regarding the research and study

efforts of the U.S. Election Assistance Commission (EAC). In your letter of April 12,
2007, you requested information and documents related to two studies conducted by

EAC: the Voting Fraud and Voter Intimidation Study and the Voter Identification Study.

Over the past several weeks, our staff have been compiling, reviewing and reproducing
documents responsive to your request. By this letter we are transmitting the documents
that you have requested and responding to the questions that you have posed. The
documents are being delivered to the Senate Rules Committee majority office.

Before I address the specific questions, it will be helpful to provide some background
information about these two studies, the people that worked on them, and the products
that were gained from the studies.

Tel: (202) 566-3100 WWW.eac.gov Fax: (202) 566-3127
Toll free: 1 (866) 747-1471


Senator Dianne Feinstein
Senator Richard Durbin
Page 12 of 17

news articles that they reviewed as a part of their research. Furthermore, EAC staff from
the General Counsel’s office was asked, early on, to provide input and feedback to the
experts on their definition of “voting fraud” and “voter intimidation” as well as to provide
guidance on the scope or coverage of those terms. For example, the first definition
received from the contractors, which included a type of negligent or quasi fraud, was
soundly rejected.

The EAC project manager for this study also had conversations and email
communications with the experts concerning the summaries of interviews with the two
Department of Justice interviewees and the concerns that the project manager had from
her own participation in one of those interviews as well as the concerns voiced by the
interviewees about the characterization of their statements, The consultants were
reluctant to edit the relevant summaries. Eventually, they did revise their descriptions,
but the resulting text still conveyed an erroneous impression.

Email correspondence and documents regarding these types of communications have
been provided in the attached responsive documents.

4, Who drafted the Commission summary (released in December 2006) of the
Voter Fraud/Intimidation report, and what were their credentials and involvement
in the original research process? Were there instructions or guidance given from
Commissioners or senior staff as to what portions of the research should be
emphasized? Since the contracted experts are referred to in the Commission’s
released report, were contractors allowed a chance to review or edit that
Commission’s final report that was released in December 2006?

It is important to note that the Commission did not produce a summary of the Voter
Fraud/Intimidation report. The EAC produced a complete report of the study which it
adopted at its December 7, 2006 public meeting. The EAC report was prepared and
edited by various staff members at EAC, including Margaret “Peggy” Sims, Election
Research Specialist; Juliet Hodgkins, General Counsel; Gavin Gilmour, Deputy General
Counsel; and Jeannie Layson, Communications Director. In addition, Commissioners
Gracia Hillman and Paul DeGregorio offered changes to certain portions of the report,
including changes offered to the interview summaries and report language.

As for the credentials of these individuals, Ms. Sims has more than 30 years experience
working for the Federal Election Commission and then the Election Assistance
Commission. Twenty of those 30 years have been spent working in the area of election
administration, including researching and communicating information on laws,
procedures and technologies used in election administration. She has managed or
assisted in managing projects on election administration issues, conducted either in-house
at the FEC or EAC, or conducted by outside contractors, experts or consultants. These
projects include:



Senator Dianne Feinstein
Senator Richard Durbin
Page 11 of 17

findings. In addition, the draft contained conclusions that were not within the scope of
the project and counterproductive to its purpose. This project was intended to set the
stage for a future comprehensive study of voter fraud and intimidation. This is borne out
in the employment contracts of the individuals appointed to work on the project. They
were to provide a “summary” of existing research, create a working definition of voter
fraud and intimidation and gather recommendations for the methodology of a future
study. Providing conclusions in this study was neither warranted by the caliber of work
done, nor consistent with the goal. The EAC did not want to make unsupported, partisan
conclusions about voter fraud before the agency has a chance to launch its in depth study.
Third, after reviewing the draft text provided by the consultants, it was clear that the
writing of the document was not consistent with the quality and style of other EAC
products, including the fact that the document was written in three different voices (first
person singular, first person plural, and third person plural).

As a part of their contract, the experts were tasked to do several things: 1) review and
summarize existing research on the topic, 2) provide common definitions of voting fraud
and voter intimidation, 3) offer suggestions for how to conduct a thorough study of these
topics in the future based upon these definitions and an initial collection of data, and 4)
convene a working group and report on their comments, deliberations and
recommendations regarding the research effort. EAC’s role in developing a final report
was to highlight these definitions, and provide a roadmap for future study of these
important topics. Specifically, EAC made the following changes:

EAC reorganized the document in the manner that seemed most suitable.
EAC added language to reflect the recommendations adopted by the

Commission.

e The consultants’ draft was written in three different voices, which EAC
corrected.

. EAC added clear definitions of “voting fraud” and “voter intimidation,”
which the consultants did not provide.

. The consultants offered a section of Common Themes near the front of the

document. EAC did not ask for the consultants to provide such
information, and after reviewing all of the data provided by the consultants
determined that the material reviewed by the consultants did not support
their conclusions. Consequently, the majority of the changes and edits
were made to the language in this section.

3. If there were points in the report that the Commission objected to, were
there attempts to work with the contractors to deal with specific concerns? If there
were such attempts, please describe them.

The EAC project manager for this study had many meetings with the experts concerning
their work, their products, as well as the methodology of their research. The experts were
continually provided feedback on their proposed working group members, lists of persons
to be interviewed, as well as having been provided with many, if not all, of the cases and



Senator Dianne Feinstein
Senator Richard Durbin
Page 8 of 17

May 2006 meetings. The following is information regarding their concerns about the
characterization of their comments in the status report:

¢ Craig Donsanto, Director, Election Crimes Branch, Office of Public Integrity,
U.S. Department of Justice expressed some concerns about the accuracy of the
consultants’ summary of their interview with him. Specifically, he took issue
with a statement stating that the Department of Justice had changed course from
pursuing organized conspiracies to pursuing individuals. He provided examples
of current cases against organized conspiracies.

Mr. Donsanto saw this summary among a number of materials provided to
participants in the May 2006 Working Group meeting on this project. He was a
participant because EAC had invited him to be Technical Advisor to the Working
Group based on his 30 years experience in the federal prosecution of crimes
involving elections and his recognized expertise in identifying and developing
successful prosecution strategies for election crimes cases. Margaret (Peggy)
Sims, the EAC Contracting Officer’s Technical Representative (COTR) for this
project was present when the consultants interviewed Mr. Donsanto and, after
reviewing the summary, agreed that there was an error. The summary should
have stated that the Department of Justice, in addition to the continued pursuit of
organized conspiracies, had recently begun to prosecute election crimes
committed by individuals (noncitizen voting, felon voting, double voting) to deter
others from committing such violations. Mr.Donsanto provided his comments to
Peggy Sims and she forwarded them to both consultants.

¢ Both Mr. Donsanto and John Tanner, Chief, Voting Section, Civil Rights
Division, U.S. Department of Justice expressed concern about the accuracy of a
reference to interviews with Department of Justice officials that was included in
an EAC status report on the project presented to EAC’s Standards Board and
Board of Advisors public meetings in May 2006. The status report was based
upon initial summaries submitted by the project consultants, which were written
prior to the first meeting of the Working Group. Specifically, both DOJ attorneys
objected to a bulleted paragraph that states that DOJ officials agreed they were
bringing fewer intimidation and suppression cases. Both attorneys said this
statement was false regarding voter suppression cases and provided examples of
recent efforts against voter suppression. They also noted that in order to
prosecute voter intimidation, federal law requires the act be accompanied by
physical or economic threat. These cases would be criminal violations that would
be prosecuted by the Election Crimes Branch, but that office has not seen such
cases reported in years. (Mr. Donsanto remembered prosecuting only one such
case in 30 years.) The consultants, however, relied on their own, broader
definition of voter intimidation. Mr. Donsanto and Mr. Tanner also noted recent
actions by the Department of Justice as examples of the agency’s efforts against
voter suppression. Mr. Tanner directed his comments to Tova Wang and



04/13/2007 09:03 FAX

10,

Who drafted the Commission summary (released in December,
2006) of the Voter Fraud/Intimidation report, and what were their
credentials and involvement in the original research process?
Were there instructions or guidance given from Commissioners or
senior staff as to what portions of the research should be
emphasized? Who at the Commission reviewed the summarized
report? Since the contracted experts are referred to in the
Commission’s released report, were the contractors allowed a
chance to review or edit that Commission’s final report that was
released in December, 2006?

Please provide copies of any electronic or written communications
between Commission employees that relate to the editing of the
Voter Fraud/Intimidation report.

Please explain what Mr. Job Serebrov was referring to in his email
referenced in the New York Times article of April 11, 2007. Please
provide any documents in the Commission’s possession where
employees or contracted experts discussed pressure, political
sensitivities, or the failure of the Commission to adopt the Voter
Fraud/Intimidation report from March 1, 2006 to present.

While we realize that the Commission voted to release its summary
report in December 2006, was there a public vote taken to reject
the Draft Voter Fraud/Intimidation report? Such a monumental
decision to reject the contract experts’ work is a policy decision,
and one that should be done in public. When was the decision
made to reject the original report, and what notice was provided to
the public that the Commission would reject that report?

Prior to the Draft Voter Fraud/Intimidation report’s release, had
other organizations requested a copy of that original report? Please
include copies of your responses to those organizations, if any.
Had any States requested that the Commission or staff provide
guidance related to voter identification requirements in the Help
America Vote Act, or identification requirements generally?
Please provide those requests, and any responses from the
Commission.

Please indicate what steps the Commission is taking to ensure that
political considerations do not impact the agency’s research and
that decisions are handled in a public and transparent manner.

(006



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Senator Richard Durbin
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DeGregorio received input from members of the Board of Advisors, who expressed
concerns about the ability of the contractors to present unbiased results.

Communications responsive to this question are in the attached documents.

2. Would you please provide a copy of the approved Request For Proposals, as
well as any contract modifications that were agreed to between the Commission and
Eagleton Institute and subcontractors?

The request for proposal, statement of work, and contract as well as all contract
modifications are attached.

3. Can you provide the names and qualifications of Election Assistance
Commission staff that worked on the Eagleton Institute project?

Project manager Karen Lynn-Dyson assumed oversight of the Eagleton voter
identification and provisional voting contract in June 2005. Ms. Lynn-Dyson, who has 25
years of experience and 18 years of experience managing projects, joined the EAC full
time in January 2005 as research manager. Prior to joining EAC, she worked at a
management consulting firm overseeing several government contracts. From 1993 to
2001, she was the project director for the Aspen Institute’s Domestic Strategy Group, a
bipartisan group founded by David Gergen, William Bennett, and former U.S. Senator
Bill Bradley. Ms. Lynn-Dyson began her career as a grant maker at United Way and the
Council on Foundations. She has a bachelor’s degree from Vassar College and a master’s
degree in social policy from the University of Chicago.

Carol Paquette, Interim Executive Director. Ms. Paquette has 40 years of management
and analysis experience. She has organizational management experience in both the
government and private sectors, including prior service as the Director of Administration
for the National Security Council. She served as a government contracting officer for six
years, during which time she was responsible for preparing requirements statements,
developing and executing acquisition strategies for policy analysis studies, information
systems, facility renovation work, and training.

4, Please indicate how many project meetings occurred during the term of the
Eagleton contract, including in-person meetings, conference calls regarding the
status of the report, and any meeting where Commissioners were present for at least
part of the meeting. Please provide copies of any minutes from those meetings.

The project manager, Karen Lynn Dyson, had countless communications with the project
team via email, telephone and in person. During these conversations and
communications, she discussed the status and progress of their work. According to a
review of our records by the project manager, in addition to these informal
communications, there were five in-person meetings (one or more Commissioners were
present at all five); ten teleconferences (one or more Commissioners participated in two



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Senator Richard Durbin
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up to the agency head or commission. The project manager (and those who eventually
worked in her stead) was responsible for determining when the project and report were
complete and responsive, before forwarding the matter to the Commissioners through the
Executive Director. The report that was forwarded to the Commissioners for action was
the report deemed ready by the staff responsible for the project.

Just as with any EAC public meeting, notice was provided of the meeting and the
Commission’s anticipated actions at that meeting in the Federal Register as well as on
EAC’s Web site prior to the meeting.

8. Prior to the Draft Voter Fraud/Intimidation report’s release, had other
organizations requested a copy of that original report? Please include copies of
your responses to those organizations, if any.

EAC has not publicly released the draft Voting Fraud and Voter Intimidation report
provided by the contracted employees in July 2006. That report was provided to
Congress after a requested by Congressmen Jose Serrano, and Maurice Hinchey on
behalf of the House Appropriations Subcommittee on Financial Services. The draft
report was provided to the Committee with the explanation and understanding that the
document was covered by exemption 6 to the Freedom of Information Act, which covers
predecisional or deliberative documents.

Several individuals and groups have requested the release of the draft Voting Fraud and
Voter Intimidation report provided by the contracted employees in July 2006, including
requests from the Brennan Center for Justice of the New York University, the People for
the American Way and Barbara Arnwine (Ms. Arnwine, a member of the EAC Board of
Advisors, also offered a unsuccessful resolution urging the release of the experts’ draft
report). Each of the requestors, with the exception of Congressmen Serrano and Hinchey,
were told that the document was predecisional and covered by the deliberative process
privilege. The public requestors were not provided with a copy of the draft report.

Copies of requests for the draft Voting Fraud and Voter Intimidation report as well as
EAC’s responses have been provided in the attached responsive documents.

9. Had any States requested that the Commission or staff provide guidance
related to voter identification requirements in the Help America Vote Act, or
identification requirements generally? Please provide those requests, and any
responses from the Commission.

This question appears to deal with the Voter Identification Study; however, we respond to
this question as if posed regarding both of the studies around which inquiries were made
in your letter. Our search of communications has not revealed any specific requests from
state or local election officials. However, it is important to note that early on, in February
2005, EAC engaged its Board of Advisors, a Federal Advisory Committee consisting of
members from the election administration, government and advocacy arenas, to comment



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these issues and answer any questions that you may have. I will be contacting your
offices to set up a time that would be convenient.

Thank you for your interest in our research efforts and your work on election
administration issues. If we can provide additional information or answer any questions,
please do not hesitate to call on us.

Sincerely,

Donetta Davidson
Chair



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Senator Richard Durbin
Page 3 of 17

The two experts that were hired served as contract employees of EAC under the authority
of title 5, section 3109 of the United States Code. They signed contracts acknowledging
their status and their responsibilities. They were supervised by an EAC employee who
was in charge of this project. They received support from a variety of EAC personnel.
Their contract also called for the review of their research by a working group.

In July 2006, the experts provided a draft report of their research. The review of that
draft report was delayed by the illness of the EAC staff person in charge of this project
and ultimately resulted in another staff person assisting with the review and revision of
the draft report. EAC adopted its final report at its public meeting on December 7, 2006.

General Research Methodology and Protocol

As you know, the EAC is a small agency. The Commission has but one fulltime
employee dedicated to the management of its research. Because of its limited resources,
the EAC must seek outside organizations and individuals to provide temporary assistance
with regard to its various projects. This is particularly true in the research arena.
However, to date, the EAC has not let a contract requesting a third party to issue an
independent report on a given subject. Instead, the EAC sought assistance in the creation
of a Federal report, bearing the EAC seal. Ultimately, the research that is conducted and
the product that is produced must provide objective clarity to the issue and improve the
administration of elections for Federal office. This policy is clear in each of EAC’s
contracts. EAC contractors or contract employees are tasked to provide a draft product
under staff oversight. This draft product is always subject to review, editing and
acceptance by EAC.

SPECIFIC QUESTIONS

You asked specific questions about Voter Identification and Voting Fraud and Voter
Intimidation Studies. The following responses address each of those questions in turn.

Commission's Oversight on Eagleton Contract to Perform a Study on Voter Identification

1 Did the Commissioners or Commission senior staff receive any outside
communication or pressure to change or not release the entire draft report or
portions of the draft language on the voter fraud report? If so, who made those
requests?

(Our response is made under the assumption that this question refers to the voter
identification study.) According to Project Manager Karen Lynn-Dyson, she did not
receive any outside pressure to change or not release the entire draft report or portions of
the draft language of the Eagleton study of Best Practices to Improve Provisional Voting
and Voter Identification Requirements. Former Commissioners Ray Martinez and Paul



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Senator Richard Durbin
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BACKGROUND
Voter Identification Study

In April 2005, EAC let a contract to the Eagleton Institute of the Rutgers University
(“Eagleton”) to conduct a study on provisional voting and voter identification. The
contract was competitively bid and Eagleton was awarded the contract. This marked the
first contract let by EAC for the research and study efforts. It was intended to produce
guidance under Section 304 of HAVA for provisional voting and “best practices” for
voter identification.

The statement of work for this contract required Eagleton to:

o Collect and analyze state legislation, administrative procedures and court cases to
understand the disparities and similarities between the state approaches and using
that information to provide a baseline for future approaches;

© Conduct an EAC public hearing on the topic of voter identification requirements;

o Recommend alternative approaches for future implementation of HAVA voter
identification requirements; and

©. Prepare preliminary draft guidance document.

The technical proposal submitted by Eagleton proposed to perform these tasks using a
group of researchers from Rutgers University as well as a group of law professors from
Moritz College of Law. Eagleton also proposed using a working group to comment on
the draft analysis and to assist with developing alternative approaches as called for in the
statement of work. Eagleton proposed conducting a statistical analysis of voter turnout in
jurisdictions with and without voter identification requirements; providing a database of
major articles on Voter ID requirements; summarizing case law on voter identification;
and creating a compendium of state legislation, procedures and litigation.

Eagleton briefed the Commission on its work at EAC’s July 28, 2005 public meeting held
in Pasadena, California. Eagleton also briefed the EAC Standards Board and Board of
Advisors at their May 2006 public meetings. Eagleton delivered its draft report in May
2006. EAC ultimately decided not to adopt the Eagleton draft report on voter
identification, but to release the document and its appendixes.

Voting Fraud and Voter Intimidation

As a part of its research obligations under Section 241 of HAVA, EAC determined in
2005 to conduct an initial review of voting fraud and voter intimidation. EAC knew that
this topic was extremely difficult to research, because of the difficulty in obtaining
published information on cases related to these types of offenses. As such, EAC hired
two experts to assist it with identifying and summarizing existing research on this topic,
developing a common definition of the terms voting fraud and voter intimidation, and
recommending methods by which EAC could conduct a comprehensive study of these
topics in the future.



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o Writing the first maintenance and fail-safe voting sections of the FEC’s Guide to
Implementation of the National Voter Registration Act (NVRA);

o FEC reports to Congress on the implementation of NVRA;

o Assisting in the development of FEC’s 1990 and 2002 Voting System Standards;
and

© Participating in all other research projects conducted by the FEC Office of
Election Administration from 1986 to 2003.

Although none of these projects specifically focused on voting fraud or voter
intimidation, these issues were relevant and considered as a part of most, if not all, of the
following FEC research efforts: Absentee Voting: Issues and Options; 1990 Voting
System Standards; 2002 Voting System Standards; and All-Mail Ballot Elections. Ms.
Sims’ work at EAC has included being principally responsible for the distribution of
Section 251 funds and the review and management of the $2.9 billion in Section 101, 102
and 251 funds made available under HAVA.

Ms. Hodgkins is the General Counsel of the EAC and has more than 10 years of
experience in the active practice of law in the areas of labor, employment, elections,
administrative and government law. Prior to joining the EAC she served as the General
Counsel to the Louisiana Department of Elections, where she served as counsel for all
aspects of the operations of that department including the operation of a voting fraud
investigation unit. In addition, Ms. Hodgkins provided training to law enforcement on
voting fraud investigation, reviewed investigations of alleged voter fraud, transmitted
these investigations to local district attorneys for prosecution, and managed outside
counsel in the support of this program. In addition, Ms. Hodgkins represented the
Louisiana Commissioner of Elections in all contested elections — the Commissioner of
Elections was a required party to any and all election contests throughout the state.
Several of these cases involved allegations and testimony of alleged voter fraud.

Mr. Gilmour is the Deputy General Counsel of the EAC and has over eight years of
experience in the practice of law. Prior to joining the EAC, Mr. Gilmour served in the
United States Air Force as a Judge Advocate General. Mr. Gilmour has experience as a
Federal criminal prosecutor, civil litigator and administrative and civil law practitioner.
Mr. Gilmour has been with the EAC for over two years and his experience with the
United States government has been an invaluable asset in establishing EAC’s voting
system testing and certification program, laboratory accreditation program as well as the
general operations of EAC. Ms. Layson has been in the field of communications for 16
years, serving as spokesperson for a member of Congress, a governor and on campaigns
for Governor, U.S. Senate, and the U.S. House of Representatives.

The Commissioners did not offer any specific instruction as to how to review the draft
report and research or what, if any, portions of the report to emphasize. The project
manager, and subsequently those that worked in her place, were responsible for providing
a report for Commissioner approval. Individual EAC commissioners provided some
input during the process, Any communications from Commissioners to staff relative to



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Senator Richard Durbin
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on and help EAC prioritize its research projects. Feedback was taken from that meeting
and used to establish a priority for EAC research efforts. A copy of the minutes of that
meeting has been provided in the attached responsive documents.

10. _ Please indicate what steps the Commission is taking to ensure that political
considerations do not impact the agency’s research and that decisions are handled
in a public and transparent manner.

EAC research projects such as the Voter Identification study conducted by Eagleton are
competitively bid. When research projects call for experts or consultants, EAC attempts
first to find a non-partisan expert or consultant for the job. When one does not exist, as in
the case of the Voting Fraud and Voter Intimidation study, EAC has assembled a bi-
partisan team to conduct the research and product a draft report.

While EAC Commissioners are appointed on a partisan basis — recommended by the
leaders of the two major parties in each of the House and the Senate — EAC staff are not
appointed based on their partisan affiliations. In fact, EAC staff is covered by some of
the most restrictive provisions of the Hatch Act. See HAVA, Section 811. The staff of
this agency has been chosen for their expertise and experience in the field of election
administration, in managing research projects, or in developing and operating a
government agency. All statements of work for major research projects have been
approved by the bipartisan Commission. These statements serve as the direction for both
the EAC staff and for the contractors, experts and consultants to conduct their work.
EAC staff is expected to produce a product using the outside contractors, experts or
consultants that completes the goals and objectives of the study as established in the
statement of work.

EAC also uses its Federal Advisory Committees, the EAC Standards Board and EAC
Board of Advisors, to vet and react to many of the research projects that it has ongoing.
These are public bodies and their meetings are conducted in public. A status report
regarding the Voting Fraud and Voter Intimidation project was presented at the public
meetings of the EAC Standards Board and EAC Board of Advisors in May 2006. These
meetings were noticed and open to the public. The board was, in fact, critical of the work
of the contract employees as of that date.

EAC has voted to adopt, or in some cases not adopt, the results of its research projects in
a public forum, whether that be through its public meetings or through its tally voting
procedure, which is available to the public and on which EAC reports in each of its
annual reports to Congress. Last, EAC has developed a bi-partisan subcommittee on
research to review and guide EAC’s current and future research efforts.

CONCLUSION

We, at EAC, have been pleased to provide you with information regarding these two
research efforts. In addition, we would like the opportunity to brief you and your staff on