[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
2004 ELECTION AND THE IMPLEMENTATION OF
THE HELP AMERICA VOTE ACT
=======================================================================
HEARING
before the
COMMITTEE ON HOUSE ADMINISTRATION
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
HEARING HELD IN COLUMBUS, OH, MARCH 21, 2005
__________
Printed for the Use of the Committee on House Administration
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COMMITTEE ON HOUSE ADMINISTRATION
BOB NEY, Ohio, Chairman
VERNON J. EHLERS, Michigan JUANITA MILLENDER-McDONALD,
JOHN L. MICA, Florida California
JOHN T. DOOLITTLE, California Ranking Minority Member
THOMAS M. REYNOLDS, New York TOM BRADY, Pennsylvania
CANDICE S. MILLER, Michigan ZOE LOFGREN, California
Professional Staff
Paul Vinovich, Staff Director
George Shevlin, Minority Staff Director
HEARING ON THE 2004 ELECTION AND THE IMPLEMENTATION OF THE HELP AMERICA
VOTE ACT
----------
MONDAY, MARCH 21, 2005
House of Representatives,
Committee on House Administration,
Washington, DC.
The committee met, pursuant to call, at 10 a.m., in the
Finance Hearing Room, Senate Office Building, Columbus, Ohio,
Bob Ney (chairman) presiding.
Members present: Representatives Ney, Millender-McDonald
and Tubbs-Jones.
Mr. Chairman. I want to thank everyone for coming. Also I
want to thank you for your indulgence. We had a vote last night
and I did my best to get here. Three airplanes later, due to
mechanical problems, I am here. I apologize for something out
of my control; it is a pleasure to be here. Again, I want to
say how much I appreciate the Clerk of the Senate Matt Schuler
and all the staff of the Senate making the use of this room
possible. This used to be my office over to my left when I was
Chairman of the Senate Finance Committee so this is old home
week. This was the temporary floor of the Senate. It is always
a pleasure to be back here in the legislature where I got my
start before I left for the U.S. House.
The Committee will officially come to order. We are meeting
here today, in Columbus, to take a look back at how the 2004
election was conducted in Ohio, and to hear about how the Help
America Vote Act, known as HAVA, is being implemented in this
state.
We have already had hearings in Washington, D.C., and will
have hearings throughout the different parts of the country.
During the course of this hearing we hope to learn more about
what went well during the most recent election and what needs
improvement. By gaining greater understanding about what
happened in the past election, we hope we will be able to
assure the effective administration and successful operation of
Ohio elections in the future.
On November 2nd of 2004 our nation conducted the first
federal general election governed by the requirements and
instructions set forth in the Help America Vote Act of 2002.
The Help America Vote Act was a landmark legislation reform law
that established new election administration standards that
each state must meet. It also provides crucial federal dollars
for the first time in the nation's history, to assist states
and localities in updating and improving their voting systems.
The Help America Vote Act specifically grants states and
localities broad latitude to interpret and implement its
provisions in ways that take into account unique local
circumstances in each community. I am proud to have been the
author of this important piece of legislation, along with
Congressman Steny Hoyer, who is also the Democrat whip of the
U.S. House, and Senators Chris Dodd, Mitch McConnell, and Kit
Bond. I believe that the Help America Vote Act will greatly
enhance the health of our democracy. HAVA had a great
bipartisan vote, and a lot of members involved in putting the
bill together.
As Election Day 2004 approached, election officials across
the country faced numerous logistical challenges. Nowhere were
those challenges more apparent than here in our own state of
Ohio.
First of all, Ohio was the target of aggressive voter
registration drives, many of which were conducted by outside
groups that paid their employees per person that they
registered. These drives resulted in election officials having
to process and handle a greater than usual number of voter
registration forms, a substantial percentage of which were
submitted at or just before the prescribed deadlines, and
several of which were defectively or fraudulently thrown out.
This placed an administrative burden on Ohio's election
officials. In addition, election officials confronted the
highest rates of voter turnout since 1968. The Committee for
the Study of the American Elector estimates that roughly 120
million citizens cast ballots in the most recent federal
election--nearly 15 million more voters than in 2000.
In Ohio alone, the turnout rate was over 10 percent higher
than the rate during the previous presidential election cycle,
which translated into almost one million more Ohioans voting in
2004 than in 2000.
Finally, during the past election cycle Ohio had an
extensive debate about the security of direct recording
electronic devices, known as DREs, voting systems and
ultimately passed a law requiring DREs to produce a voter
verified paper audit trail, or VVPAT.
Without getting into the merits or demerits of the new law,
it is safe to say that the paper trail debate and the new VVPAT
requirement removed the possibility that Ohio could replace its
punch card systems with more reliable voting equipment in time
for the 2004 election.
In the weeks and months leading up to election day, we
heard scores of gloomy predictions about an impending electoral
meltdown in our state. We were told that voting equipment
malfunctions would be widespread, delaying the reporting of
election returns, and potentially losing thousands upon
thousands of votes.
There were also allegations that a mass voter intimidation
and suppression effort would disenfranchise many voters. Some
forecasted that all these factors would combine and create a
perfect storm that would paralyze the country's election
systems.
Thankfully these gloomy predictions did not come true as
the Associated Press reported. The big surprise of the 2004
election was that, for the most part, the voting went smoothly.
By the close of the polls across the country, despite heavy
voter turnout, there were only scattered reports of equipment
trouble and human error at the voting stations, and none were
major.
This assessment was confirmed on election night by Joe
Lockhart. Normally I don't quote Joe but I will today, the
Kerry campaign spokesman and strategist who said, ``We think
the system has worked today. There were thousands of lawyers
deployed to make sure that no one tried to take advantage or
unfair advantage and by in large it has worked. I have seen
very few reports of irregularities and even the ones we have
seen after a little investigation you will find there is not
much going on.''
Thus, to paraphrase Mark Twain, the rumors of the demise of
the American electoral system in general, and the Ohio system
in particular, are greatly exaggerated.
For this, we must give enormous credit to the state and
local election officials in Ohio, on both sides of the isle,
for their hard work and extensive planning in preparation for
this year's election. We must also express tremendous gratitude
to the thousands of volunteer poll workers and election judges,
without whom the election process could not function. The
accomplishment of those involved in the administration of this
year's elections are especially impressive in light of the
intense scrutiny under which they were operating.
All of this is not to suggest, however, that no problems
whatsoever were evident in Ohio during the 2004 election. There
were some difficulties. As in any undertaking involving
millions of people taking place on a single day in a large
state such as ours, there are bound to be some mistakes. It is
important that we learn from those mistakes so that they aren't
repeated.
However, contrary to the overheated assertions of some, the
voting problems that occurred in the state, I feel, did not
disproportionately impact the voters of one party nor the
other, but rather affected voters through all political
parties, Democrats, Republicans, and Independents alike.
Again, we want increased voter registration. In terms of
the Help America Vote Act, it directly affected a lot of issues
but it did not particularly impact the exact particulars of how
the state of Ohio, for example, would register people to vote
and still follow state laws.
I think that with HAVA's voting system standard set to go
into effect in just over eight months, I am especially
interested today to hear from a good panel of legislators in
discussing how Ohio will meet the compliance deadline. As I
mentioned earlier, the paper trail to date the new VVPAT law
has significantly delayed Ohio's acquisition to voting
equipment as well as its ability to come into compliance with
HAVA's voting systems.
Consequently, there is an urgent need for Ohio state and
local election officials and leaders in the state legislature,
to sit down and with colleagues and figure out how to resolve
the situation.
We are fortunate to have a number of distinguished
witnesses with us today, many of whom were at ground zero of
the most recent election. Our witnesses include a fellow member
of the Ohio Congressional Delegation, Congresswoman Stephanie
Tubbs Jones, who we serve with in our nation's Capital, our
distinguished Secretary of State, members of the Ohio
legislature who will be introduced, local election officials
from across the state, and scholars on issues relating to
Ohio's election.
Before yielding to our Ranking Member, I want to thank
Senate President Bill Harris for making this room available
again for today's hearing. It is a little bit of deja vu for me
because of the years that I served here in the legislature.
Before yielding to our Ranking Member, I want to thank
Congresswoman Millender-McDonald from California, who is our
Ranking Member of the House Administration Committee. It is the
smallest committee of the U.S. House, with six Republicans and
three Democrats.
We are directly appointed by the Speaker of the House Denny
Hastert, and our Ranking Member and her colleagues are directly
appointed by Leader Nancy Pelosi of California. We represent
the two leaders of the U.S. House. We oversee the Library of
Congress, the Smithsonian and parking spaces, which is a big
deal in Washington, D.C. We are trying to diminish that.
I have enjoyed working with my colleague Juanita Millender-
McDonald on the serious matter of election law, as she has been
a real supporter of the institution of the House. She is our
new Ranking Member. I really appreciate her time in traveling
all the way here to Ohio.
Gentlelady.
Ms. Millender-McDonald. Thank you so much, Mr. Chairman,
and thank you for convening this field hearing in your home
state of Ohio, as well as the Congresswoman who is before us. I
would like to also thank the Ohio officials and state staff for
their generosity in allowing us to be here today.
I hope to continue the dialogue and review of how the Help
America Vote Act was implemented and how the first post-HAVA
election was conducted. We must take our hearings wherever
necessary to help the American people regain their confidence
in our electoral process.
Ohio was at the epicyte of the 2004 election. It was on the
news virtually every day for weeks, both before and after the
election ultimately giving President Bush the victory for a
second term by less than 120,000 votes. While the margin of
victory was outside the parameters of litigation, it does not
mean that we should ignore the problems that were reported.
As a former educator, I hope that the nation and Congress
will learn from this past election and the lessons from Ohio.
In the 107th Congress this Committee was the driving force in
passing legislation to ensure that the problems brought to bear
during the 2000 presidential election were not repeated. After
that election we heard reports of a wide range of voting
frustrations and irregularities.
Most common were punch cards with hanging or pregnant chads
and voters were turned away from the polls without being given
the opportunity to cast a vote. With the passage of HAVA 3.9
billion dollars were authorized to the states to improve the
voting process marking for the first time in our nation's
history that the Federal Government paid for the administration
of federal elections.
Additionally, states have shown that the entire burden of
cost, sometimes having to decide among funding and maintenance
of roads and infrastructure, the construction of schools or the
management of elections. The Federal Government has provided
three sources to alleviate these very important concerns.
Ohio ranks fourth among all states and territories in total
money received from HAVA. However, HAVA is not a blank check.
States will only receive money if they can demonstrate
compliance with HAVA's strict requirements. Yet, despite the
HAVA intent, some of the same problems brought to light in 2000
occurred again in 2004. These problems were not unique to Ohio.
According to the Election Reform Information Project a
nonpartisan/nonadequacy organization providing news and
analysis on election reform, the problems range from long lines
at polling stations to a shortage of machines to misinformed
poll workers.
The Committee worked tirelessly to enact HAVA as a solution
to these and other election concerns. The Help America Vote Act
set standards so voters were not turned away from the polls
without casting a vote. Also, that voters not listed as
registered must be given a provisional ballot to be verified
later and counted. Unfortunately, these were reported that
eligible voters were being turned away from the polls without
casting a provisional ballot.
Further, many overseas and military voters reported that
they did not receive their ballots in time to vote. Some did
not receive their ballots at all. We can, and we must, do
better. Especially for our men and women fighting for democracy
in Iraq, Afghanistan, and around the world. My staff had the
opportunity to speak with many numbers of Americans living
abroad and listened to their voting experiences.
Although the 2004 elections have passed into history, many
questions are still unanswered and electoral issues need to be
discussed. The electoral process is not perfect. Improvements
to the electoral process still need to be made. Fortunately,
the Help America Vote Act of 2002 is a solid foundation upon
which we can institute further electoral improvements.
I would like to stop to thank this Chairman and the Ranking
Member then, Congressman Steny Hoyer, for their leadership on
bringing such an important piece of legislation as HAVA to the
country because it has made a difference in many states and we
are hoping that it continues to make a difference.
HAVA was to make it easier for voters to cast a vote and
harder for people to knowingly commit fraud. It has eased the
financial burden of state space in preparing for and
administering federal elections. In addition to providing the
$3.9 billion to the states, HAVA requires that state election
officials accomplish two landmark goals by the beginning of
next year.
First, every voting precinct in the United States must have
at least one voting machine or system that is accessible to
individuals with disabilities. This mandate will allow many
disabled voters to cast secret ballots for the first time.
Second, by the start of 2006 every state must implement a
uniform centralized computerized statewide voter registration
list.
Beyond my continued support of HAVA I wish to make it clear
that I will continue to fight for additional funding to the
Election Assistance Commission, EAC. The EAC has started a
valuable service to our nation as a clearinghouse for all
matters relating to federal elections. Among other
accomplishments the EAC has partnered with the National
Institute of Standards and Technology to develop voting system
guidelines, issue best practice procedures to the states, and
distribute billions of dollars to improve the election process.
I would like to also acknowledge the work of all of the
county and local elected officials who will be represented by
the witnesses here today. They are the ones who carry out the
day-to-day operations of administering the elections. I look
forward to the hearing today, Mr. Chairman, from these
experienced people who have implemented this landmark
legislation.
Before I do that, I would like to read just an excerpt from
the Christian Science Monitor that was stated by President
Lyndon Johnson 40 years ago. ``At times history and fate must
meet in a single place to shape a turning point in man's
unending search for freedom and justice.''
We have come today because this is the turning point of
this last election. We must restore voters' trust. We must
mitigate the voters' cynicism that has arisen among voters
regarding voter irregularities. We must continue to move
forward so that the threat of litigation and voter outrage does
not continue in place.
Access is what the Voting Rights Act of 1965 presented to
us. It was supposed to do just that. Forty years today we are
still seeing that people do not have access to voting and the
proper machines for voting. I maintain that voter confidence
and encouraging greater voter turnout is what this Committee is
all about. We feel compelled to have hearings across this
country to hear from your neighbors, your families, local and
state-elected officials regarding this last election.
I would like to again thank my Chairman, the Chairman of
the Committee on House Administration, for convening this
hearing and I look forward to the witnesses, Mr. Chairman.
Thank you.
Mr. Chairman. Thank you, gentlelady, our Ranking Member,
for your thoughtful statements and, again, your time here in
Columbus, Ohio.
We will go on to our colleague Congresswoman Stephanie
Tubbs-Jones.
STATEMENT OF CONGRESSWOMAN STEPHANIE TUBBS-JONES
Ms. Tubbs-Jones. Thank you. I would like to thank the
Chairman, Bob Ney, and the ranking member representative
Juanita Millender-McDonald for giving me this opportunity to be
heard. I am so pleased and I thank both of you for being
persons of your word by saying that you would host hearings in
Ohio and so doing.
I am proud to be a representative of the 11th Congressional
District of Ohio and proud to be here this afternoon. Though my
conduct has been labeled disgraceful, foolish, nasty, and
disingenuous, I sit here very proud to have stood before the
United States of America and the world on January 6th objecting
to the electoral votes of Ohio at that time.
I was very proud and pleased that I have an opportunity as
the first African-American woman to serve in the House of
Representatives from Ohio to stand on behalf of voters across
this country to get the Congress just to stop for a moment and
say that we need to pay attention to what happened in the
election of November 2004 and let the many young men and women
across this country who registered to vote for the first time
and for some reason their vote was not counted to say,
``Someone is thinking about you. We want you to register again.
We want you to come out and vote.''
All that is being said, Mr. Chairman, and Madam Ranking
Member, I am going to move to something which I believe as
important is a piece of legislation that I introduced this year
with my colleagues from the Senate, Senator Hillary Rodham
Clinton, Senator Barbara Boxer, Senator Frank Lautenberg,
Senator John Kerry.
The legislation is called Count Every Vote Act of 2005. The
legislation in my mind, and along with my colleagues, we
believe it addresses many of the issues that were raised in the
election in November of 2004 not only in Ohio but across this
country.
Let me reiterate that many of the activities that occurred
in Ohio happened in other states and there were other people
who wanted to stand up and talk about what happened in their
election and didn't have the opportunity. I have to for the
record say thank you to Senator Barbara Boxer for giving me
that opportunity.
Ms. Millender-McDonald. From the state of California no
less.
Ms. Tubbs-Jones. From the state of California. Correct. Let
me put that on the record.
I also would ask for the record that my statements from
that day on January 6, 2005, be considered as part of this
record. That way I don't have to go through those statements
again.
Mr. Chairman. Without objection they will be made part of
the record.
Ms. Tubbs-Jones. Thank you, Mr. Chairman. Title I of the
Count Every Vote Act speaks to individual voter verification
for all and requires all voting systems to produce a voter
verified paper record for use in manual recounts. It requires
that at least one machine per precinct must provide for paper,
audio, and pictorial verification and must be accessible to
language minorities. It provides for a mandatory recount, a
vote of verified paper records in two percent of all polling
places or precincts in each state.
It goes on to provide for improved security measures for
electronic voting machines. It goes to reduce voting errors in
voting machines and requires that all voting systems meet what
is called a residual vote benchmark to be established by the
Election Assistance Commission.
Title II provides for provisional balance and I think that
is an area that we in Ohio know was very controversial. It
requires provisional ballots to be counted statewide, allows
ballots that are cast in the wrong precinct or the wrong county
to be counted for all eligible races so long as the voter is
registered in the same state.
All of the issues that happened in the Ohio election and
that occurred across Ohio is the fact that in one voting
location there can be more than one precinct. Conceptually I
could be in the right church but in the wrong pew and not have
my vote counted. That is one of the reasons we wanted to make
sure that provisional balloting was addressed in the
legislation.
Title III provides for an amendment to the HAVA Act
preventing long lines at the polls by mandating that the states
meet minimum standards established by the EAC for required
number of voting systems and poll workers for each precinct.
I know it has been argued that there were plenty of
machines and people didn't have any problem but poll workers
were vested with the opportunity to set up as many machines as
they chose to. If they chose not to set up all the machines
that were available in the voting place, it ended up requiring
long lines.
It provides no excuse absentee voting meaning that you
don't have to give a reason to ask for an absentee ballot which
will reduce the number of people voting on election day. It
provides for improvement of public records and partial election
observers, election day registration such that people coming to
the ballot box can register on election day.
Another provision which will address the whole issue of
having too many people in lines is early voting. It requires
early voting in every state. It requires fair and uniform voter
registration and identification and partial election
administrators. It specifically makes it unlawful for the chief
state election officials or those who own or serve as the CEO,
COO, CFO, or president of an entity that designs or
manufactures a voting system to take part in certain prohibited
campaign activities with respect to any election for federal
office.
Appearance is one of the issues that we always have to pay
attention to. In fact, it may not be a problem but the
appearance of impropriety is always something we want to take a
look at. It provides for civic participation by ex-offenders.
Ohio is way above the curve. We allow ex-offenders to vote but
many states do not. Finally, it provides for a holiday for
voting such that people who want to have the opportunity to
have a holiday.
I am out of time. I know that there are witnesses that have
traveled a long way and I have an opportunity to put
information in the record. I just want to say on behalf of all
the people of Ohio and people across this country, Chairman
Ney, Ranking Member Millender-McDonald, thank you for coming to
Ohio. Thank you for allowing people across the state to be able
to come and testify about what happened because many things
occurred in Ohio and you can't recount what was never counted.
Thank you very much for the opportunity to be heard.
Ms. Millender-McDonald. Mr. Chairman, with unanimous
consent, may be allow Congresswoman Stephanie Tubbs-Jones to
join us here on the dias.
Mr. Chairman. I have no objection.
Ms. Tubbs-Jones. Thank you very, very much. I appreciate
it.
Mr. Chairman. Thank you for your testimony. I would defer
questions. We have a panel of legislators and we will get to
you. I thank you for your testimony. We have a lot of bills
that have been introduced. Come up here and take a look at the
legislation.
We will move on to the second panel. We have Senator Randy
Gardner, Senator Jeff Jacobson, and Representative Kevin
DeWine. We appreciate the service you do for the people of
Ohio. I think Senator Gardner has a time problem. Correct,
Senator?
Mr. Gardner. Half hour. I don't know if you would expect me
to be here for longer than that anyway.
Mr. Chairman. That is my problem. Well, the airline. We
will begin with Senator Gardner.
STATEMENTS OF SENATOR RANDY GARDNER, OHIO SENATE; SENATOR JEFF
JACOBSON, OHIO SENATE; REPRESENTATIVE KEVIN DeWINE, OHIO HOUSE
OF REPRESENTATIVES
STATEMENT OF SENATOR RANDY GARDNER
Mr. Gardner. Thank you, Mr. Chairman, members of the
Committee, thank you for coming to Ohio and returning, of
course, to Ohio, Mr. Chairman. I served eight years with
Senator Ney in the 1980s and 1990s. It is good to be with you
again.
I have submitted per the Committee's request some documents
that actually were 2004 documents, some recommendations that I
had made as Chairman of the Joint Ballot Security that actually
met in this very room and had 22 hours of hearings and many
witnesses, dozens of witnesses over eight hearings, and made
recommendations to the general assembly. I will touch on that
in my prepared remarks.
An article that I submitted to Secretary of State Ken
Blackwell's publication last summer that highlighted some of my
key positions on the matter of the voter paper trail and we
will discuss that briefly. As well, I don't know if I submitted
this or not but pay attention to the March 3, 2004 letter that
was signed by Congressman Ney and Congressman Hoyer, Senator
McConnell, and Senator Dodd, some of the principal authors of
the HAVA act and outline some of the concerns with respect to
the debate we had in Ohio over the voter verified paper audit
trail.
With that, Mr. Chairman, I would like to utilize these
documents and say first of all that Ohio has a long and proud
and strong tradition of bipartisanship when it comes to
administering elections. We have 176 Republican board members
and 176 Democrat board members throughout the state who took
their responsibilities in the last election in this state very
seriously and conducted a very fair and very honorable election
that we are proud of in this state.
As I am reminded, Congressman Casey used to always say,
``This is earth and there is nothing on earth that is
perfect.'' I appreciate the fact that you have come to this
state today and that we are here today to talk about ways that
we can make what will always be an imperfect system that much
better for the people that we serve.
I would specifically, Mr. Chairman, like to point out that
when I chaired the Joint Committee on Ballot Security I had
announced to the public that my philosophy is to not have the
Chairman dictate the outcome of any committee hearing or any
committee process. The ultimate vote on whether we should
require in Ohio a voter verified paper audit trail was seven to
one and the Chairman was the lone dissent on that issue.
At least I adhere to my principles, Mr. Chairman. We did
implement a mandate that I believe was not the best public
policy in this state in legislation in 2004. I believe we
should revisit that mandate. We should, in fact, either repeal
it or ask Congress to consider an extension of some of the HAVA
guidelines and rules so that Ohio can most appropriately move
forward in the future.
I would also like to point out that the issue of the
verified paper audit trail is interesting in that those who
have concerns about the electronic voting system, or DREs, seem
not to have any concern to add more complexity to an already
complicated system which I think makes that new system if it
were to be established even more unreliable than some of the
concerns in the first place.
I think the final thing I would like to say, Mr. Chairman,
is concerns on both sides to become sometimes extreme. The one
thing that I asked you for, and I think sometimes people are
too cynical about politics and they think money is at the root
of every decision that gets made, the question I would have for
those who attempted to portray some of the concerns and
protests in Ohio in the last year with respect to electronic
voting machines and DREs, the Ruckus Society from Oakland,
California, came to Ohio as part of a protest.
I asked the question before and I think it is relevant for
those that ask why we make decisions and whether money
influences us is to who paid for the Ruckus Society to come to
Ohio and protest against the Ohio voting system? Was that
voting machine companies that might benefit from a different
system? Was it members of the Democratic party or the officials
or the party operatives who paid for those visits? I think
those are fair questions to ask and then hopefully we can come
together as Republicans and Democrats to provide the best
system possible for this state. I am honored to be a part of
the panel discussion today and I look forward to answering
questions after my colleagues have made their presentations.
Thank you, Mr. Chairman.
Mr. Chairman. Thank you, Senator. Thank you for your time
today.
Senator Jacobson.
[The statement of Mr. Gardner follows:]
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[GRAPHIC] [TIFF OMITTED] T0790A.003
STATEMENT OF SENATOR JEFF JACOBSON
Mr. Jacobson. Thank you very much, Chairman Ney, and
members of the Committee. I appreciate your interest in Ohio.
Like so many other Ohioans I spent a lot of time talking to the
air, to my television, or the Internet wanting to tell you all
what we think of some of the things or answer some of the
questions you may have. Rarely do we have the opportunity to do
so so I appreciate that.
My first question in looking at the 2004 election was why
Ohio? What exactly made Ohio the poster child for questions
about the election? Clearly there was attention on Ohio because
Ohio was in the news before the election day. If you look at
the outcome of the election, certainly the state of Wisconsin,
which had it gone the other direction would have been
sufficient to decide the race without Ohio.
Wisconsin had more severe issues that were directly
connected as the Minneapolis Star Tribune's investigation has
shown with the election day registration and the inability to
verify or even come up with any plausible way that many of the
people who registered, thousands of them, in fact, would
actually have had a legitimate address and could in any way
have been determined to be a legitimate voter.
Of course, it went the other way and finding extra votes
was not on the media's mind nor on the activists minds. The
issue was how to take away votes. But the Count Every Vote Act
that was described to us earlier I believe would make that
problem even worse and extend it beyond Wisconsin to the rest
of the nation.
Washington State where time and again their election
workers of a partisan administration discovered multiple caches
of uncounted votes. That would never have happened in Ohio. It
is impossible for what happened in Florida four years ago or
what happened in Wisconsin or Washington State to have happened
here.
The main reason is because we have bipartisan, local,
independent Board of Elections. While the Secretary of State
picks the members of the boards, he does so based on the
recommendations of the local parties. If he removes someone, he
replaces them again with someone recommended by the local
parties.
I know this well as a former county chairman, and a former
member of the local Board of Elections of Montgomery County. I
was particularly disappointed in some of what happened in
Congress in attacking the Ohio outcome because it involved
people who were from Ohio who knew exactly how our boards of
elections operate, I wish I could have defended them on the
basis that it is true that Democrats watch what Republicans do,
Republicans watch what Democrats do, and because of that, the
opportunity for one side or another to change the outcome of an
election is impossible.
The fact that there was litigation brought exactly on that
fact is, to me, one of the most disgraceful things that
occurred in the 2004 election and ranks right up there, in my
opinion, with the decision by then Vice President Al Gore to
try to manufacture a change in the Florida election in 2000.
Both together, I think, have contributed to a situation where
people of good will now have to find themselves wondering
whether we can again have an election for which all people will
accept the outcome.
I was a member of Senator Gardner's election committee here
on ballot security and I do wish to state that I don't like
DREs. I don't like them because they are not transparent unlike
punch cards. You can hold a punch card to the light and see how
someone voted or, as they did in Florida, see how someone might
have intended in Florida had they really did what I wanted them
to. Where you have optical scan ballots, you can look at those
ballots and determine how someone voted. With DREs you have to
hope that the machine accurately recorded it.
I do a lot with computers. I understand how they work and
that is why I so strongly supported having paper trails to
bring transparency to what otherwise would not be transparent.
However, DREs take a long time to use and the direct
consequence would be longer lines no matter how you look at it.
The money that was given to Ohio has not been sufficient to do
all that you wish.
I thank you for the opportunity to testify and look forward
to working with you again in the future.
Mr. Chairman. Thank you very much, Senator, for your
testimony.
Representative DeWine.
[The statement of Mr. Jacobson follows:]
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STATEMENT OF REPRESENTATIVE KEVIN DeWINE
Mr. DeWine. Good afternoon, Mr. Chairman. Thank you for the
opportunity to testify before the Committee on House
Administration. I appreciate the leadership efforts of the
Chairman, the Ranking Member Millender-McDonald, and members of
this Committee and congressional leaders to improve the
election's process in our country and to ensure the United
States remains a model for democracy.
I would also like to thank the Committee for coming to
Ohio. The state has a solid history of well-run elections as
well as an energized and active electorate which I believe
makes it a compelling study for Congress.
The November election was undoubtedly one of the most
scrutinized in recent history, particularly here in Ohio.
However, as has already been mentioned, with the leadership and
professionalism of our bipartisan election officials, Ohio's
system withstood the pressure of a major election and we were
able to avoid the chaos which ensued elsewhere in the nation
during the 2000 election.
As mentioned by others, our system is not without its
faults. With minor changes, however, I believe we can minimize
risk. Most of us heard concerns during last year's elections
from voters, boards of elections and poll workers. As such, the
general assembly is seizing the opportunity to update and
strengthen our system of elections. These efforts are found in
part in House Bill 3 which I introduced in an effort to
modernize Ohio's election laws.
House Bill 3 makes important clarifications to Ohio's
election laws and brings the state into alignment with HAVA.
House Bill 3 codifies rules for casting a provisional ballot to
align Ohio's provisional system with HAVA. The HAVA procedure
allows a citizen whose eligibility is challenged or whose name
does not appear in the poll books to cast a provisional ballot.
This system differs from the current Ohio procedure which only
allows those citizens who have moved and have failed to submit
a change of address form to vote provisionally.
House Bill 3 seeks to codify the HAVA requirements for
voter identification which requires first-time voters who
registered by mail to provide a form of identification when
they cast their ballot or at the time they registered.
Additionally, in an effort to further curb voter fraud, the
general assembly is also considering whether to require a voter
to provide identification at each and every election.
Finally, House Bill 3 compels the Secretary of State to
develop a computerized statewide voter registration database as
required by HAVA. Procedures for managing this database must be
established in order to remove ineligible voters in a
nonpartisan fashion while giving the voter proper notice and an
opportunity to provide accurate registration information.
Outside of the scope of HAVA compliance discussions have
been underway to address a number of broader election issues.
Ohio's election calendar is in desperate need of an update.
Concerns have been raised about the very short time frame in
which pre-election voter registrations must be received and
resolved.
The current system begins on the 11th day before the
election. This clearly does not allow enough time for proper
notice and hearings. We are looking into further ways in which
we may improve the timing of the election process to ensure
that voters have ample time for ballot access and boards of
elections have ample time to process all the information and
ensure its accuracy.
As I mentioned earlier in my testimony, House Bill 3 aligns
Ohio election with HAVA in terms of who is eligible to vote by
provisional ballot. Beyond that, the general assembly is
working to codify the uniform standards and procedures
necessary to clear a provisional ballot including jurisdiction,
how and when to count a provisional vote, the form in which the
provisional is submitted, and the instructions to the poll
worker and the voter.
The general assembly is working to revise the laws and
procedures that relate to election day activities and conduct
in and around the polling location. Above all else each of us
should strive to preserve the rights of voters who come to the
polls. Unfortunately, each and every one of us have reports of
voter harassment and intimidation that occurred on election
day, as well as inappropriate behavior inside the 100-foot line
and even inside the polling location.
That kind of behavior is unacceptable and will be further
addressed in this legislation. We are also clarifying the
statute to allow for witnesses and challengers to be present at
the precinct, the Board of Elections on election day, and
during the count or recount of all ballots.
In my opinion much of the wrangling generated during last
year's election was in part the result of directives from the
Secretary of State's office. I don't believe that the content
of these directives created as much of a problem as did the
timing of these directives. Many directives were issued very
close to or on election day.
I will tell you it doesn't matter which party controls the
Secretary of State's office. Last-minute directives will
automatically result in a hostile reaction by the party that is
not in charge. That reaction borne out of natural suspicion of
the other party will likely result in litigation. House Bill 3
will bring the needed specificity to Ohio election laws while
still providing the Secretary of State's office the needed
flexibility to deal with pressing election matters in real
time.
I cannot reiterate enough how important it is that all
Ohioans have confidence in the election system. It is incumbent
upon Government officials, federal, state, and local to make
the process more seamless, accessible, and transparent to all
voters.
Once again, Mr. Chairman, I thank you for the opportunity
to testify before you today and look forward to the Committee's
questions.
[The statement of Mr. DeWine follows:]
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Mr. Chairman. Thank you for your testimony and for your
perspectives on HAVA. One thing that I just wanted to clarify
is that as we drafted the Help America Vote Act, Carson, Hoyer
and I personally talked to committee groups, Secretary of
State, election officials, and civil rights advocacy groups.
This was the first time we enacted such legislation in the
nation's history. We had a commission, led by Jimmy Carter and
Gerald Ford who called this voting rights act one of the
greatest civil rights measures that Congress could have passed.
I do believe we had to federally pass provisional voting.
People were disenfranchised. I think there were things, for
example, like the mandate for the person with a disability,
that we improved. For the first time in the nation's history
and the first time in people's lives, the blind have been able
to vote in secret.
I think there were things we had to do federally or it
would not have been done. Now, we have tried not to overdue it
in the sense that we all agreed, Democrats and Republicans. We
agreed we would not have an election commission that would make
daily rules and regulations, but that we would prompt change,
at the state level.
We asked these groups how much money they wanted, but
there's more to it than money. Money is important, but it is
not the entire legislation by any stretch of the imagination.
It went beyond punch cards. When we asked them, they agreed
that if we funded $3.9 billion, then this would not be an
unfunded mandate.
We also talked to MCSL. Carson, Hoyer, and I were former
members of the legislature, as a lot of bar members that voted
on this were. The bottom line is we were told $3.9 billion. As
of today we have got $3 billion out there in the pipeline. $900
million is yet to be achieved, and I believe we will achieve it
this year. We want to get to that $3.9 billion. I believe if
the Help America Vote Act never occurred, states still would
have modernized as a result of the controversy of the punch
cards.
Katherine Harris was Secretary of State and they moved
immediately afterwards. Florida did, Georgia did. I can name
states that were moving on their own without the Help America
Vote Act. I believe that eventually the states would have to
put some money in, so we put some money in. Again, I just want
to make it clear that we never said we would pay for every
single machine.
Now, Ohio added a paper trail. I don't want to debate all
day the paper trail, but Ohio added the paper trail, because
you have to have that paper trail. Ohio then added another
additional requirement. Was there any thought to adding more
money because the paper trail requirement was added. The Help
America Vote Act never required each state to have a paper
trail. Now, if you want to have one, it didn't forbid it. I am
just saying that it is a significant issue because if you are
going to add that, you will add another layer of cost.
Mr. Jacobson. Thank you. As one of the most vocal
proponents and early proponents of it, I will tell you that one
of the problems that we had was trying to estimate, first of
all, how many machines were appropriate. That was a problem
from the beginning. With DREs you deal with the fact that not
every voter knows how to operate a computer, though we are used
to it more with ATMs.
We were concerned at the ratio that was suggested, 200 to 1
would be insufficient to start with. Since then we had a lot
more voter registrations because of the 2004 General Election.
We have a lot higher turnout from those new registrations than
has ever been experienced before in terms of turnout.
I think that has a lot to do with why there were long lines
because no one could anticipate the double effects when they
were deploying machines, etc., making decisions at the local
level. I think what happened is that the Secretary of State
when the time elapsed for the election said 1 to 200 is no
longer good enough to prevent long lines. I agree with that.
Furthermore, we have to have more machines because we have more
voters. Those two things coupled together, more than the extra
cost associated with the paper trail, is what makes the money
insufficient. I think there is a way to do it and I think we
can do this without necessarily resorting to DREs.
We can do it with, as has been proposed in Ohio, optical
scan. There may be a way to use DREs to help create optical
scan ballots but then let them be counted not inside a computer
where the process cannot be accurately verified but where there
is a paper record and the paper record itself is the ballot and
gets counted.
Mr. Chairman. If you do optical scanning, you still have to
have one machine to equip the persons that have a disability.
There is today no approved standard because, as I said, Carson,
Hoyer, and I did not make the EAC a rulemaking body; but
neither did we strip it of its ability. If you optical scan, it
has to approve procedures and standards; today there are no
standards for optical scanners.
If the state of Ohio does move towards satisfying the
mandate in HAVA, the real pure mandate beyond provisional
balloting, a machine equip, you still would have to have a DRE
per precinct or you would fall out of violation with HAVA. If
you have optical scan and no type of device equipped for the
blind, then you will be out of compliance, and must still have
to have a DRE. That means you have to throw one other thing out
there.
If you have one DRE per precinct, and that one machine
breaks on election day, you don't have a second machine backing
it up. If you have all DREs, it wouldn't matter. You would
still have five other machines. Technically you would have to
have DREs even if you have optical scan.
Mr. Jacobson. I guess I would just briefly say optical scan
is much cheaper than DREs with or without paper trails. We do
have a lot of money left over within the HAVA budget to deploy
whatever systems would be necessary to allow the disabled to
vote. We do recognize that we have the responsibility of
providing them with something of a format like a DRE.
The question is whether or not that has to generate within
it the record or spit out a ballot that then can be counted in
the same fashion. We are working our way through but we
recognize we will have to have more. We do believe we have the
funding for it.
Mr. Gardner. Mr. Chairman, if I could, you have touched on
a very key component of HAVA with respect to allowing those
with disabilities to vote more independently and privately.
That is one of the key reasons why I oppose provisions to
mandate a voter verified paper audit trail.
Let me just read briefly from just one paragraph from what
I wrote last June 4th. ``To be sure, the most ardent supporters
of VVPATs have succeeded in slowing down the implementation of
HAVA in Ohio. In doing so we know that some voters in November
will not have their intended vote counted accurately as our
older systems, primarily punch cards, result in higher under
votes and over votes than in electronic voting machines. In
addition, many disabled Ohioans will not be able to vote
independently and privately in 2004 because some counties will
waive to implement HAVA in compliance with Ohio's 2006 VVPAT
mandate.''
My additional concern in stating that is not to restate the
record of the past but as we look forward, I think we need to
look at the independent private voting abilities of the
disabled even if we do have an optical scanner, as you pointed
out, which would be necessary to comply with HAVA.
I think that is just something we can't escape and we
shouldn't escape. Not only is there a cost issue here, I think
there is a voting rights issue here, Mr. Chairman. I believe
that the legislature will take that into consideration in the
weeks ahead.
The Chairman. Thank you. To Representative DeWine, I don't
pretend to know every product but, from what I know, it brings
greater clarity and consistency to Ohio's election process,
which is what we hope all states will do if there are some
things that aren't clear. I think your efforts will
significantly enhance HAVA implementation in the state.
One thing that I am trying to take away from today's
hearing is the areas in which HAVA did and did not work. A lot
of the implementation was left up to the local states.
Provisional voting was one of the most critical components. We
didn't tell the states how to count the vote, but we said you
have to accept the vote. In that area, with provisional voting,
how do you think it went? I am just curious how provisional
voting went from the perspective of the states.
Mr. DeWine. Mr. Chairman, if I might on the paper trail
piece. I stand directly in between the two of these gentlemen
when it comes to a position on paper trails. You can't find two
more polar opposites on what to do with paper trail, and many
other issues as you well know, Mr. Chairman.
My one point on the paper trail. We struggled trying to
balance to get a federal deadline in 2006 and balance that
against the security of the vote. If you carry nothing else
with you today, the one message that I have for you is we would
like an extension of the deadline.
We would like an extension of the deadline from 2006 to
2008 so that we can work out the issues, we can balance the
security of the vote with the requirements that HAVA has put
on. If you walk away with one thing, please walk away
understanding that I am asking this committee and Congress to
grant us an extension until 2008 for the expenditure of the
HAVA dollars.
I think when you look at the election, Mr. Chairman,
especially as it relates to provisional voting, Ohio had a
pretty darn good history prior to the election in 2004 and with
the implementation of the HAVA requirements for provisional
balloting in 2004 we went far beyond that and actually led the
class in terms of the number of voters who voted provisionally
and the percentage of those provisional votes that were
actually counted so I think the system here in Ohio worked the
way it was supposed to.
The Chairman. I just want to note a couple of things. I had
spoken earlier of the backup machines. HAVA requires one
machine per precinct. I don't want to rewrite the HAVA law
today. I am also asking, if one breaks down, what do you do?
Also people would argue that the state delayed this whole
thing. If that was the case, why should the Federal Government
waive Ohio, and what would happen in the central database in
2006? These are some of the arguments you hear in Washington.
Mr. DeWine. Mr. Chairman, to that point, I am not
requesting that you delay any of the time lines for any
compliance with anything other than the voting machine. I
believe the Secretary's office is up to speed on the
centralized database. I think we are 80 percent of the way
there. Any of the other requirements I think the Secretary's
office is up to speed. I am talking specifically about voting
machines, Mr. Chairman.
The Chairman. Thank you. I am going to move on.
Mr. Gardner. Mr. Chairman, the only thing I would say is I
would echo the representative's comments. I know that there
will be some local board members, members of the Board of
Elections, that will be testifying today or representatives of
that association. I would hope that you will listen carefully
to them.
Quite frankly, I listened to them very intently when I
became chairman of the joint committee and they guided a lot of
my decisions because I knew they had spent two years in working
with you and working with members of Congress and working with
the Secretary of State in putting together a process that I
think would work best for Ohio. We took many of those decisions
out of their hands. I hope you will listen to them today as to
how they think we can best implement HAVA, whether it is 2006
or 2008.
The Chairman. I want to clarify one other thing because I
hear this from Democrats and Republicans alike in my Holmes
County or Ross County calling and asking our office, ``Do you
and HAVA require every county to have the same machine?'' The
answer is no. The Federal Government does not require it.
In other words, Ross County had already bought some
machines. It would be up to the legislature and the Secretary
of State and the Governor. I know how systems work here but I
just wanted to mention that it doesn't require you have to have
the machine.
Mr. Jacobson. Thank you. Our concern about 2004 was two-
fold. First of all, to require deployment in an election with
so many new voters and so many questions about how to run the
existing procedures let alone how to run new machines could
have been disastrous. The lines would have been worse, for
example.
You only need look at what happened in North Carolina where
an entire statewide election is being rerun, if not already has
been rerun, since 2004 because of human error in dealing with
the computers they had, the DREs that they had. I think it was
not inappropriate for us to be concerned. Imagine what would
have happened if we had to run Ohio's presidential election
over again because our poll workers or because the machines
themselves did not function well.
Our concern, by the way, with uniformity, I think, stems
from not HAVA but from Bush v. Gore and the U.S. Supreme Court
decision and the effect that might have on any set of
litigation about what happens in the state.
The Chairman. The gentlelady from California.
Ms. Millender-McDonald. Thank you, Mr. Chairman. I would
like to thank all of you for coming today to present your
thoughts on this last election.
Representative DeWine, I appreciate your candor because you
are absolutely right. Last-minute directives were those very
things that turn heads to the attention of Ohio.
Mr. Jacobson, when you asked why is it that we have shown
such great attention to Ohio and not to Wisconsin. The
Secretary of State of Wisconsin did not make those last-minute
directives which then geared us from looking at Ohio. I will
say to you that with reference to your question, Representative
DeWine, on extending the deadline to 2008, in my statement I
did say that HAVA has required that state election officials
meet two goals by next year, and that was that at least one
voting machine or system that is successful to individuals with
disabilities. The second was that we have a uniform centralized
database so that is to be really carried out by next year.
Your president of your National Association of Secretaries
of State, the New Mexico Secretary of State, Ms. Vigil-Giron,
said that every state had met the HAVA 2004 deadline. Several
states even completed reforms that could have been postponed to
2006. At least nine states were ready with statewide voter
registration data and the Americans with disabilities
independent system.
I just wanted to let you know that the president of the
National Secretaries of State, Association of Secretaries of
State, did indicate that a majority of these states, if not all
of them, are now in compliance and will be by next year.
Mr. Jacobson, when you asked why is it that we come to Ohio
or why the media was so prone to turn lights into Ohio, outside
of the last-minute directives that really kind of set up the
red flag, when you have your Secretary of State indicating that
forms on 800-pound papers not be accepted also brings up red
flags. When you have someone who is not inside of his or her
precinct should not fill out a provisional ballot, that brings
up red flags.
When the Voting Rights Act prohibits anyone, any individual
that would be intimidated, and there were many factors involved
here that even some of your elected officials, your local
folks, who were on this commission stated that you have
elections on Wednesday, November 3rd, as opposed to November
2nd, those are the things that really brings up a red flag.
Now, we are duly responsible for making sure that people
have access in this country and that is access to voting. When
these types of things come as interferences, then by all means
Ohio will be a targeted state and we review and that we will
come back to look at. Do you have any thoughts on all of those
that I have delineated as to those directives and/or concerns
that were raised by your Secretary of State and why we are here
today?
Mr. Jacobson. Thank you very much. The first thing I would
say is I do not believe the apocryphal stories about phone
calls were being given to people to say come vote on Wednesday.
I've heard them on both sides of the issue and my sense of
those kind of things is that if one person pulls a prank, they
usually cover it up by claiming that they got the call or their
friends got the calls.
I do not believe in any way, shape, or form that those kind
of comments can be substantiated in order to claim them as
anything other than apocryphal legends about the 2004 election
in the same way there were so many about Florida in 2000 that
to this date have never been sustained or substantiated.
I do understand what you were saying about the Secretary of
State's directives. That is a different issue. First I was
talking about the claims that have been made----
Ms. Millender-McDonald. But is it not directly the reasons
why one should raise red flags here and why Ohio is being
looked at? Ohio is not the only state that is going to be
looked at but you were one of those who were because you were
the deciding factor on the presidential election. Make no bones
about it, no one, no one was trying to overthrow this election.
No one.
Mr. Jacobson. Am I still responding?
The Chairman. Yes.
Mr. Jacobson. Thank you. I guess I would say, first of all,
as far as the 2004 election, I appreciate the fact that you are
here in Ohio. My question was rhetorical mainly directed at
proving why or suggesting why Ohio's system is better because
of having the bipartisan independent Board of Elections unlike
other states.
Perhaps you took my rhetorical question as implying we
didn't have anything for people to come and look at. That was
not my suggestion. My suggestion was that Wisconsin had it gone
the other way, would have also been the deciding factor.
Ms. Millender-McDonald. And we would have been in Wisconsin
today as opposed to Ohio.
Mr. Jacobson. But what I am suggesting is we aren't in
Wisconsin because it voted for the losing candidate. Had they
voted for the winning candidate, perhaps we would have been
there. As to the directives of the Secretary of State, which I
think was the part of your question that I had not answered, I
do believe that some of the directives raise concerns. I am
glad to state that the one that you mentioned about the 80-
pound paper was withdrawn almost as soon as it was promulgated.
Ms. Millender-McDonald. Nevertheless, it was done, sir, and
those are the things that we carefully look at because, as
Representative DeWine said, these things have become partisan.
Images are so critical, especially when the stakes are high and
stakes are high in presidential elections. When you have those
types of things, of course, folks will go right to the jugular
on that. This is why we have turned our attention to Ohio and
did turn the attention to Ohio because of that. We would have
turned those attentions to California or any other state had it
been those types of overtures.
Mr. Jacobson. The last point I would make is that Ohio had
a difficult burden because of the involvement of groups that
came from outside the state, groups that submitted large blocks
of registrations, many of which were forged and falsified, all
of which put a strain on the local board's ability to deal with
things in an appropriate time frame. There were many things
that combined in the fall to produce confusion, confusion that
the Secretary of State attempted in a disappointing way at
times to clarify. This was the heat of dealing with all kinds
of outside interference. I think when he is here----
Ms. Millender-McDonald. It happens in all states.
Mr. Jacobson. Not to this level. I would suggest that he
could better answer his motivations in dealing with the
directives.
Ms. Millender-McDonald. I understand but we will always
have, no matter what state it is, interferences. You will have
groups coming in just like someone said about some group that
came all the way from Oakland or whatever. You are going to
have groups coming from all over irrespective. That is the
American way. You can't stop that. When we talk about 800-pound
papers that will not be accepted, when we talk about people who
cannot, those are not any incidents that are totally dedicated
to people who are coming from out of state. That is your
elected official.
I am talking to you, sir, please.
Mr. Jacobson. Sorry.
Ms. Millender-McDonald. That is directly from your person
who has the ultimate oversight of elections in your state so
this is what we are talking about, not necessarily all of the
confusion of these people who come in. They come in to the
people's house. They come from all over. They come from every
place and that is their right to do that but it still does not
circumvent those last-minute directives that caused contingent.
Mr. Jacobson. I would just say that fraudulent
registrations are not a part of the American way and groups
that are paid to come in and end up registering Mickey Mouse
and some of the other people that were registered in return for
crack cocaine, the millions of dollars that poured in in an
attempt to influence Ohio I think is not normal and I would
just state that it did make all of our jobs quite a bit more
difficult.
Ms. Millender-McDonald. Mr. Jacobson, I would hate for you
to characterize voters as crack cocaine. Please do not
characterize those who are doing registration of people----
Mr. Jacobson. You may not be aware of what specifically
happened. A gentleman was arrested and I think pled guilty that
he was paid in crack cocaine for submitting registration cards
and the registration cards that he submitted included Donald
Duck, Mickey Mouse, Mary Poppins, and all kinds of others.
Ms. Millender-McDonald. Of course we have heard that, but
is that not one incident of the many? We have to be very
careful that we do not show any resemblance of arrogance on the
parts of those who wish to vote and let their vote be counted.
There are many minorities in this state and in every state who
have been at the throws of not letting their votes be counted.
Those long lines of 10 hours that Mr. Jacobson just spoke
about, those are some of the problems, too, that tend to have
disenfranchised voters because folks have to leave to go pick
up their children. Folks have to go and take medicine that they
did not bring because they thought they would be finished.
These are the reasons why this committee is in Ohio.
We just want it to be known that we did not just come to
Ohio. I would love to have been with my family and not flown
here but it was important. It is my responsibility as the
Ranking Member on this Committee to find the facts. Thank you,
Mr. Chairman.
The Chairman. Let me note something off the bat here. Under
the way the House committees proceed, there is not to be booing
or clapping or emotion on either side, so we would ask you to
adhere to the rule of the House.
I would note before we move on to my colleague, as far as
what the senator is referring to, I publicly spoke out against
this. I am hoping this Committee addresses it. When they did
the ``campaign finance reform'' they took union members and
average people that are working in corporations and said, ``You
can't participate in the system, but we will create a nine-
headed monster called the 527 and empower a very wealthy, in
this case, Democrat billionaire, to try to put as much money in
the system.'' And let me be fair about this. There is probably
going to be a billionaire Republican that is going to come to
the forefront----
Ms. Millender-McDonald. Already, Mr. Chairman.
The Chairman. The Republicans hope so. Therefore, I am
hoping our Committee will restore the voice of the average
union member and the average corporate person to participate in
the political system and the energetic give and take of public
debates. I am more than willing to correct that little monster
that was created, not by the IDC, but by a couple people that
didn't write the law tight enough in Washington.
Ms. Millender-McDonald. I couldn't agree with you more, Mr.
Chairman. If we are going to do away with 527s, let those 527s
be done away with across the board. It was not only those on
the Democratic side so don't let me start talking about the
issues of the House, please.
The Chairman. As we move on, you have seen the Millender-
McDonald and Ney piece of legislation for next week.
Ms. Tubbs-Jones. Thank you, Mr. Chairman. The light comes
on. I am assuming this is on.
Let me begin with Senator Gardner. Senator Gardner, are you
opposed to early voting, sir?
Mr. Gardner. Am I opposed to early voting?
Ms. Tubbs-Jones. Yes.
Mr. Gardner. I think it depends a little bit how it is
constructed. Generally speaking I believe we have widespread
access to voting in this state. We have, again, as the
Chairman----
Ms. Tubbs-Jones. Let me state I only have five minutes. I
am not a ranking member or chairperson. My question is real
simple. Are you opposed to early voting, sir?
Mr. Gardner. I don't think I have taken a public position
yet. I have concerns about early voting.
Ms. Tubbs-Jones. What about a voting holiday, sir?
Mr. Gardner. I am not in favor of a voting holiday.
Ms. Tubbs-Jones. What about no-excuse absentee
registration, sir?
Mr. Gardner. I am open to hearing the debate in Ohio on
that but I am not in favor of that at this time.
Ms. Tubbs-Jones. Do you understand that all of these
concepts, sir, are proposed to permit easy access to voting
such that voting lines would not be as long as they have been
in the past?
Mr. Gardner. I do, ma'am.
Ms. Tubbs-Jones. Thank you. What about you, Senator
Jacobson? Are you opposed to early voting?
Mr. Jacobson. I am opposed to early voting or no-fault
absentee.
Ms. Tubbs-Jones. Are you opposed to a voting holiday?
Mr. Jacobson. I am opposed to early voting and no-fault
absentee because voters do not have all the information about
all candidates on the ballot in the weeks leading up to the
election.
Ms. Tubbs-Jones. Excuse me.
Mr. Jacobson. They only learn about it----
Ms. Tubbs-Jones. Mr. Jacobson.
Mr. Jacobson [continuing]. In time for election day.
Ms. Tubbs-Jones. Mr. Jacobson.
Mr. Jacobson. They may know the president but nothing else.
Ms. Tubbs-Jones. Sir, I understand but I would ask for just
a little bit of respect. I am asking you a question. Briefly
answer my question. I only have five minutes. My question to
you, sir, are you saying that somebody who registers to vote 30
days before an election versus someone who registers to vote on
the day of election has more information?
Mr. Jacobson. No, I am not taking about registration in
that case. I am saying that when people wait until election day
to vote, there is the opportunity to learn about all the
candidates and the issues. Early voting when it happens means
that some voters have a lot less information 30 days out or 20
days out than they would have----
Ms. Tubbs-Jones. You understand, sir, that many, many
states have early voting and----
Mr. Jacobson. I believe it is a mistake. It reduces lines
and it helps incumbents because people know the incumbents.
They don't know challengers.
Ms. Tubbs-Jones. Twenty days out of an election that is how
you get to know a challenger. Is that what you are saying to
me?
Mr. Jacobson. No. I am saying that most campaigns are
conducted in this country by TV and they are conducted working
backwards from election day. If it takes place before
candidates have reached their base----
Ms. Tubbs-Jones. What about----
Mr. Jacobson [continuing]. The incumbent is well-known for
months and years.
Ms. Tubbs-Jones. What about the young people who are in
Iraq and Afghanistan and they vote 30, 60 days out in order to
get their absentee in? Are you saying to them that they are
uneducated about their decision on who they vote for, sir?
Mr. Jacobson. I am saying that when someone chooses to vote
early, they are choosing to vote with less knowledge than they
would have otherwise.
Ms. Tubbs-Jones. Because in the last 30 days you get
everything you need to know about any candidate?
Mr. Jacobson. That is the way campaigns work in America.
Maybe it shouldn't be. The incumbents are known for years. They
send out newsletters. They are on TV. Challengers barely get a
chance to be known at all----
Ms. Tubbs-Jones. Let me ask you this.
Mr. Jacobson [continuing]. Working backwards from election
day.
Ms. Tubbs-Jones. Mr. Jacobson, please. If you would stay
with me, sir.
Mr. Jacobson. Sure.
Ms. Tubbs-Jones. You said there was money left over from
HAVA. Is any of that money going directly to local boards to
administer information to the voters, sir, if you know?
Mr. Jacobson. I guess some of the money is being used in
that way. What I was speaking of is when we decided not to go
with DREs and instead----
Ms. Tubbs-Jones. How much money--Mr. Jacobson, do not talk
on top of me, sir. My question is did money go to local boards
to give them opportunities to implement HAVA?
Mr. Jacobson. I don't believe I can answer the gentlelady's
question because----
Ms. Tubbs-Jones. Thank you very much.
Mr. Jacobson. I would like to--I can answer it if you would
let me explain the answer.
Ms. Tubbs-Jones. Answer my question.
Mr. Jacobson. Thank you. The reason we have money left over
is because when we decided not to do DREs for everybody and
instead to do optical scanning----
Ms. Tubbs-Jones. Okay. I am with you on why you have money
left over. I am asking you did any money go to local boards for
them to implement or give information to their voters about
what was going on?
Mr. Jacobson. I do believe there was money we appropriated
that was supposed to be used for educating poll workers as well
as the money that was used to educate voters directly.
Ms. Tubbs-Jones. But you don't know whether any of that
money went to the local boards or not?
Mr. Jacobson. I do believe it was supposed to but I am not
in charge of spending the money. We make appropriations.
Ms. Tubbs-Jones. Lastly, sir, are you aware that, in fact,
the Secretary of State has the ability to dismiss members of
boards of elections?
Mr. DeWine. Yes, I am.
Ms. Tubbs-Jones. And so the argument that it is a
bipartisan system, you have one partisan who is capable of
dismissing members of the Board of Elections as Kenneth
Blackwell threatened to do in this past election, HAVA gives
way to the real bipartisan nature of the boards. Does it not,
sir?
Mr. DeWine. Mr. Chairman, to the representative, I believe
that he can only remove those board members for cause and would
have to replace them with a person of the same party.
Ms. Tubbs-Jones. I understand but I am saying to you that
he has the ability to dismiss members of the board. In fact, he
threatened to do that in this election. Did he not, sir?
Mr. DeWine. I believe I heard that, yes.
Ms. Tubbs-Jones. He did, in fact. You didn't just hear it.
It was, in fact, all over the newspaper and television that he,
in fact, did that. Correct?
Mr. DeWine. Correct.
Ms. Tubbs-Jones. Thank you, Mr. Chairman.
Ms. Millender-McDonald. Mr. Chairman.
The Chairman. Gentlelady.
Ms. Millender-McDonald. Let me just for the record outline
the amount of money that the state of Ohio has received so far.
You are the third leading state to have received HAVA money
with $135,704,000. You are the third state to receive the
largest amount. I just wanted to make that for the record, Mr.
Chairman, outside of Florida with $159,711,000. Of course, my
state has over 35 million people and received $181,580,000.
Mr. Chairman, I would like to just ask these gentlemen to
give us what they feel would be an improvement for elections if
you can say that with two or three sentences. I would like to
get that before we leave. Improve upon your elections.
The Chairman. I think we can actually combine the last
question that I would have, which is why we are here today.
What can be done to improve upon elections? My other question
is, in general, how do you believe HAVA worked? That is what I
am here today to find out, how HAVA worked.
Also, I would be remiss if I didn't say as the author of
HAVA, I am proud that my state got the lion's share of the
money. Although it was equally distributed across the country,
I wouldn't be doing my job if my state didn't do that.
California didn't do bad either. If you would like to, you can
combine the two questions.
Mr. DeWine. Mr. Chairman, members of the Committee, as you
have pointed out, as the sponsor of the bill I believe that
HAVA worked very well in the election of 2004. As far as my
suggestion for what one or two things--to the Ranking Member
one or two things that we need to be doing here in Ohio, I
think we are working on those in House Bill 3 which I have
sponsored.
I think probably one of the most important things that we
can do is codify as many of the directives that the Secretary
of State has put out as possible. Put them into code, put them
into law, put them in the books so that they are not left to
discussion and debate, left to partisan nitpicking, days,
weeks, hours, minutes before an election or even on election
day. I believe if we are able to achieve that sometime this
year, we will have made significant strides in ensuring safe,
transparent, and fair elections in the state of Ohio. Thank
you.
Ms. Millender-McDonald. Thank you so much.
Mr. Jacobson. Thank you. First of all, I think HAVA was
helpful because it ended what could have been an interminable
debate over what is the best way to take lessons from the 2000
election and it gave us a standard that we would all work to
emulate and to achieve.
Secondly, I think what we can do better and should do
better, we should ensure that we have confidence in our
elections by requiring every voter to show ID, by requiring
that those who want to influence what goes on on election day
have better, clearer guidelines as to what they can do and what
they cannot do so that we do not have some of the confusion.
Thirdly, I think we need to make sure that we have well-
crafted our voting machine deployment and standards so that we
do not again face the questions that we have this year about
whether or not the problem was the systems or their deployment,
whether or not they were. There are so many issues that could
combine to create long lines. We need to know what everyone
will do so that we in the future will be able to prevent that
from happening.
Ms. Millender-McDonald. Thank you.
Mr. Gardner. Thank you, Mr. Chairman. I, No. 1, wish we
could have more fully implemented HAVA in the 2004 election but
would like to congratulate early and look forward to
legislation sponsored by Representative DeWine and in the
Senate by Senator Kevin Coughlin of Cuyahoga Falls, as to
improvements that will be made. There is no question in my mind
that we will have good legislation in the weeks ahead.
I think, again, to reiterate that I hope that this
committee will listen to and respect the views and concerns
expressed by local boards of election members or their
association represented here today that we should not attempt
to mandate an unproven technology so I am hopeful that we can
at least relax or repeal or change some of which is already
Ohio law and not necessarily speaking to the federal HAVA act.
The final thing I think I would say is I understand the
Secretary is going to be appearing before you today at some
point and that Ohio does have--I served on a Board of
Elections. I didn't detect any partisanship on our board that
interfered with our ability to conduct elections so I hope that
is maintained in this date and I am not aware of any--I became
a member of a Board of Elections when Tony Celebrezze was the
Secretary of State. Actually, a fine Secretary of State in
Ohio.
I don't believe any Secretary of State ever has abused his
ability and his authority to appoint or remove members of a
board of election. We might want to consider looking at that
but I think, quite frankly, members of the Committee, not much
to look at with respect to our strong bipartisan tradition in
the state in carrying out important election duties.
Ms. Millender-McDonald. And we are not saying unwillingly
abused. We are simply saying that these are things to place.
Mr. DeWine does give an appearance of abuse or we would not say
that seriously. We want to make sure. Mr. DeWine, your
legislation does it speak to same-day voting or holiday voting
or what?
Mr. DeWine. Correct.
Ms. Millender-McDonald. Does it speak to any variations of
voting for the voters here in this state?
Mr. DeWine. Mr. Chairman, to the Ranking Member, it does
not yet. We have had a series of robust hearings in the House
Committee. There is a separate piece of legislation introduced
by my colleague from Toledo that introduces the idea of no-
fault absentee with the State of Ohio. That issue under House
Bill 3 is getting lots of heavy discussion and debate. It will
remain to be seen whether it fits in as a piece of this
legislation.
Ms. Millender-McDonald. We will be following your
legislation. Thank you all so much.
The Chairman. I want to thank all the members of the
legislature. I appreciate the tough job you have. I appreciate
the tenacity with which you do your job and the thoughts that
you have.
Ms. Millender-McDonald. Thank you for coming.
The Chairman. This is helpful to us today. We will continue
to appreciate, any insight you have on HAVA, as it goes through
its other phases. Also I want to assure you that our door is
always open.
Ms. Millender-McDonald. My door is open to you, Mr.
Chairman.
The Chairman. Here in the state we talk to Democrats and
Republican board of election members, not only for the 18th
District, but from around the state. We are willing to listen.
Our Ranking Member is Carson; Stephanie Tubbs Jones and members
of the delegation are always open. With that, thank you for
your time.
We'll move on to Keith Cunningham, President of the Ohio
Association of Election Officials and Director of the Allen
County Board of Elections; Michael Sciortino, the Director of
the Mahoning County Board of Elections and prior President of
the United Association of Election Officials; Michael Vu,
Director of the Cuyahoga County Board of Elections; and William
Anthony, Chairman of the Franklin County Board of Elections. I
want to thank the gentlemen for being here today. We will begin
with Mr. Cunningham.
STATEMENTS OF KEITH CUNNINGHAM, PRESIDENT OF THE OHIO
ASSOCIATION OF ELECTION OFFICIALS AND DIRECTOR OF THE ALLEN
COUNTY BOARD OF ELECTIONS; MICHAEL SCIORTINO, DIRECTOR OF THE
MAHONING COUNTY BOARD OF ELECTIONS; MICHAEL VU, DIRECTOR OF THE
CUYAHOGA COUNTY BOARD OF ELECTIONS; AND WILLIAM ANTHONY,
CHAIRMAN OF THE FRANKLIN COUNTY BOARD OF ELECTIONS
STATEMENT OF MR. KEITH CUNNINGHAM
Mr. Cunningham. Chairman Ney and members of the Committee
on House Administration, my name is Keith Cunningham. I am the
Director of the Allen County Board of Elections and the current
president of the Ohio Association of Election Officials. Thank
you for the opportunity to speak with you today.
Let me begin by saying that despite the rhetoric and
sometimes hysterical mania, the 2004 Presidential Election in
Ohio was fairly administered and absent of fraud. That is not
to say there were not some problems. However, those problems
were isolated, not wide spread, and at worst, were the result
of innocent and unintentional human error or circumstances that
were simply not anticipated or were beyond the control of
election administrators.
Ohio election officials processed over three quarters of a
million new registrations in 2004 resulting in a 12 percent
increase in statewide voter registration. We successfully voted
nearly 5.8 million people, the largest turnout in the history
of our state. The acceptance rate of provisional ballots in
Ohio was one of the highest in the nation at 77.9 percent. Let
me state to you unequivocally; Ohio election officials
performed their duties in exemplary fashion on November 2,
2004.
Following your lead with the Help America Vote Act, I would
like to share some of the items the O.A.E.O. are currently
advancing in our State Legislature to help us better serve the
voters of our state.
We believe Ohio should adopt no excuse absentee voting. We
are not suggesting that no excuse absentee voting is a panacea.
We are suggesting that it is a cost effective and easy to
achieve measure that will provide an immediate albeit partial
solution to long lines.
We believe the right for anyone other than an election
official to challenge a voter's registration should be cut off
at 20 days prior to election day. We do understand the role for
challengers; however, we firmly believe that the rights of
challengers must be fairly balanced with the rights of voters.
Last minute challenges and lack of clear procedural guidelines
under Ohio law proved most disruptive to many of Ohio's voters
in 2004.
We believe that individuals and advocacy groups engaged in
the registration of voters should be required to deliver those
registrations to the appropriate Board of Elections or the
Secretary of State within a pre-determined amount of time.
Ideally no more than 10 days. This will prevent thousands of
registrations from being turned in at the last minute and,
thus, increasing the risk that some voter's names will be
mistakenly entered or even possibly omitted from the
registration rolls due to severe time constraints.
We believe that individuals and advocacy groups soliciting
registrations should be required to turn in all registrations
they gather not just those they believe advance their cause or
position. This is probably even more consequential than my
previous point. In this scenario the person completing the
registration form believes that they are being registered to
vote, only to find on election day that they are not. In this
instance, even a provisional ballot cannot help enfranchise
this voter.
We are in complete support of Chairman Ney's efforts
calling for the immediate and full funding of HAVA. Quite
frankly, we must question Congress's true depth of commitment
to the principals set forth in HAVA if they are not willing to
fully commit the funds promised and needed to implement these
mandated provisions.
We believe that the deadlines for HAVA compliance, along
Mr. DeWine's lines referring to voting machines, should be
immediately adjusted to reflect the late start realized by the
EAC and the Federal Government. We have only one chance to get
this right and the risk that millions of federal dollars will
go to waste is simply too great. The cost-benefit analysis
demands that these deadlines be extended in order to best serve
voters.
On a personal note, I would like to express my extreme
disappointment in the harsh behavior of a few members of the
United States Congress during the certification of the Ohio
presidential vote. In particular, I am deeply offended by
Representative John Conyers' call for an FBI investigation of
Ohio's election officials. The FBI is our country's highest
investigative agency for criminal matters. This affront to the
integrity of my Ohio colleagues in the absence of any
compelling criminal evidence should be considered an
embarrassment by the other members of Congress.
Finally, as has been discussed here today, Ohio does have a
bipartisan management structure within our election system. I
believe it is a model for others to consider. Ohio's election
officials, Republican and Democrat, have demonstrated to this
nation that even while partisan, we can commit ourselves to the
higher ideal of fair and honest democratic elections.
Again, thank you for the opportunity to present these
remarks here today.
[The statement of Mr. Cunningham follows:]
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STATEMENT OF MICHAEL SCIORTINO
Mr. Sciortino. Chairman Ney, members of the United States
Congress House of Representatives Committee on House
Administration, my name is Michael Sciortino and I am Director
of the Mahoning County Board of Elections located in
Youngstown, Ohio. Let me first say that it is truly an honor to
be before you today presenting testimony regarding the Ohio
2004 election experience and The Help America Vote Act (HAVA)
Implementation in Ohio.
I will begin my testimony by sharing with you some of my
experiences in administering the November 2, 2004 Presidential
Election in Mahoning County. Next, I want to talk about
Mahoning County's journey in converting from an optical scan
election system to a Direct Recording Election (DRE) system. I
will then conclude my testimony by highlighting some of the
work I have been engaged in with the United States Election
Assistance Commission (EAC) as a member of the Standards Board
and current Chair of the Standards Board Executive Committee.
To begin with, the Mahoning County Board of Elections ran a
solid election on November 2, 2004. The success we encountered
on election day was due in no small part to the tireless work
of our 1,300 poll workers and talented and hard working board
of election staff. In the months and days leading up to the
election, we were keenly aware that the eyes of the world were
truly watching. Ohio was THE Swing State.
I can personally attest to the constant warnings of this
notion by both the Kerry lawyers and Bush lawyers, whom I got
to know very well weeks before the election.
In administering the election, our approach in Mahoning
County was to make our operation as transparent and open as
possible; to ensure the candidates, lawyers, and most
important, the voters, that our system was fair, accurate and
accountable. Our message was simple. We had nothing to hide. I
know the lawyers and candidates appreciated this message and
quite candidly, the media did as well.
In the months leading up to November, I watched our new
voter registration numbers soar to record levels. In the 2000
presidential election year 8,500 new registrations were filed.
In 2004 we had nearly 18,000. I also watched our absentee
ballot requests sky rocketed from 12,000 in the 2000 election
to 17,537 last year, a 61 percent increase. Boards of Elections
across the state encountered similar experiences.
In 2004 I had the pleasure of serving as President of the
Ohio Association of Election Officials. My goal as President
was to improve and provide Ohio Boards of Elections with as
much communication on pending election administration issues as
possible. With the help of Ohio Secretary of State Ken
Blackwell and his staff, my goal was accomplished.
Two and a half weeks before the election, Secretary
Blackwell committed to providing daily telephone conference
calls between the Secretary of State's election administration
staff and Ohio Boards of Election. Chairman Ney and members of
the Committee, this unprecedented practice proved to be
invaluable as we were able to improve communications and work
through critical election issues. Questions regarding voter
registrations, absentee voting, provisional voting, election
day challengers were answered in a timely and thorough manner.
Moreover, these daily telephone conferences continued well into
December addressing official canvassing issues and state-wide
recount procedures.
As an election official in Ohio who heard all of the
allegations of poor election management surrounding the past
election, I submit that these allegations were groundless. Ohio
faced many hurdles in 2004 but we proved that in Ohio we have
good election laws administered by good people who want nothing
more than to administer the ``perfect election.'' We all know
that a perfect election does not exist, but in my mind it
doesn't hurt to strive for perfection.
I want to switch gears now and talk a little bit about
voting systems. A critical facet of HAVA rests with improving
the way votes are cast. In Mahoning County, we began our search
for a new voting system back in 1998 as our optical scan system
was reaching the end of its useful life. We spent the next two
years meeting with vendors and conducting test elections.
In 2001, as HAVA became a reality, we were careful to
select a system that would meet the impending federal
requirements. We secured $3,000,000 from the taxpayers of
Mahoning County for a new election system and began the
conversion process. We completed the installation in 2002, and
have now conducted 6 good elections using DRE. Mahoning County
was a pioneer county in Ohio leading they way for improved
election day balloting.
Unfortunately, our success with DRE changed with the
passage of House Bill 262 but, fortunately, Ohio Senate Bill 77
has been introduced that would permit HAVA-compliant machines
to be grandfathered from the voter verified paper trail at
least until the VVPAT becomes feasible.
Ballot security and reliable elections will always be more
than ``what type of voting machines do you have.'' Instead,
good elections are a function of the systems, procedures and
people that make elections happen, as well as the voting
equipment. In Ohio we are fortunate to have a particularly
strong system of checks and balances with equal numbers of
Democrats and Republicans watching each other throughout the
process.
I want to conclude my testimony now by examining the
Election Assistance Commission. HAVA established the U.S.
Election Assistance Commission. Central to its role, the
Commission serves as a national clearinghouse and resource for
information and review of procedures with respect to the
administration of Federal elections.
HAVA calls for establishment of two boards to advise the
EAC: the EAC Standards Board and the EAC Board of Advisors. The
EAC Standards Board is composed of 110 members drawn from State
and local election officials.
I am please to report that I am Ohio's local election
official serving on the EAC Standards Board. At the Standards
Board winter meeting in January, I had the distinct pleasure of
being elected by our membership to serve as one of nine
Standards Board members to serve on its Executive Board. Most
recently I was nominated by the Board to become the committee's
chair.
I stand ready to serve Ohio as Chair of this Board and I am
committed to helping the EAC implement HAVA in a consistent and
timely manner. I am fortunate to share Ohio's experiences with
the Standards Board and EAC as we work through important issues
like drafting voluntary election system standards and
administering Statewide Voter Registration Lists.
I know that implementing HAVA across our 50 states and
territories is challenging and the EAC truly has a tough job.
But I want to assure this Committee the lessons I learned and
experiences I have gained by administering Election 2004 in
Mahoning County have trained me well for playing a key role in
assisting the EAC to implement HAVA. Thank you.
[The statement of Mr. Sciortino follows:]
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STATEMENT OF MICHAEL VU
Mr. Vu. Thank you, Chairman Ney, Ranking Member Millender-
McDonald, members of the Committee on House Administration, and
our Cuyahoga County Congresswoman from Cuyahoga County,
Stephanie Tubbs-Jones, and for inviting me to speak on the
topic of the 2004 General Election and the Help America Vote
Act.
This past year was amazing and could be categorized as the
Olympics of Presidential Elections for Cuyahoga County. In
fact, when the November general election was certified, it
became the largest election Cuyahoga County citizens
experienced with 687,255 citizens going to the polls and
casting a ballot. We had a 68 percent turnout which may seem
small, however, if we were to take away the inactive registered
voters [per the National Voter Registration Act], Cuyahoga
County had nearly a 90 percent turnout, a wonderful sign of a
much anticipated election.
Like in every election, separate and unique problems
generally present themselves. This past election was no
different. Considering the massive scrutiny and challenges that
faced the Cuyahoga County Board of Elections, it is my belief
the election was conducted in the most professional manner
possible.
There were incidences of long lines and power outages on
election day, however, with the collaboration of many agencies,
the Board of Elections responded and resolved each issue as
quickly and effectively as possible. Although, the Board of
Elections believes we conducted a good election, there are many
areas of improvement and the 2004 Election, surely, was one to
use as a guiding light to continue our efforts in election
reform.
Considering the enormity of the election, preparation for
the 2004 General Election began in 2003. The Board of Elections
created a strategic plan in anticipation of the 2004 General
Election. Public education initiatives; a countywide mailer; a
Road Map to the 2004 Election Forum; an analysis of residual
votes in the county; coordination with county and state
agencies and our 59 cities and villages; a complete review of
departmental procedures and collaboration with local companies
were all made in an effort to mitigate major issues that could
possibly arise.
Many of these action steps were a result of the 2000
Presidential Election, including the need to educate voters to
check for ``chads'' and to have poll workers use a
demonstration ballot on every device before any official
ballots were cast on any voting devices.
There were election related issues that Cuyahoga County had
to navigate through before the election. We had capacity issues
in three main areas: registration forms, absentee ballot
requests, and phone calls.
With regard to registration forms, the Board of Elections
saw interested organizations converging on Cuyahoga County from
Washington State to Washington D.C. interacting with the public
and registering them to vote. By the end of the deadline on
October 4, 2004, the Board of Elections processed 356,598
registration forms of which 162,020 were newly registered
voters. This was 3 and 5 times, respectively, more than what
was experienced in the 2000 Presidential Election.
We had nearly 100,000 people request an absentee ballot
which was 30 percent more than the 2000 Presidential Election.
The numbers of phone calls generated were considerably higher.
In fact, we faced an equal amount of phone calls on the day of
the registration deadline as we did for voting day in 2000.
Another area of concern which Cuyahoga County experienced
was the handling of incomplete registration cards. Currently,
there is no statute or directive on how to handle incomplete
registration cards. At issue is when a registration card is
submitted prior to the deadline, but determined to be missing
some vital piece of information, could the Board of Elections
accept it as timely and allow the voter to cure their record
after the deadline. Although we did not receive direction in
this manner, we erred on the side of the voter and allowed them
to cure their voter registration form. This is an item for
state legislative action and should be remedied as quickly as
possible.
Local and national voter registration organizations were
also a contributing factor that affected voters. On several
occasions, we experienced a number of registration
organizations holding on to completed voter registration cards
for months or the cards were turned in after the registration
deadline. In fact, in two days during the month of August the
Board received 16,000 registration cards from one organization.
In some cases, these cards were dated back in February and
March of 2004. In order to prevent this from occurring in the
future, we met with all local and national voter registration
groups and asked them to submit, as a courtesy, the
registration forms every five days. In another instance, we
received over 3,000 voter registration cards one week after the
October 4th deadline. In this case, we were unable to accept
the registration cards.
The timeliness of state directives also impacted our
performance. The most conspicuous of these directives was the
issuing of provisional ballots. The outcome was the 6th
District Court of Appeals reversal of the lower court's
decision and instituting an additional provisional affirmation
statement to be filled out by the voter.
This consequently impacted the election day and post-
election activities, where poll workers experienced last minute
changes on administrative matters they had never experienced
before. Also, the Board of Elections had to contend with the
complex process of verifying and validating these provisional
ballots.
On the day of the election, we had polling location
coordinators in nearly all 584 polling locations armed with
cell phones to contact the Board of Elections in case of any
issues or simply if a voter had a question that the poll
workers did not have an answer. We purchased 654 additional
punch card voting units for a total of 9,645 for the county to
disperse to ``hot spots'' as a result of the surge in new
registrants in the County.
Six zone stations were strategically placed throughout the
county to respond. We maximized our capability to have
additional computers and phone lines and we created phone banks
in two separate county government buildings.
Turn out was the largest issue that we had to contend with
on election day. However, this only occurred in a handful of
voting precincts out of 1,436. From different reports the
longest line reported was two and a half hours coming from a
suburban and urban voting precinct. This is unacceptable and we
are investigating why individuals had to wait as long as they
did.
Part of the lengthy lines can be attributed not to the lack
of equipment, but as a result of voters waiting to be processed
to receive a ballot. Also, we are attempting to comprehend how
voters' behavior and poll worker training issues play a part in
creating the long lines.
After election day there was one notable concern that we
were aware of and had to address, provisional ballots. The
direct result of ill-timed directives, litigation and court
decisions brought concerns over how to consistently and
uniformly verify and validate provisional ballots.
In Cuyahoga County 25,309 provisional ballots were cast of
which 16,757 were deemed valid and 8,552 were considered
invalid, a 66.3 percent acceptance rate. In comparison to the
2000 Presidential Election the number of voters going to the
polls in 2004 increased by nearly 100,000 voters, yet the
percentage of individuals having to cast a provisional ballot
proportionately decreased.
I believe our public education efforts contributed to that
decrease in percentages. However, the number of valid and
invalid provisional ballots may indicate the confusion poll
workers had on issuing the ballots and confirm the negative
impact last minute changes had on poll workers and voters
during the days leading up to and on the election.
The passage of the Help America Vote Act was necessary for
the country to bring accountability and awareness to elections
in light of the controversy and division born out of the 2000
Presidential Election. The Help America Vote Act instituted
many new changes and coupled with the National Voter
Registration Act overhauled many components of election
administration.
It was a wonderful beginning to renew our efforts to create
a more secure foundation for democracy. For many states, the
principles laid out in the Help America Vote Act were
instituted for the first time in the 2004 Election. Across the
United States, HAVA requirements were implemented in order to
raise the standards of our electoral process.
The Help America Vote Act has indeed, made a positive
impact on election administration. Voters have a safety net
across all 50 states, voters will have an opportunity to remedy
any selections through second chance voting and the public can
be assured the voter registration rolls will be more accurate
as a result of the statewide voter registration system than in
the past.
The Help America Vote Act for its purely altruistic
intentions contains three looming issues that deserve
attention. I consider these the ``penumbra'' or gray areas that
require specific definition. These include a definition of a
permanent paper record; jurisdiction; and a single, uniform,
official, centralized, interactive computerized statewide voter
registration list.
The Election Assistance Commission has been very helpful in
establishing ``best practice'' guidelines and they should be
thanked for their hard work and their proactive role in moving
the Help America Vote Act along. However, there is no single
body to give us a standard of acceptability and a definitive
direction to comply with the Help America Vote Act.
Next year, 2006, will be the true test for the Help America
Vote Act, when all of the requirements will converge. This will
be the true test of whether all fifty states and territories
are able to comply with the spirit of election reform.
Thank you, again, for this opportunity to give testimony,
and I would be more than happy to answer questions the
committee members may have.
The Chairman. Thank you, Mr. Vu.
Mr. Anthony.
[The statement of Mr. Vu follows:]
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STATEMENT OF WILLIAM ANTHONY
Mr. Anthony. Good Afternoon Mr. Chairman and honorable
members of the Committee. I am pleased to represent the bi-
partisan members and administration of the Franklin County
Board of Elections today in my capacity as Chairman. I am also
Chairman of the Franklin County Democratic Party, and I am a
staff representative for the Ohio Civil Service Employees
Association, Local 11.
Mr. Chairman, there are five areas that I will address
today: voter registration, provisional voting, voter
information, voting machine allocation, and the misreported
unofficial election results from Gahanna 1B.
As the Committee is well aware, there were enumerable
political organizations spending tens of millions of dollars on
voter registration drives. In Franklin County alone, we
processed more than a quarter of a million voter registration
forms between January 1, 2004 and the close of registration in
early October. This was twice the registration activity as
compared to the same period in 2000.
Knowing that these registration drives were taking place,
but also knowing that the Board had no authority to actually
regulate them, we engaged each organization privately to ensure
that each understood the policies and procedures of the
Franklin County Board of Elections, the requirements of federal
and state law, including HAVA, and encouraged them to submit
their registration forms each week.
As organizations submitted completed registration forms,
Staff reviewed the forms and provided each entity with feedback
as to recurring problems. By engaging in this proactive
monitoring process, the Board protected those registering to
vote and reduced possible occurrences of fraud.
Second, Mr. Chairman is provisional voting. Ohio has been
permitting the use of provisional voting since the early
1990's. However, nowhere in Ohio's laws will one find the words
``Provisional Ballot.'' Over time, individual county Boards of
Elections developed their own rules and regulations governing
these important decisions.
Concerned about equal protection accusations, the Franklin
County Board of Elections in a formal resolution requested on
August 10, 2004, that the Ohio Secretary of State provide
guidance on this important issue. No response was received
until the issuance of Directive 2004-33 on September 16, 2004.
While a federal appeals court ultimately upheld the letter
of the Secretary's interpretation, the resulting confusion,
particularly in the thirty days immediately preceding the
Election, was a detriment to the voters, our poll workers, and
the electoral system.
To help limit confusion within Franklin County, our Staff
developed a nearly 400-page Street and Road Guide that was
provided to each precinct that listed the assigned polling
place for every address in the County. This allowed poll
workers to assist provisional and other voters in finding the
correct precinct in which their ballot would count.
Additionally, since all of our poll workers had received
training prior to the final Court decision, the Board mailed to
each of its nearly 5,000 poll workers a detailed four-page
letter outlining how to administer provisional voting based
upon the appeals court ruling. Because Franklin County took
this and other positive actions, 4 percent of our nearly 15,000
provisional ballots had to be disqualified for being cast out
of precinct.
The third category, Mr. Chairman, is voter information
known in political circles as get out the vote, GOTV. Because
of intentional or unintentional activities of others, voters in
Franklin County received misinformation about election day
activity.
Approximately three weeks before the Election, the Board
determined that so much misinformation had been disseminated
that we responded by mailing a post card to every one of the
847,000 registered voters in the county notifying them of their
correct precinct and voting location at a cost of more than
$250,000 to the County.
As I wrap-up my testimony, Mr. Chairman, I would like to
address two situations in Franklin County that have been taken
up by the conspiracy-theorists and internet-bloggers alike as
evidence of fraud and their reason why Franklin County's and
Ohio's election results cannot be trusted. These two situations
are, of course, the long lines at voting locations allegedly
due to the intentional misallocation of voting machines and the
misreported, unofficial election night results from one of our
county's precincts.
Yes, Mr. Chairman, and members of the Committee, there were
long lines to vote in Franklin County, in all of Franklin
County. Some have alleged that precincts in predominantly
African-American or Democrat precincts were deliberately
targeted for a reduction in voting machines thus creating the
only lines in the county.
I can assure you Mr. Chairman, and members of the
Committee, both as a leader in the black community, Chairman of
the local Democratic Party and a labor leader, and as Chairman
of the Board of Elections that not one of these accusations are
true.
On election day, I spent several hours driving around the
county in the rain and observed long lines in every part of the
county: Urban and suburban neighborhoods, black and white
communities, Democrat and Republican precincts. Long lines on
election day were the result of three things and these three
things only.
First, nearly one hundred thousand more people voted on
Election Day 2004 than during 2000. This is almost a 25 percent
increase over the previous presidential election. Which brings
me to the second reason. Despite the fact that we had a
dramatic and historic increase in the number of voters compared
to previous elections, the resources available to the Franklin
County Board of Elections remained static.
In 2000, the Board of Elections owned an inventory of 2,904
voting machines for 680,000 registered voters in 759 precincts.
Four years later, in 2004, the Board of Elections owned an
inventory of 2,904 voting machines, the exact same number of
voting machines as in 2000, a static resource that had to be
spread even thinner to meet the increased demand of voting
machines for 847,000 registered voters in 788 precincts.
Knowing this, why didn't we purchase more voting machines?
Because of the passage of HAVA by Congress and Ohio's House
Bill 262 requiring a Voter Verifiable Paper Audit Trail, all
previously discussed plans to purchase additional machines for
implementation in 2004 were canceled.
Third, and finally, the 2004 General Election ballot was
exceptionally lengthy. In the city of Columbus alone the
situation was particularly difficult as the ballot included
eight long bond issue questions and a referendum in addition to
State Issue One, school levies, and local options.
The final situation, Mr. Chairman and members of the
Committee, has been used by some in an effort to undermine to
the credibility of the election results specifically and the
benefit of electronic voting generally. On election night, as a
part of the unofficial results, the Franklin County Board of
Elections reported that candidate George W. Bush had received
4,258 votes in a precinct where only 638 voters had voted.
Once the mis-reported result was discovered, full-time
staff reviewed the election night report printed for the poll
workers from each machine in the Gahanna 1-B precinct. The
error was narrowed down to one machine, machine number 013717.
Staff then generated a machine memory report directly from the
3 memory tables in the machine in question. Staff did the same
for the cartridge used in that machine. The results from these
two reports were then compared to the election night results
tape generated by the machine for the poll workers and the
actual recorded results were consistent across all three
reports. The voting machine had functioned precisely as it was
supposed to have and properly recorded 115 votes for Bush.
Copies of these tapes are being submitted today for your review
and inclusion in the official record.
Mr. Chairman, Franklin County was the battleground county
of the battleground state. Many people, whether they wished us
well or ill, predicted a train wreck in Franklin County and
Ohio. Because of the proactive attitude of our professional
staff, their hard work and dedication, and that of our nearly
5,000 poll workers, Franklin County was not a train wreck.
Do we have room to improve? Absolutely. To that end the
Board conducted a thorough self-review and communicated this
finding in our 2004 Report to the Community which I have
submitted today for your review and for inclusion into the
record. I am pleased to report to you, Mr. Chairman and
honorable members of this Committee, that Franklin County rose
to the challenge in Election 2004, met its critics head on, and
successfully administered an election that was fair,
accessible, and accurate. Thank you very much, Mr. Chairman,
and member of the Committee.
The Chairman. Thank you.
[The statement of Mr. Anthony follows:]
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Ms. Millender-McDonald. Mr. Chairman, before you get
started, may I please ask Mr. Anthony to supply us with your
testimony. We must have the copy of your testimony so that we
can have it for my record as well as the record of the
Committee.
Mr. Anthony. Yes, ma'am.
Ms. Millender-McDonald. We have everyone's but yours.
Mr. Anthony. I am sorry. We just got finished with a couple
of hours ago. We will provide it.
Ms. Millender-McDonald. Thank you.
The Chairman. I will ask a few questions. I don't want to
dominate the entire time. I want to thank all of you for being
here. I think you are probably one of the most important panels
because you do this, and you do it all the time. You have a lot
of good poll workers, and do a good job with all the things you
have to deal with. Additionally, you are at the local level. I
think it is important, as we put together the Help America Vote
Act, that we consult the election center and the individuals
that represent you.
Also, I wish we could have gotten the Help America Vote Act
quicker. I wish the EAC could have been put together quicker.
One of the reasons it took us a long time was because we went
through this line by line and literally had a lengthy
conference committee where members actually sat there and
actually read legislation until 5:00 in the morning. Time after
time, members reread the bill, literally 30 times, Democrats,
Republicans, staff, and everyone in the room. With this you
don't want to get it wrong.
Now, it is not perfect, and that is why we are here today.
I would appreciate your comments on HAVA. I am not blaming any
one single entity or individual, but the delay Ohio had in
implementing HAVA made things difficult. That brings me to my
first question. I have some individual questions and some
generic questions for anybody that wants to answer.
Mr. Sciortino, I would like to address your concerns with
HAVA. Let us reiterate that HAVA, in fact, does not say that
Franklin County has to have the same system as Mahoning County
or Belmont County or other counties. That is an individual
decision of the states and the legislature. You do have the
issue of keeping your DREs, do you not? To clarify, isn't that
a major issue in being able to implement the vote?
Mr. Sciortino. Mr. Chair, that is precisely the major issue
that Mahoning County is facing. As I mentioned in my testimony,
back in 1998 we began looking at election systems wanting to
get away from optical scan into a DRE-based system. We now have
the DRE system. I am not advocating that the DRE system is a
perfect system whatsoever.
I am advocating that in terms of Mahoning County it is the
best fit for Mahoning County. With the passage of House Bill
262 we are faced with either retrofitting our DRE machines with
some type of voter verified paper trail mechanism which does
not exist with the current election system and software.
Or simply putting our DRE machines aside and having the
state purchase the DRE machines and repurpose an optical scan
system for Mahoning County. We spent $3 million on our DRE
system which under the Help America Vote Act complies because
we purchased this system under the existing '02 federal
guidelines and it is HAVA compliant after 2000.
But we face being noncompliant with the Ohio rules in 2006
so either we are grandfathered out of VVPAT or VVPAT is
repealed or VVPAT or set aside for the time being where some
workable standard for retrofitting will come into play or
simply the state purchases our machines from us and purchases
the new optical scanners.
The Chairman. You had optical scanners at one time in
Mahoning County.
Mr. Sciortino. Right.
The Chairman. In Georgia, when they converted from optical
scans to DREs, they went from 7 percent under or over error
rate, I hope I am quoting that correctly, which meant that
under the DRE system they can scan 71,000 more people than
under the optical scan. I don't know who they are or who they
voted for. It is irrelevant.
It is important that 71,000 more people could be counted.
Their vote could be counted under Georgia's rates. Do you
happen to have any statistics? You don't have to provide them
today, but do you have any statistics from Mahoning County
where you switched from optical scan or where you count error
under or over voting at that time?
Mr. Sciortino. Chairman Ney, with our reporting under
optical scan systems we were able to track over and under
votes. Depending on what type of office or race you are
targeting because you have drop-off in the ballot and for
purposes of our discussions today we can just use the
presidential election as the first office on the ballot. As you
go down the ballot there is always drop-off.
In other words, there are voters who consistently vote for
the presidential ballot and as we get down to the local offices
or the issues, I am not saying this is every time but there is
a drop-off. In terms of percentages or statistics, I can tell
you that our percentages for under votes, which I think are
more critical, under-voting was an issue on the paper ballot
system.
We did not have a precinct count optical scan system that
is compliant under HAVA. We had a centralized count optical
scan system which means the voter votes his or her ballot. It
is placed in a box and it is counted later that night at the
Board of Elections. Our under-vote percentages were higher,
five or six percent.
Under the DRE, as you know, you either vote on the
particular race by submitting your choices or you don't. Under-
voting was significantly reduced by way of DRE to less than a
percent. In fact, this past election it was even less. I don't
have the actual percent but I could get it to you.
I heard some numbers across the state and the panelist can
comment if they know, but the amount of under-votes across the
state on a punch card system was nearly 70,000 which is a very
alarming number when you talk about the presidential election.
The DREs certainly combated that problem and was one of the
reasons why we moved from optical scan to DRE.
Mr. Cunningham. Mr. Chairman, may I continue that
conversation?
The Chairman. Mr. Cunningham.
Mr. Cunningham. Our county has been running optical scan
since 1995, the only county in the state. I think when we talk
about optical scan we have to make sure we differentiate
between precinct count and central count. Our situation on
election day this year, I have about 45,000 ballots cast at the
polls. There were only 73 over-votes recorded so I think
precinct count optical scan probably is comparable to DREs in
the numbers dealing with residual votes.
The Chairman. I have a question about the DREs themselves
because there was the Paper Trail Bill. I would also like to
address the people in the country that felt prior to the
election that the machines would be rigged and all the things
that were said about machines being fixed, etc.
Maryland moved to address some problems with DREs to have
them checked in some random sampling. I am sure you are aware
of the nonscrutiny that the machines in the casinos go under,
so that they are not fixed, and people can win large sums
amounting to millions of dollars. We have had that discussion.
At the time that the bill was introduced, if we had went to
a system that would have required immediately that every state
would have to have the paper trail, it might have caused
complete chaos in the country. There was no way that could have
been implemented at that time. If that was going to be
considered, it should have been the original Help America Vote
Act. It is great to discuss and debate these things, but to
have implemented it would have been a problem.
However, nothing in HAVA says you couldn't have implemented
it. Our state chose to have the paper trail. Putting aside the
paper trail debate for a second, what security changes have
been made to DREs? I have always argued that you can fix the
machine to fix the paper trail. I am not a computer guru, but
that should looked into.
What about some random checks on DREs for states that
implement a policy? The EAC can grapple with this. By the way,
how you check these DREs for fraud? Does anyone have any
thoughts on DREs or how to check for fraud?
Mr. Vu. There is a lot of discussion revolving around the
security of this and I think this goes to the heart of the DRE
devices. One of the things that has been implemented, in fact,
in California was parallel testing and I think that would be a
wonderful effort in actually conducting for all states that
move toward the DRE is doing parallel testing to be able to
determine whether fraud is occurring or not.
It does mitigate some of the issues that we have with the
VVPAT standards or the VVPAT requirements as we have today but
I think parallel testing is one of the items that we should be
discussing and hasn't been discussed on a national level.
Mr. Sciortino. Mr. Chairman, just to follow that up, prior
to our election in Mahoning County we conducted a full 13-hour
mock election day coordinated and monitored by our local League
of Women Voters. They basically come in and pick any dozen
machines off of the rack and conduct an election for 13 hours.
It required volunteers. It required record keeping.
That type of random auditing if made a proper procedure or
necessary and routine as part of the Board of Elections in
terms of opening up these machines and allowing for independent
verification as to whether they have been accurately checked
and are calibrated. Robust and random audits I think is key
because you mentioned the voter verified paper trail.
I think the rules changed after the implementation of the
Help America Vote Act. I am not saying it is necessarily a bad
thing. I understand where people are coming from when they say,
``We need a verified paper trail.'' But at the other end, we
have to allow them the opportunity to come in and learn more
about the system. I think we do that maybe by parallel testing
or some random audits, mock elections and to be a part of
programming that to see how it is done.
A lot of times people call these systems computers. They
are not computers. Not in the sense that we use the terminology
computer. They are more like a calculator. They are redundant
systems of storing memory and that is basically it. But we have
to open up our doors and sort of share that to get that message
across.
The Chairman. Let us discuss provisional ballots for a
second. There has been discussion on the percentage count of
provisional ballots. Now, the implication is that jurisdictions
of the higher percentage count are somehow to be commended
while those with the lower percentage count are to be
criticized. I wonder, is that fair? Does this effectively
punish the jurisdictions that have a good registration list? If
every eligible voter is already on the list the provisional
ballot rejection rate would be 100 percent. Any comments on
that?
Mr. Cunningham. Mr. Chairman, I believe those of us in the
election business that do this every day are a little dismayed
by the discussion that has been taking place the last couple of
years because what is never discussed is the voter's
responsibility.
Ms. Millender-McDonald. The vote what?
The Chairman. The voter's responsibility is to register in
a timely fashion, to change their address with us when they
move, and to keep their voter registration current. Now, if all
of that is done, the voter has no problem whatsoever. We
certainly try on an ongoing basis through our local meetings
and so forth to put that word out. Particularly as we get close
to elections.
I don't think that the percentage of provisional votes
counted is a reflection of board function. I think it is more
of a reflection of voter function because boards were using the
same criteria across the board to count provisional ballots. I
believe in a county where there were probably a lower
percentage of provisional ballots counted, it was more
reflective that more unregistered people tried to vote in that
county than what the board function reflected.
Mr. Sciortino. Mr. Chairman, I think----
Ms. Millender-McDonald. Mr. Cunningham, you are saying that
provisional ballots and some of the inaccuracies that are being
counted is left up to the voter. Am I understanding you on
this? If I am not mistaken, you are putting all of the onerous
on the voter as opposed to the local county elected officials
having some type of education program that is ongoing because I
don't know about Ohio, I haven't looked at your immigration
percentages, but we have 87 languages spoken in California.
In fact, more than that now. There are many who perhaps are
not cognizant of this or are not readily aggressive enough to
come forward and ask for this. I am not sure whether or not we
should change which totally depends, if I am understanding you
correctly, that provisional ballots or the lack of intelligence
on how to move with that, should be left up totally to the
voter.
Mr. Cunningham. I think you misunderstood me with all due
respect. Provisional ballot is voted because there is some
anomaly in the voter's registration. I certainly would not even
attempt to make you believe that is all the responsibility of
the voter. Boards of Elections certainly do enter data
incorrectly from time to time or make mistakes.
But there is also a very large percentage of provisional
ballots that could be avoided if voters were to--perhaps if we
were to spend a little more time educating voters and voters
would spend a little more time educating themselves.
Ms. Millender-McDonald. Absolutely.
Mr. Cunningham. My point was in the discussions over the
last couple of years one thing that has been absent in all of
the discussions has been any identification of voter
responsibility in this equation. I am not advocating that in
lieu of Board of Elections responsibility but I don't think we
do ourselves any good. If we also in the course of holding
Boards of Elections accountable and talking about what is
required of them we are not doing ourselves any good. We also
don't educate the voter better as to what is required of them.
Ms. Millender-McDonald. I agree with you on that. Thank
you, Mr. Chairman.
Mr. Vu. Chairman, I think you were talking about the
acceptance rate. That is one of the things that, as I stated in
my testimony, the high percentage that Ohio had and Cuyahoga
had relative to accepting the provisional ballots may be also
on the reverse side of this that we were accepting it which is
an outstanding aspect of our staff to be able to accept them.
But it also may be an indicator as to what occurred on
election day and what confusion there was regarding provisional
ballots on election day. It goes back to some of the directives
that we were sent prior to the election, the time frame between
what we had to implement. The court decisions also, mind you,
and some of the things that we had to institute. The poll
workers had to be educated prior to the election.
The Chairman. I want to ask an additional question about
that. We will go to Mr. Anthony.
Mr. Anthony. I am sorry. I thought you were going to ask
the question first. You know, when it comes down to the whole
provisional voting aspect of this, unlike my colleagues here I
chair our Board of Elections. I don't do the day-to-day
operations of it but I do know that in the past years prior to
this election we had conducted our provisional voting
differently. We had allowed folks to vote and then it was the
bipartisan board's responsibility to take a look at those that
were in question to see if they were actually voting in our
county or not or if we could accept them.
We had asked for some clarification on that because we had
an inkling that things might change here in Ohio. As I said in
my testimony, we had asked for clarification in August of 2004.
We got no response back until September when the directive came
out.
Ms. Millender-McDonald. Who were you supposed to get a
response from?
Mr. Anthony. From the Secretary of State's office.
Ms. Millender-McDonald. That is what I thought.
Mr. Anthony. That last minute maneuvering with all this
stuff knowing good and well because I was also part of a law
suit in my role as a party chairman against the Secretary of
State for making that decision to make provisional voting only
allowed in the precinct where our voter lives. I believe my
colleagues also will tell you that is not quite the way we have
done it in the past elections.
Coming so close to the eve of election created the turmoil
and the confusion, I believe, that a lot of folks had as to
where they were supposed to vote. I believe in Franklin County
how we ended up having such good numbers in our provisional
voting, one, because we took a proactive position to actually
do, and we paid for this itself with no HAVA money, to do
advertising on public radio with my counterpart from the
Republican party telling folks exactly how to register to vote,
how important it is to register to vote, and also to get out
and vote.
Now, we did that. We found some money in our own budget and
we paid for that. We believe that helped us to keep our numbers
down somewhat. Then we took a proactive stance on mailing out
information to all of our voters at a cost to our county. We
did that because we knew that there would be problems with
provisional voting.
Not only did we do that but we also produced a Road and
Atlas Guide that we put at every voting location so that if you
came in there and you happened to be at the wrong polling
location because there was a lot of confusion with the
challengers and law suits flying, folks had no idea. It could
have been a bigger mess. Those Road and Atlas Guides allowed
our coworkers to at least tell folks where to go, which
precinct they should go to based on where they live and based
on their voter registration information.
What I think ought to happen, and the Franklin County Board
of Elections feels should happen, we should have a no-excuse
absentee voting which is AKA early voting. I believe that
should happen. I believe that we should go to early voting and
I believe that the election day should either be a holiday or
an employer should allow folks time to go vote.
The Chairman. On the holiday week we talked about that
during the Help America Vote Act. We couldn't ascertain whether
we would be encouraging more voting or whether people would go
on vacation. I am not saying it was good or bad, but we had a
huge debate for days on that.
Mr. Cunningham. Miller Lite would probably advocate the
holiday. I have to take some exception here. I really hate to
do it at my colleague's expense. My county has always counted
provisional ballots in the home precinct. I believe law has
always been very clear on that matter.
Now, if there were questions and the Board wanted
clarification, I understand that but I think Ohio law has
always been very clear that a ballot must be cast in the
precinct in which you live. Our county did nothing different in
this election than we have ever done in regards to county
provisional ballots.
Ms. Millender-McDonald. Mr. Chairman, may I say that your
law provides you the opportunity to only have persons fill out
provisional ballots in the precinct by which they are
registered. Am I correct on what you said, Mr. Cunningham?
Mr. Cunningham. Heretofore in Ohio provisional ballots have
been used by people who have moved since the voter registration
or have failed to update the voter registration prior to the
deadline.
Ms. Millender-McDonald. That is correct.
Mr. Cunningham. We have always endeavored. In fact, we even
have a transmittal slip that if you come into a precinct and
you are not in the book, the first thing our poll workers have
been instructed to do is call the Board of Elections to see if
we can direct you to the correct precinct. We have a
transmittal sheet that we use because usually the person comes
into this precinct and they say, ``We are sorry. You are not
registered.''
Ms. Millender-McDonald. And is this the practice that you
did on this last election?
Mr. Cunningham. Yes, ma'am.
Ms. Millender-McDonald. So, therefore, you did not follow
HAVA because HAVA said that you have the autonomy to give that
provisional ballot to a person irrespective of whether they
were inside of their precinct or not and then allow that ballot
to be counted later.
Mr. Cunningham. No. We were discussing there the
traditional Ohio provisional ballot.
Ms. Millender-McDonald. That is correct.
Mr. Cunningham. We had HAVA ballots available as well and
they would be issued if a voter insisted on voting. We tried as
much as possible to direct a voter to the correct precinct and
we always have done that.
Ms. Millender-McDonald. When you say a HAVA ballot, what is
different?
Mr. Cunningham. A HAVA provisional?
Ms. Millender-McDonald. Yes. What is different than just a
provisional ballot? Did you not just have provisional ballots
irrespective of whether it was HAVA or not? Did you identify
that as a HAVA ballot?
Mr. Cunningham. Yes, we have basically in our county HAVA
provisional ballots.
Ms. Millender-McDonald. Because it was in conflict with
their regular law? Is that the reason why?
Mr. Cunningham. It didn't serve the same purpose. The
traditional provisional ballot in Ohio is to accommodate a
voter that has moved or their registration is incorrect. It is
not to enfranchise----
Ms. Millender-McDonald. This is what I am saying. That goes
across the board, across the nation.
Mr. Cunningham. Yes.
Ms. Millender-McDonald. Irrespective of that with the HAVA
law----
Mr. Cunningham. If we attempted to send you to the correct
precinct and you insisted on voting in this precinct, we gave
you a HAVA ballot. According to court order, you were also then
given the affidavit saying you understood.
The Chairman. I want to move on to one other question. I
want my colleagues to be able to ask questions on some other
issues. On the provisional voting, I think Mr. Anthony said
that the rest of Ohio had provisional voting, but didn't have a
provisional ballot necessarily within the law. Is this correct?
Mr. Anthony. Yes, sir.
The Chairman. One of the issues we had with the Help
America Vote Act was this: people from different parts of the
country would come to me and say, that they were turned away
from the polls because of race. They were turned away from the
polls because of some condition, or they were turned away from
the polls because of their political party. Now, in some cases
that might be genuine. We won't say it hasn't happened.
In some cases it may not have happened, but the idea of
provisional voting, is so important. I discussed this with Mr.
Hoyer, our colleagues, civil rights groups, and members both
sides of the isle. Provisional voting means that you are not
turned away from the polls.
Now, in Ohio, I know there are cases where somebody walked
in, and I know some of the people this has happened to, and
said, ``I want to vote.'' Somebody without malice said, ``You
are not on our polls.'' They then walked out and said, ``I
wasn't given a chance to vote.'' They felt disenfranchised for
whatever reason.
So provisional voting, and, in a way, the Help America Vote
Act, codified the existing rules on provisional balloting in
Ohio, and made it clear that you have to give them a ballot.
Now, I know that local boards, all of you, Democrat and
Republican, are smart enough to say, ``By the way, it looks
like you are not registered in Belmore County anymore. You are
now in Monroe County.'' But that person insists, ``I still want
that ballot.'' ``You take it.'' The Help America Vote Act says
you accept it no matter what.
Now, counting it is a different story. Counting it is left
to local state law. The idea in the provisional voting was that
it would guarantee the right to cast a provisional ballot. I
just wanted to clarify that about provisional voting.
Let me go to my last question and then move on to my
colleagues. The long lines. Mr. Vu, I think you mentioned in
your testimony that the longest recorded wait time was two and
a half hours. It took place in the suburbs. We have heard
people claiming 10 hours. I respectfully quoted you to the U.S.
House because I was managing the electoral college on the House
side for the majority party with Mr. Larson, who was also
managing the House side. I quoted about the lines with regards
to the machines, where machines were placed, or were not
placed, in certain minority precincts.
I didn't quote either one of you because I didn't have
enough evidence. That is not putting anybody on the spot. I am
just saying that he addressed the long lines. Anything to add
on the long lines? The second question I guess I want to ask
you is, do you think we, the Federal Government, should cure
your long-line problem if you have one? Those are the two
questions I have.
Mr. Anthony. There were long lines in Franklin County. As I
said in my testimony, they were in all of Franklin County. The
problem we had in Franklin County was that we did not have
enough machines. I know there were folks out there that claim
we purposely took machines out of black areas and moved them
into white areas as a way to somehow suppress the black vote.
If that was our intention, it certainly didn't work in
Franklin County because there were 50,000 votes and most of the
votes came from the core city. What happened was purely
numbers. We did not have enough machines. We had an increase in
voter registration and we count all of our 847,000 votes as
active voters and we allocate machines purely number wise the
best that we could based on the 2000 election and the turnout
in the 2000 election. There were population shifts and there
were areas that grew more than other areas. We at least tried
to have two machines for each precinct and the long lines
happened. On election day all heck broke loose.
Mr. Chairman, we don't have a large staff but our first
order of business on election day is to make sure that those
machines that are out in the voting area are working and that
folks can vote. That took pretty much the better part of the
day for us. After that we started taking a look at our limited
resources of our employees and trying to get machines out to
areas that needed them.
We did the best we could. Our whole intent on election day
was to have brand new machines by 2003. That didn't happen
because we had House Bill 262 kick in on us and it placed a
whole new requirement on the types of machines that we could
purchase.
Also, we could not lease additional machines because the
machines we have were, I think, Danier. We don't have machines
just sitting out there waiting to be leased. Plus, we couldn't
have bought more machines even after we knew that this House
Bill 262 and some of the other HAVA requirements. Danier was
not on the approved list of vendors that Secretary of State had
previously approved so even if we could have bought some more,
they weren't on the list.
Not only were they not on the list, but our machines didn't
meet the HAVA standards and certainly not the House Bill 262
standard. We were between a rock and a hard spot which is why
we are trying to get clarification on provisional voting and
why we did all the other steps that we did to try to at least
make the process go a lot faster. What would help us currently,
I mean, right now we have an injunction on the Secretary of
State not to force us to use scan machines here in Franklin
County.
We feel that the long-range cost of those machines far
outweighs the benefit of them. We would like to continue with
our DREs and go to the next generation of DREs. Our hands are
tied right now because we have House Bill 262 and also some of
the HAVA requirements. And we are between a rock and a hard
spot because those regulations we have to comply by them by the
2006 election.
Any help you could give us and maybe some help in some
machines we could take a look at and those that we think would
fit better in Franklin County. We just don't believe the scan
machines will work in a large county such as ours. That is what
we could use some help on, to slow it down or some regulation
so that we could come into compliance and still take care of
our voters.
Mr. Cunningham. Boards of Elections historically handle
turnouts anywhere from 13 to 40 percent the other three years
of the cycle. We sort of toiled in obscurity those three years
and everybody pays attention in a presidential year.
Boards of Elections are funded and staffed by in large by
what their turnout normally is. I really don't know why it
would surprise anybody that when suddenly the turnout spikes to
the largest in the history of the country that the lines would
be longer.
Now, the other thing that plays into this is when these
equipment allocations are made it is usually before the
registration deadline. If you have allocated equipment to a
precinct and all of a sudden at the very last minute, this goes
to the issue we talked about today, 600 or 700 new
registrations get dropped on you in that precinct 30 days out,
there is not much you can do to adjust. You just have to try
and manage that as best you can.
We probably will not see more than a 15 to 20 percent
turnout on May 3rd in Ohio and the line problem suddenly won't
be there. Either we have to equip and adjust to 70 plus percent
turnouts which I think probably would be wasteful in the long
run to our county governments or we have to just figure out a
way to flex on the big years and understand that there is
probably going to be a little--I think every Board of Elections
in the state prior to election day was telling people in their
community, ``Be prepared to spend a little more time voting
this year. We just expect a higher turnout.''
The Chairman. I am going to move on. Mr. Vu.
Mr. Vu. I just wanted to respond to your questions about
Cuyahoga County specifically. Long lines occurred in urban and
suburban precincts. Unlike Frankly County where there were not
enough resources we had enough resources. We had 10,000 voting
devices. Almost approximately nearly 10,000 voting devices.
There was a study and analysis that was done by the paper
The Plain Dealer, where they assessed what our resources were
and also where we distributed those voting devices. We did it
across the board and we had one device for every approximately
115 registered voters. I think that was a really good number to
use for it.
What we learned, though, is two things. Again, as I stated
in my testimony, we saw voting behaviors as well as poll worker
issues that we didn't expect. One of those voting behavior
issues is that we had three precincts at a location, as the
Congresswoman had stated earlier, where we might have three or
four precincts in a polling location. When a voter sees a line,
they will go to that line as opposed to going and finding their
precinct.
Some of the actual experiences from talking with voters on
election day that I heard was that they had waited in line for
an hour to find out that they were in the wrong line. Also on
election day we found out that our poll workers, in some cases,
and I visited some of these polling locations and precincts on
election day, were confused as to the provisional voting
portion of it and all the other extraneous part of the election
that were coming last minute. Things like challenges. Things
like pre-challenges prior to election day so there were a lot
of things revolving in and around that area.
What The Plain Dealer article found out is that our
allocations of our voting devices was evenly across the board
between suburbs and urban precincts. One of the things that we
also found out is that poll workers didn't utilize all of their
voting devices on election day and that is something that can
be easily remedied for future elections. That is a concern, as
far as your question, and concern about funding level as Mr.
Cunningham approached you.
We are not funded at 100 percent capacity for every
election. That is due, in part, because of the nature of the
way we conduct elections and the four-year cycles that we have.
If we were going to do it, and which I advise as we move toward
election time, that local Boards of Elections get funded not
only for devices and equipment, but also for public education
efforts also.
The Chairman. It was an unusual election. I am not saying
that we should criticize all these people who turned out at the
polls. They die to vote in Iraq and Afghanistan. Real quick,
yes or no, because I do want to move on to my colleagues. Do
you believe that a federal commission, say the EAC, or the U.S.
Congress, should set how many machines you have, or should it
be done within the state or the current process here?
We will start with Mr. Cunningham.
Mr. Cunningham. If you want to do it efficiently, you
should leave it to the local jurisdiction.
Mr. Sciortino. As a member of the standards board and the
EAC I think there is a debate with the state's rights versus
the federal sovereignty and I think it needs to be left to the
states to come up with that.
Mr. Vu. I would say it needs to be left for each local
Board of Elections to determine that number.
Mr. Anthony. I would say each level of jurisdiction should
have that responsibility.
The Chairman. Thank you.
The gentlelady from California.
Ms. Millender-McDonald. Thank you so much, Mr. Chairman,
and thank you all. You are very professional men and you are
very honorable. In fact, it brings me to the point that there
are all honorable men and worthy women here anyway testifying
from this great state of Ohio.
I am going to start with Mr. Cunningham. Mr. Cunningham,
you did mention that you believe that Ohio should adopt a no-
excuse absentee voting because partially it would solve the
long lines. I couldn't agree with you more so if you would get
with your representative, Mr. DeWine, who is presenting this HB
House Bill 3. He is in a quandary as to whether or not that
should be part of that bill so maybe you can help him by
telling him that this is something that you at the local level
deem important for him to have in his field.
Mr. Cunningham. The association has presented that
testimony.
Ms. Millender-McDonald. Very good. Secondly, and I am happy
that you are open to that, I hope you are also open to same-day
voting as well as some of the variations of voting that are now
beginning to take place.
Mr. Cunningham. I heard you mention it earlier. I am not
sure what you mean by same-day voting. Do you mean same-day
registration?
Ms. Millender-McDonald. That is right, registration.
Mr. Cunningham. I would be adamantly opposed to same-day
registration.
Ms. Millender-McDonald. And why is that?
Mr. Cunningham. It is a recipe for fraud. I am sorry. That
is not a workable solution.
Ms. Millender-McDonald. Even with electronic devices now
and high technology that can be verified?
Mr. Cunningham. There are only three states that use it.
That is probably the reason why. I don't think that is a good
idea in a practical application.
Ms. Millender-McDonald. You mentioned also in your
statement that you believe that persons, advocacy groups who
solicit registration forms should be required to turn in all
registration forms and not just those that are endemic to their
cause. That is against the law if they don't. That is really
against the law.
Mr. Cunningham. Provided that you know.
Ms. Millender-McDonald. They are supposed to do that and if
there is anyone who is doing that practice, we should know
about that. Nobody is supposed to withhold any registration
forms irrespective of whether it is in opposition to what you
think or not. And given that provisional ballots can and do
enfranchise voters and so I do believe in that irrespective.
The other thing that you mentioned that Congress and our
chairman is absolutely calling for immediate and full funding
of HAVA. That is really a position of all members of Congress,
not only those of us who are on this committee. Congress really
does have a deep commitment to the principles set forth in HAVA
and, thereby, should fund that. You know that we have a war and
the President is calling for some $80 some billion. We, too,
have to be cognizant of our fiscal constraints and all states
will have to as well because of the various amounts of money
that is being taken off for other reasons.
The last thing that I would like to ask you, Mr.
Cunningham, is that were you giving active funding from the
state to carry out the mandates on HAVA? Did you get that
funding in time? Secondarily, were the last-minute directives
from the Secretary of State in conflict with Ohio's law as it
has been outlined by Mr. Anthony many times, the House Bill
262?
Mr. Cunningham. The first part of the question is the
funding? Did I receive enough funding?
Ms. Millender-McDonald. Yes.
Mr. Cunningham. Well, there is never enough money.
Ms. Millender-McDonald. Exactly.
Mr. Cunningham. There is never enough money. I am not going
to take issue with the Secretary of State on that matter. Could
we have used more? Of course you can always use more.
Ms. Millender-McDonald. And I don't intend for you to do
that. I am not putting you in that position but was there a
formula?
Mr. Cunningham. Yes. I believe the formula was evenhanded
across the state. I don't think that I got any less than
anybody else.
Ms. Millender-McDonald. Was it in adequate time?
Mr. Cunningham. I don't have any complaints with the time
frame. I think it flowed to us. Quite honestly, the last minute
directives were only a part of the confusion. There were a lot
of confusing things going on before the election leading right
up to it.
Ms. Millender-McDonald. They were not the last-minute
directives solely.
Mr. Cunningham. Absolutely not.
Ms. Millender-McDonald. There were other things.
Mr. Cunningham. Political activists were very involved. We
have never had attorneys in our office. We have never had
activists in our office. I mean, they were quite honestly very
disruptive, very distracting. This is probably the single
most--I am pushing my 8th year and the November 2004 election
was probably the single most difficult thing I have ever tried
to manage in my life.
Ms. Millender-McDonald. They were not supposed to be
disruptive. Or were they?
Mr. Cunningham. Well, for instance, the card we send out to
voters to tell them where they are registered, what your
precinct is, I spent the better part of an afternoon arguing
with somebody that the type on the card was too small when it
is the same card we have been sending out for some time. It is
the default setting of the printer. My belief, ma'am, is that
not everyone in November of 2004 was dealing in good faith.
There were people on the ground and present in Ohio----
Ms. Millender-McDonald. Not everyone in 1870 was dealing in
good faith. I mean, you never have everybody dealing in good
faith no matter what year it is.
Mr. Cunningham. I am confident my colleagues were dealing
in good faith. There were people that were tempting to create
chaos and confusion in hopes that out of it would come
something that could be exploited.
Ms. Millender-McDonald. That is unfortunate.
Mr. Cunningham. I would probably say to you that I think
the four people at this table, and we are outnumbered, by the
way. Our association has far more women than it does men.
Ms. Millender-McDonald. Thank you very much.
Mr. Cunningham. I think it is absolutely stunning that the
election officials in Ohio pulled the election off in the
fashion that they did, managed it the way that they did, and
succeeded as they did in light of the absolute chaos and
confusion that was taking place.
Ms. Millender-McDonald. The confusion did not come from
anyone particular group. Am I correct?
Mr. Cunningham. No, ma'am.
Ms. Millender-McDonald. They were on both sides of the
political spectrum?
Mr. Cunningham. It is everybody. Yes, ma'am.
Ms. Millender-McDonald. Okay. Fine.
Mr. Cunningham. I am not taking any issue with one group or
other group.
Ms. Millender-McDonald. Mr. Sciortino, first of all, you
should tell your state representatives that Ohio was the swing
state. Thereby, this was the reason that all eyes were on Ohio.
Please tell that to your state reps that were here earlier,
especially Senator Jacobson?
Mr. Sciortino. I have told him that personally but I will
do it again.
Ms. Millender-McDonald. Sometimes the second time. It is by
rote. You have to constantly remind people. You also said that
there were two and a half weeks leading up to the election.
There were changes in directives and other things, last minute
directives and that type of thing. Also Mr. Blackwell provided
daily telephone conversations to you guys.
Did you not have his total input for the two-and-a-half
weeks? Did you have a statewide or how wide spread was your
campaign election education so that you would have been able to
have some intelligence on a lot of things that perhaps could go
wrong or just the mere fact of educating the masses on what to
expect?
Mr. Sciortino. Leading up to the election, again, it was my
job as president of our association to try and conceptualize
all the issues that were facing the association. Again, as time
progressed it is not as though we knew what was going to happen
next because this was not a regular election year. There were
issues about some late directives but that wasn't the
impounding reason.
Ms. Millender-McDonald. But given that your state was the
swing state, did you not recognize that you were going to have
an abundance of new registers?
Mr. Sciortino. Sure, and that is where we had dialogue
between the county boards, ourselves. There was some litigation
popping up over provisional voting and what not. We met with
the Secretary and asked the Secretary for additional resources
in terms of improving communication.
Ms. Millender-McDonald. Was it given to you?
Mr. Sciortino. The output of that was this daily----
Ms. Millender-McDonald. Was that given to you, the funding
for more outreach and education?
Mr. Sciortino. Not specifically to each county but the
daily telephone conferencing with regards to how on a daily
basis boards can better handle these election issues.
Ms. Millender-McDonald. But that was only two and a half
weeks out. We are talking about really months to get this thing
going.
Mr. Sciortino. In all honesty, I don't think a lot of the
major issues hit until September, October. I was more worried
about administrative issues, you know, handling questions from
these lawyers that come in. Then as questions started to come
in to our boards, I was getting other questions from other
Boards of Elections. Let us try and communicate better. That
was our biggest goal.
Ms. Millender-McDonald. Those administrative questions
should have been answered by you. How about poll workers? Were
they trained adequately?
Mr. Sciortino. I can only speak for Mahoning County and I
am sure across the state at least a month out we began training
poll workers the presidential year. As well as in the primary
every poll worker was trained as well as our auxiliary poll
workers.
Ms. Millender-McDonald. It should be more than one month.
Although you are not part of the Secretary's state association
but it should have been ongoing really for at least a year out.
We recognize that this was a presidential year. You being the
president of the Ohio Association of Elected Officials
certainly you would have, and I would like to think, that you
would have been able to discern early on that this was going to
be that rash of registrants and provisional ballot requests and
you would have been able to educate people much earlier than a
month or two.
Mr. Sciortino. Well, are we talking about the voters
themselves or poll workers?
Ms. Millender-McDonald. Poll workers so that they will
then, in turn, speak to various voters. A lot of the lines
could have been circumvented it seems to me if poll workers
were more educated to some of the things that would happen and
they would direct them to the various precincts within the
areas they were supposed to go to.
Mr. Sciortino. Well, two things. We do training following
state guidelines in terms of poll worker training and what not.
I tend to do it 30 days out because any sooner than that you
run into whether or not retention in terms of what they have
learned is going to carry over into election day. I think that
is what we do in our county. I think that is pretty consistent
across the state. The other thing is there are financial
burdens because we pay our poll workers to come to training.
Ms. Millender-McDonald. Are you suggesting that House Bill
262 is in conflict with HAVA?
Mr. Sciortino. How is that?
Ms. Millender-McDonald. In that it seems that all of the
law that you follow tends to be the Ohio state law and not the
integration of HAVA with that law or the HAVA law as opposed to
the Ohio law.
Mr. Sciortino. Well, we made every attempt to, and I think
we have, train in terms of poll workers train on the new
provisions contained in HAVA absolutely. I don't know, you
know, what specific portion of House Bill 262 gave additional
resources for the county to pull upon other poll workers.
Obviously the voter verified paper trail issue comes into play
with 262. Our colleagues, every Board of Elections tried to
have every new training source available to bring HAVA into
play.
Ms. Millender-McDonald. Mr. Vu, speak about poll worker
training and HAVA is very strong on that. Does that House Bill
that we keep hearing about and that Mr. Anthony spoke about
many times, 262, does it talk about poll worker training?
Mr. Vu. House Bill 262 outlines voter education and the
allocation of $2.5 million, actually $5 million, 2.5 going to
the Secretary of State to educate the entire state and then the
other 2.5 allocated on a formula basis to all the various
counties with a minimum of $5,000. Then this past election we
did not receive any of that $2.5 million. None of those monies
were appropriated to any local Board of Elections that I am
aware of. I am sure that occurred.
Ms. Millender-McDonald. And, yet, that is an Ohio law that
you were supposed to get $2.5.
Mr. Vu. That is correct, for local Boards of Elections.
Ms. Millender-McDonald. Local boards.
Mr. Vu. Let me, if I may, describe some of the training
efforts that we did. Of course, we can always do better with
our poll workers. As you probably know, poll workers are
citizens like you and I. On election day they serve as election
officials for a 13-hour time frame. There are some retention
issues that we have.
In this past election we had training that occurred during
the primary election and also the general election. The primary
election occurred in March and the general, of course, in
November. During the general election we overhauled our poll
worker manual and instituted a highlight page because many poll
workers have done this for years.
In fact, in once instance we actually gave a resolution to
one of our poll workers because they had done it for 50 years.
As you probably can tell, they go to a poll worker training
year in and year out. One of the complaints that we hear is,
``It is the same stuff. Why should we go?'' We institute
different things to kind of change the format, especially this
year.
Ms. Millender-McDonald. You need to tell them that they
have to go.
Mr. Vu. We did. It is a requirement for Cuyahoga County for
them to attend, although they had by statute met their
obligations for primary election training. Of course, we wanted
them for the November election to have training for our poll
workers. The reason why is because there are so many different
things that they had to be aware of like chads.
Also things like various directives that had occurred. By
the time that we were able to train our coworkers was almost
after the fact of when we started receiving the directives. For
Cuyahoga County we have to recruit 6,000 poll workers for
election day, plus 500 as a reserve for election day. This
becomes a mass last-minute education effort on election day to
send out all this information and on election day we actually
were sending out more information for poll workers. You could
just imagine----
Ms. Millender-McDonald. Election day is too late to be
sending out any information about what one should be doing, for
Heaven's sake.
Mr. Vu. That is what we were told.
Ms. Millender-McDonald. No wonder these people were so
flustered because you are sending out these directives. The
registration cards that you mentioned in your statement which
were missing some vital information but you did not receive
directions in this matter or directions from the Secretary of
State?
Mr. Vu. That is correct. I believe the reason why is
because there is nothing within state statute that talks about
incomplete registration cards. One of the things, the National
Voter Registration Act, that was passed in 1993 essentially did
was erred on the side of the voter and that is the way we have
proceeded once we did not receive any indication from the
state.
Ms. Millender-McDonald. The best practice tool kit that was
put out by EAC, did any of you follow that leading up to the
election given that they have the best practices for many
states that have proven to be very useful?
Mr. Vu. Yes. I did look at the best practice guidelines. I
actually did. There are a couple of check-off lists that I used
as well as the Cuyahoga County Board of Elections used. In
fact, what I did was used that but also coupled it with the
election center checklist that they had and also what was
unique for Cuyahoga County. So I essentially created a separate
template of best practices for Cuyahoga County.
Ms. Millender-McDonald. Before I get to Mr. Anthony for the
last questioning, Knox County. Who takes care of Knox County?
Any of you?
The Chairman. That is me.
Ms. Millender-McDonald. I was told that there were many,
Mr. Chairman, students who went to a neighboring school that
had to wait until 4:00 a.m. in the morning to vote.
If that is not a 10-hour plus time span given the fact that
voting starts at 7:00, 8:00, and that they were in line at a
reasonable time and had to wait up through 4:00 a.m. the next
morning, my goodness. What in the world are we going to do to
circumvent that from happening again with this younger
population who we are trying to get to buy into the political
process? Mr. Cunningham.
Mr. Cunningham. First, I think it should be noted that was
one precinct in thousands in the state of Ohio.
Ms. Millender-McDonald. Anytime one voter is
disenfranchised or has to stand in line that long, it is as if
everyone throughout this country.
Mr. Cunningham. I do not run Knox County. My understand----
Ms. Millender-McDonald. I am sorry?
Mr. Cunningham. I said I don't really have anything to do
with Knox County or run it but my understanding through the
association is that some of that issue is attributable to what
we have been talking about where literally thousands of
registrations were dropped on the Board of Elections at the
registration deadline and they were simply overwhelmed and
unable to compensate for that many people, that many new
registrations in that precinct. I am not saying that is totally
the reason but in part the tremendous number of new
registrations in that precinct played a role in the length of
those lines.
Ms. Millender-McDonald. Mr. Anthony, will you clarify for
me what you mean by saying, and I put this in quotes because I
am trying to say it verbatim, ``Provisional ballot voting is
not like we used to do or accustomed to doing. You know there
would be problems with provisional ballots.'' Can you kind of
explain what you are talking about here?
Mr. Anthony. Mr. Chairman, Madam Committee Member, I have
been on the Board of Elections, I believe, this is my 7th year.
The way we have always done our provisional balloting or voting
in Franklin County is that we always try to err on the side of
the voting. We feel if a person took the time to come out and
go vote, that we should do what we can to make sure that
person's ballot is counted.
In the past what we have done in Franklin County is if a
provisional vote comes before us, before the Board of
Elections, the staff takes a look at it and makes sure that
they are a registered voter, that they live in the precinct,
and they basically qualify. Those folks' vote would be counted.
The ones where we had concerns about, they would bring them
before the bipartisan board, two Democrats and two Republicans,
and we would take a look at those and then they would tell us
what their concerns were. We would make every effort to either
allow that person to vote, what items they could vote on that
ballot if they are voting out of precinct. There may be some
local options or maybe a split----
Ms. Millender-McDonald. Right.
Mr. Anthony. What we would do then is we would allow that.
If they were a qualified voter, then we would accept that vote.
It would be done by bipartisan. All four of us would have to
agree to it.
Ms. Millender-McDonald. And that qualified voter would be
whom?
Mr. Anthony. They would be in our voter file.
Ms. Millender-McDonald. Irrespective of whether they were
in the precinct by which that provisional----
Mr. Anthony. That is correct. If they were on our voter
rolls as a registered voter.
Ms. Millender-McDonald. Okay. So provisional ballots were
distributed rather fairly across the counties irrespective of
whether those voters were actually voters in that precinct?
Mr. Anthony. What we did was we allowed--anybody that
wanted to vote could vote and I think that is the clear
distinction. Congressman Ney said it real clearly there that we
instructed out poll workers if they come in there, you let them
vote. You don't sit there and argue. You let them vote. Give
them their right to vote. We in the past figured that stuff out
at a board meeting. That is where it was figured out.
Ms. Millender-McDonald. Also, Mr. Anthony, you said that
there were increased voter registration and you did not have
either the machines to fulfill the voters' wishes to vote. Am I
correct in that assessment of what I think you said?
Mr. Anthony. Mr. Chairman, Madam Congressperson, that is
correct.
Ms. Millender-McDonald. And, yet, Mr. Vu said that there
were 10,000 election devices. Would that not have been--could
that not have been some devices used to help this gentleman in
his county or what were you saying?
Mr. Anthony. Mr. Chairman, Madam Congressperson, we use two
different voting systems. He uses a punch card system. We use a
DRE type system in Franklin County so there is no way we could
have shared equipment and there was no way that I could have
acquired additional equipment because of the reasons I stated
earlier which were:
1. They would not have met the HAVA requirements; 2. They
wouldn't have met the Senate Bill 262 requirement; 3. They
wouldn't have met the requirements on the Secretary of State's
preferred vendor's list; 4. There would have been maybe some
compatibility issues with our current system by bringing in new
Danier machines. They were Danier machines that we had. Because
of all of that it became totally not prudent for us to even try
to pursue this.
Ms. Millender-McDonald. It was very honorable of you to 30
days out map outline differences of precincts as you outlined
here where people should go to vote. It was three weeks, you
say, from this information. Yet, you put out these cards to
folks to let them know where they were supposed to go. Am I
correct on what you said there?
Mr. Anthony. Yes, ma'am. It is two different things there.
We had found out that a lot of groups had gotten the voter
registration information from the Secretary of State's office.
That information is probably six months old so it is not real
current information. We provide the information to the
Secretary of State's office. Then what happened----
Ms. Millender-McDonald. Are you saying information from the
Secretary of State's office is old?
Mr. Anthony. It is six months beyond ours. We give to him
and then we----
Ms. Millender-McDonald. How can that be?
Mr. Anthony. All that is getting ready to change now with
the new voter registration system. During this time frame----
Ms. Millender-McDonald. That is awful.
Mr. Anthony. What happened was a lot of those groups
purchased those lists from the Secretary of States and had the
wrong precinct on them. That information was sent out to voters
telling them where to go vote. There were phone calls out to
some voters to tell them where to go vote and it was not the
correct information. We took it upon ourselves that we should
do that.
Ms. Millender-McDonald. So your Secretary of State was
blaming you guys for this information.
Mr. Anthony. The other part of this, too, if you have got--
these guys probably know this.
Ms. Millender-McDonald. You can just answer yes or no on
that.
Mr. Anthony. Yes. What happened is we are taking in voter
registration forms on a daily basis so our stuff is up to date.
Our information is up to date. We transmitted to the Secretary
of State's office. I am not sure how that process works.
Ms. Millender-McDonald. Obviously they are not checking it
or even implementing it if it is six months late for Heaven's
sake.
Mr. Anthony. At any rate----
Ms. Millender-McDonald. You don't have to answer that. You
have already done that by your silence.
Mr. Chairman, thank you so much. After Ms. Tubbs-Jones we
would like to introduce you to what you have told us what would
be some of the things that we can improve HAVA after the
gentlelady speaks.
The Chairman. Just for the record, Knox County is a
wonderful county that I represent.
Ms. Millender-McDonald. I think it is because it sent you
to Congress. That is correct.
Ms. Tubbs-Jones. Mr. Chairman and Ranking Member, gentlemen
thank you very much for coming this afternoon. I am sitting on
this Committee by opportunity of the Chairman and the Ranking
Member so I don't get as much time as they do in asking
questions or getting answers so I would appreciate if you could
to restrict your answers specifically to my question.
Otherwise, I will run out of time and not get to ask all the
questions I would like. I, again, would like to thank all of
you for coming.
Let me start with Mr. Cunningham. Mr. Cunningham, how many
people vote in Allen County?
Mr. Cunningham. Total registration of 67,000. Turnout is 50
some thousand depending on the election.
Ms. Tubbs-Jones. Mr. Sciortino.
Mr. Sciortino. Yes.
Ms. Tubbs-Jones. How many people vote in New York County?
Mr. Sciortino. We have about 190,000 registered voters.
Roughly close to 70 percent turn out.
Ms. Tubbs-Jones. Mr. Vu, Mr. Anthony, I know the answer to
that question for both of you. I spend a lot of time in both
your counties.
Mr. Cunningham, in the conversations that we have been
having about absentee balloting and all those other things. One
of the things that I want to assure and all of us want to
assure is that every vote counts. In some communities that
means different things for different people. How many workers
do you have on election day? Pollers?
Mr. Cunningham. Approximately 600.
Ms. Tubbs-Jones. Approximately 600.
Mr. Cunningham. Right.
Ms. Tubbs-Jones. How many do you have, Mr. Vu?
Mr. Vu. 6,000 plus.
Ms. Tubbs-Jones. 6,000. It is a lot easier to manage 600
than 6,000.
Mr. Cunningham. I have a staff of five and he has a staff
of 70 or 80.
Ms. Tubbs-Jones. Regardless of that, sir, but it is a lot
easier to manage 600 people than it is 6,000.
Mr. Cunningham. I would say it is all relative, ma'am.
Ms. Tubbs-Jones. Okay. Well, I see I am not going to get an
answer out of you on that one, Mr. Cunningham. Let me go
forward to something else and say to you one of the things that
is important and we are looking at, all of us recognize that
poll workers often will say, and I heard Mr. Vu say this, that,
``I've been working at a polling place for 20 years.'' ``I've
been working here 15 years.'' ``I've been doing this all my
life and no matter what the mandate says, I am going to do it
like this anyway.''
Not just elections but anywhere. Pretty fair statement.
Conceptually it is almost like being in management. People say
management is like oil and water. The directors are the oil
floating on top of the water and the people are at the bottom.
The oil doesn't stay at the bottom of the glass. The directors
stay on top. You are familiar with what I am talking about as a
manager.
What I am trying to get to is that conceptually all of us
could have done all the things we need to do on election day to
assure a perfect election but a poll worker could have said,
``The hell with them. I am not going to do it like that. I've
been doing this all my life and I am going to keep doing it.''
Which meant that they control how many machines were put
up, how fast the people made it through the process, whether or
not they were given a provisional ballot, all of those other
things. This is not degradation to poll workers because I love
poll workers. I am an elected official and I love poll workers.
Without them we wouldn't have a process. Conceptually those
are the kind of things that you can't control as a manager or
on election day. I will go on to my next question even though
that might have been a statement which is what we do in
Congress occasionally.
How much money, Mr. Cunningham, did you receive for voter
education in Allen County?
Mr. Cunningham. None.
Ms. Tubbs-Jones. How much money did you get, Mr. Sciortino,
for voter education in your county?
Mr. Sciortino. I didn't get any.
Ms. Tubbs-Jones. Mr. Vu, how much money did you get for
voter education in your county?
Mr. Vu. None.
Ms. Tubbs-Jones. Mr. Franklin--Mr. Franklin, I am sorry.
Mr. Anthony, how much money did you get in your county for
voter education?
Mr. Anthony. We got zero from the state but we have 200,000
from our own internal funds.
Ms. Tubbs-Jones. You got none from the Secretary of State
or any state organization?
Mr. Anthony. That is correct.
Ms. Tubbs-Jones. And you are all aware that the Secretary
of State received money from voter education from HAVA. Are you
not, Mr. Cunningham?
Mr. Cunningham. Yes.
Ms. Tubbs-Jones. Wouldn't it have helped you in this
process had you received any money for voter education?
Mr. Cunningham. Obviously, yes, ma'am.
Ms. Tubbs-Jones. And it might have cured some of the issues
that were floating around throughout this election had you
received any of that money. Correct? Another interesting thing
for me is HAVA requires the Secretary of State to come up with
a plan to meet the HAVA requirements. Are you aware of that?
Are all of you aware of that? Have any of you been brought into
a meeting by the Secretary of State to help put together a plan
for Ohio?
Mr. Cunningham. No.
Ms. Tubbs-Jones. Have you been asked?
Mr. Cunningham. No.
Ms. Tubbs-Jones. Have you been asked?
Mr. Sciortino. No.
Mr. Vu. No.
Ms. Tubbs-Jones. Have you been asked?
Mr. Anthony. No, ma'am.
Ms. Tubbs-Jones. And you are the people where the rubber
meets the road. Is that correct, sir? Gentlemen?
Mr. Cunningham. Yes.
Ms. Tubbs-Jones. It would have made sense for you to have
been brought to the table for party create in Ohio. Don't you
think so, sir?
Mr. Sciortino. Yes.
Mr. Vu. Yes.
Mr. Anthony. Yes, ma'am.
Ms. Tubbs-Jones. Mr. Chairman, I know my time is up.
Gentlemen, I thank you for the opportunity to speak with you
this afternoon. I look forward to future opportunities. Please
let me hear from Cuyahoga County. I take an oath to represent
all the people. I welcome your comments about elections and I
look forward to helping you in the future. Thank you very much.
The Chairman. To the panel, just real quick, a question to
Mr. Cunningham. You talked about a requirement that groups
submit all registrations they gather, not just for the
candidate they favor. Did you hear of groups starting
registrations?
Mr. Cunningham. I don't have any empirical data that would
stand up in a court of law or anything like that but it has
been pretty well rumored and talked about that it did take
place.
The Chairman. But you don't have any data on it?
Mr. Cunningham. No, but I think we certainly have people
that claim they filled out voter registrations. The problem is
we don't know who circulated those registrations so we have no
way to go back.
The Chairman. Mr. Vu, you mentioned one who dumped 16,000
registrations on you in August and they were dated March and
February?
Mr. Vu. Some of them, yes.
The Chairman. Was it a certain group or across different
groups?
Mr. Vu. There was one specific group. That group was
Project Vote.
The Chairman. Project Vote. Has anybody told you why they
did that?
Mr. Vu. No. There was no explanation. From my understanding
it was to start the process to reach a certain number from my
understanding but no one directly came in and told me why they
were submitting the registration cards like they did.
The Chairman. Thank you. How about the implementation of
the ID requirement, briefly. How did that go? We haven't
touched on that. I am just curious because there isn't an ID
requirement in HAVA.
Mr. Cunningham. It was confusing. We did manage to work it
out. Probably the biggest problem----
The Chairman. When we created HAVA we provided a lot of
latitude. You may not have a driver's license, so we gave out
bank card stickers. We gave a lot of latitude, I know we put
that into the bill, which probably should have caused----
Mr. Cunningham. It caused the poll workers more problems
than it caused us personally in the office. The other issue was
it took us--when that provision was ordered to take place when
we begin to start tracking who registered by mail, our software
didn't have a field in it for that so we had to do it by hand
until we could quickly get the software to do it. We are
through it, though. It will be okay.
The Chairman. So you feel more comfortable?
Mr. Cunningham. It will be better next time, sir.
The Chairman. Also, were there any bad reactions from
voters?
Mr. Cunningham. There was mixed reaction. In our county
some voters it is like when you ask them for ID at the bank.
Some people appreciate it and some people get offended by it. I
would say it was pretty mixed all in all.
Mr. Sciortino. I would agree.
The Chairman. I will clarify for you. I am sorry. First-
time voters.
Mr. Sciortino. First-time voters, correct. I agree with
Keith. I don't want to expound anything more. I was allowing
individuals who didn't have that on their registration card
to--I was providing notice of that before the election--to get
that in as quickly as possible because if we can solve a
problem before election day, if I can target who is going to be
a provisional voter and try and get them on the roll before
election day, that solves a problem. It is going to allow that
voter to go through the process. On election day let us flag
that voter registration book and that voter and ask them that
question and get that ID. Some didn't like it, like Keith said,
but I think we have a better handle on it now.
The Chairman. Mr. Vu.
Mr. Vu. I would say the exact same sentiments as the two
gentlemen to my right. The only other item that I would add to
that also is that when we start implementing issues like ID
requirements and trying to train poll workers as to a first
time by mail registered voter per HAVA we start being very
concise and specific. Again, this becomes a poll worker
training issue which we need to get better at and in due time
it will mature.
One of the things that we learned out of this is that poll
workers were, again, similar to like the primary elections were
asking individuals that were supposed to provide identification
so there was some miscommunication on that end as to what the
poll workers were doing.
Ms. Millender-McDonald. Mr. Chairman--oh, you want him to
answer this question.
The Chairman. Mr. Anthony.
Mr. Anthony. I have the same answer. It generally worked
very well for us and it was a poll worker training issue. The
report that we submitted to you we are talking about trying to
be a little--trying to do more poll worker training partnering
with our high school and university level groups to try to help
us.
The Chairman. Gentlelady.
Ms. Tubbs-Jones. I think the gentlewoman needs to raise one
more question if she is permitted to do that.
Ms. Millender-McDonald. Mr. Chairman, thank you very much.
Mr. Vu, just one more question, or quick series of questions.
In fact, the Cuyahoga County Board of Elections made the
decision to not follow a directive of the Secretary of State
with regard to the provisional ballot. Is that correct, sir?
Mr. Vu. I apologize that I need to elaborate on this. We
had a forum, a road map to the 2004 election forum where we
stated that there was a directive and that we were going to err
on the side of the voter that if the voter, similar to what
Chairman Ney was saying, is that if the voter insisted that
they were in that precinct, that we would give them that
provisional ballot.
Of course, this was contrary to a directive that we had
received because we had specifically stated and asked for
clarification on this directive as to whether or not we could
issue a provisional ballot. It was the issuing portion of it.
Ms. Millender-McDonald. Right.
Mr. Vu. Whether we could issue a provisional ballot to the
voter and the answer to that was no. Of course, that went to
litigation and the appeals court, 6th District Appeals Court,
said it was parallel to what the Board of Elections in Cuyahoga
County thought.
Ms. Millender-McDonald. In fact, the Secretary of State
said to you if you don't follow his directive, he threatened
every member of that Board of Elections for choosing to make
that claim. Did he not?
Mr. Vu. That is correct. We received a letter from the
Secretary of State's office that if we did not follow the
directive that the director and its board may be dismissed.
Ms. Millender-McDonald. Thank you. I better follow up on
that. Was this the only county where that threat was made by
the Secretary of State or was it all of you?
Mr. Cunningham. I wasn't threatened.
Mr. Anthony. It was implied.
Ms. Millender-McDonald. I am sorry?
Mr. Anthony. It was an implied threat.
Ms. Millender-McDonald. Sir, threats are not implied. They
are directed.
Mr. Anthony. Yes, ma'am.
Ms. Millender-McDonald. They are direct threats. Threats
are not implied.
Mr. Anthony. We didn't receive communication.
Ms. Millender-McDonald. Why is it that your county was the
only one where you were threatened or the members of your
board?
Mr. Vu. I believe it was out of the forum. There was an
article that was written as a result but there was no
communication on our end from the Secretary of State's office
asking for clarification of what was said in the forum. It was
an article that was written as to what our position was
relative to the provisional voting that prompted the letter to
be directed to the Cuyahoga County Board of Elections.
The Chairman. Did you deem it to be a threat or the
Secretary of State's perception of following current law?
Mr. Vu. It was the Secretary of State. According to the
letter it was the Secretary of State and the Board of Elections
following the law.
Ms. Millender-McDonald. If you did not then?
Mr. Vu. That any and all including dismissal of the Board
and its director would be----
Ms. Millender-McDonald. And that is in your law?
Mr. Vu. It is the prerogative of the Secretary of State and
the authority of the Secretary of State.
Ms. Millender-McDonald. No, it is not in the law.
The Chairman. It is actually in the law.
Mr. Cunningham. We are appointed by the Secretary of State
and he has the authority to remove us from office if he thinks
we are not doing our job.
The Chairman. Whether we like it or not it is in the law.
Mr. Cunningham. Yes. He is the boss.
The Chairman. Whether we agree or not he carries out the
law.
Ms. Millender-McDonald. Therefore, it is not bipartisan by
any means.
Mr. Cunningham. I don't think it is fair to say that
because the situation in Ohio is----
Ms. Millender-McDonald. Let me just leave this, sir. It is
my time to do that, sir. Mr. Chairman, I will do this and be
done with it. Volunteers from all over the world took part in
the Fair Election International Project spearheaded by global
exchange, an international human rights organization.
In December the Organization released a report summarizing
the election observations conducted by 15 election experts and
democracy advocates from five continents who observed voting
activities in Florida, Ohio, and Missouri.
The report concluded that, ``Despite reforms undertaken in
response to the 2000 election, confidence in and the equity of
the United States electoral system continues to be compromised
by ambiguities and election standards, partisan oversight, and
problematic voting equipment. All of the practices the
coalition agreed needlessly undermined voter confidence and the
integrity of the United States election system.'' I thank you.
The Chairman. Let me just close by thanking my colleagues.
This is something that should be aired and it is a good thing
that I can do it. We also have a bipartisan group. I am
assuming some of you are Democrats.
You have been a wonderful panel. We surely appreciate your
time. Also on behalf of all the election people that I know on
both sides of the aisle, they do a very, very decent job, and I
think all parties are alike in their performance. Thank you
very much for your testimony.
We are going to take a five-minute recess.
[Whereupon, at 3:38 p.m. the committee recessed to
reconvene at 3:52 p.m.]
STATEMENTS OF KEN BLACKWELL, OHIO SECRETARY OF STATE; DANA
WALCH, DIRECTOR OF LEGISLATIVE AFFAIRS, OFFICE OF THE OHIO
SECRETARY OF STATE; PAT WOLFE, ELECTION ADMINISTRATOR
The Chairman. It is a pleasure to have the Secretary of
State Ken Blackwell here, and also Dana Walch from the
Secretary of State's office. We also have one other person.
Mr. Anthony. Pat Wolfe.
The Chairman. I know who she is. I wanted to read her nice
biography. She is from Shacklyn County.
Mr. Anthony. Absolutely. Here you go, Mr. Chairman.
The Chairman. I just want to take a second. Pat Wolfe has
been in the election profession for 21 years. She served as
both the Director and Deputy Director of Shacklyn County Board
of Elections, one of 16 counties I represent. I specifically
brought her here today.
Ms. Millender-McDonald. It was the Secretary of State who
brought her.
The Chairman. We endorsed it. From 1984 to 1992 she served
as Assistant Elections Administrator and Director of Elections
and she joined the Secretary of State's office in '92. She is a
member of the National Association of Election Directors.
She was only the third State Election Administrator in the
nation to receive the certified Elections Registration
Administrator Certification in August of '98 from Auburn
University. I just wanted to say hello. With that we will begin
with Mr. Walch.
STATEMENT OF DANA WALCH
Mr. Walch. Thank you, Mr. Chairman. Chairman Ney, members
of the Committee on House Administration, thank you for
providing me the opportunity to testify before you today. My
name is Dana Walch and I am the Director of Legislative Affairs
for Secretary of State Ken Blackwell. For background purposes,
I have also served the Secretary of State's office as the
Director of Elections and the Director of Election Reform,
overseeing our implementation of the Help America Vote Act of
2002 (HAVA).
Today I would like to discuss Ohio's progress in
implementing the requirements of HAVA. While we have had bumps
along the way, Ohio is well on its way to meeting all of the
requirements of HAVA. I will discuss not only the progress we
have made with HAVA implementation, but also the difficulties
we have faced.
Ohio has been a leader in HAVA implementation. While many
jurisdictions have complained that there was not enough time to
meet the requirements of HAVA, the State of Ohio has embraced
the change and moved forward from the very beginning. We were
one of the first states in the nation to release a Request for
Proposal (RFP) from voting machine vendors to purchase new
voting equipment to meet the voting system standards in HAVA.
We qualified three vendors providing five voting systems to
offer to our counties. Through our negotiation process, we
secured the best pricing, warranty, and maintenance package in
the country. Once we completed our process of selecting
vendors, we posted our Vendor Proposal Evaluation Findings
Report on our website so that other jurisdictions could use it
as a guide if they chose. In short, we believe we had the most
comprehensive, transparent voting machine procurement process
in the country.
We have also made great strides on the statewide voter
registration database. We have built the statewide database and
put the infrastructure in place to the 88 county boards of
elections. In the 2004 general election, Ohio had 71 of its 88
counties on the statewide system. We currently have 81 of our
88 counties on the system with the remainder to come on board
in the coming months. We feel very confident that our statewide
voter registration database will be completed well in advance
of the January 1, 2006 deadline in HAVA.
We have in place other requirements of HAVA such as the
development of an administrative complaint procedure, the
posting of voter information at polling locations, and the
creation of a toll-free system for voters to verify if their
provisional ballot was counted. We had all of these
requirements in place for our March 2004 primary election.
We also met the provisional ballot requirements of HAVA.
Ohio has had a system of provisional balloting for over 10
years, but some modification was necessary due to HAVA. The
issuance and counting of provisional ballots was an issue that
was litigated right up to election day in Ohio. The major issue
was the definition of the word jurisdiction.
We feel, and the courts agreed, that HAVA was very clear in
stating that the definition of jurisdiction was at the
discretion of the states. In our state, jurisdiction is defined
as the precinct. This court action forced our office to issue a
number of different directives regarding provisional balloting
as we approached election day. Now that this issue has been
litigated and clarified by the courts, our implementation of
HAVA provisional ballots will be much easier in the future.
While we have made great progress in the State of Ohio in
meeting the requirements of HAVA, we still have a long way to
go. Due to a number of factors, we have been unable to begin
purchasing new voting equipment for our counties. The first
obstacle was the security concerns raised in 2003 over Direct
Recording Electronic (DRE) voting systems. As most of our
counties were preparing for a conversion to DRE voting
equipment, we felt it necessary to conduct further security
testing on this equipment to ensure the public that their votes
would be secure.
For that reason, we contracted with the Compuware
Corporation and InfoSentry Services to conduct the most
thorough security evaluation of voting equipment done to date.
These security reviews did uncover some items that the vendors
could do to improve the security of the equipment and Secretary
of State Blackwell mandated that the vendors make these
necessary modifications before we would purchase the equipment.
In keeping with our philosophy of public disclosure, we
publicly released the findings of the security reviews.
Then in the spring of 2004, our state legislature began
discussion on the need for all DRE voting machines to be
equipped with a voter verified paper audit trail (VVPAT). In
May of 2004, the Ohio General Assembly passed Amended
Substitute H.B. 262 that did mandate that all DRE voting
machines be equipped with a VVPAT by the first federal election
after January 1, 2006. Due to our approved vendors not having
voting devices with a VVPAT, this legislation brought our plans
to implement new voting machines for the 2004 general election
to a halt.
The other item that has caused a slowing of our process was
the Ohio General Assembly requiring the Secretary of State to
develop standards for the operation of a VVPAT. As I am sure
you are aware, there are currently no national standards for
the operation of a VVPAT system.
The State of Ohio has done considerable research on this
subject and our proposed rule on these standards will be heard
this week before the Joint Committee on Agency Rule Review
(JCARR). We have had numerous meetings with each of our vendors
and interested parties to develop these standards. Once these
standards are official, the vendors can modify their equipment
to include this new requirement.
Because of the cost associated with the addition of a
VVPAT, and that no voting system with a VVPAT has been
certified for sale in the State of Ohio, we have made the
decision to implement Precinct Count Optical Scan systems to
meet the voting system requirements of HAVA. As you are aware,
Ohio experienced a 12 percent increase in voter registration in
2004.
There is simply not enough money available to purchase DRE
voting equipment for our entire state while accounting for the
additional cost of VVPAT, the increase in voter registration,
and to provide enough voting devices with a VVPAT to keep lines
at the polling places to a minimum. We will provide for one DRE
voting device at each polling location to meet the disability
voting requirements of HAVA once systems are certified.
As it relates to HAVA, I would respectfully offer the
following suggestions:
(1) That the United States Congress completes the funding
of HAVA. Congress has done an excellent job of funding HAVA,
but there is still approximately $900 million that was
authorized in HAVA that has yet to be appropriated. While I am
aware that Congress is concerned with appropriating more money
when not all of the states have drawn down their appropriated
funds, states like Ohio that have been moving forward to meet
the requirements could use the remaining funds to complete our
job. We are not asking for additional funds, we are just asking
that you finish funding what was authorized in HAVA.
(2) That Congress asks the National Institute of Standards
and Technology (NIST) to develop and for the Election
Assistance Commission to implement standards for DREs with a
VVPAT. These standards should be developed quickly so they are
available to states that may implement VVPAT as a requirement.
This would keep states from having to go through what Ohio has
had to do in developing VVPAT standards on their own.
(3) That Congress let states implement necessary changes to
meet the requirements of HAVA before passing additional
legislation. Many states are having difficulty meeting the time
lines in HAVA, and additional changes now could put states even
further behind in their implementation efforts.
In conclusion, I would like to make a couple of comments
relating to the 2004 presidential election. In 2004, election
officials in Ohio and throughout the country were put under
tremendous pressure and our election system faced its highest
level of public scrutiny ever. We were faced with constant
litigation over a variety of issues, an unprecedented increase
in voter registration, and the largest voter turnout in our
state's history.
The communication between the Ohio Secretary of State's
office and the 88 county boards of elections was the best it
has ever been. We instituted a daily conference call with the
88 county boards of elections to communicate up-to-the-minute
information. While our election in Ohio was not perfect, as no
election ever will be, I am proud of the work that our office
and the bipartisan boards of elections did to ensure that every
voter had the ability to cast a ballot and have that ballot
counted accurately.
I am greatly disturbed that some have decided to rely upon
the misinformation spread by internet bloggers and those with
partisan agendas instead of relying on the word and experience
of the honest, hard working men and women charged with
administering our elections. While there has been much written
by the many conspiracy theorists about the election in Ohio, I
would like to note for the committee that we only had one
individual file a complaint through our HAVA mandated
administrative complaint procedure. The over 50,000 Ohio
election officials and poll workers who worked in the 2004
election should be commended for a job well done.
Chairman Ney, thank you again for providing me the
opportunity to testify before you today and I would welcome any
questions the Committee may have.
The Chairman. Thank you very much.
Secretary of State.
[The statement of Mr. Walch follows:]
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STATEMENT OF SECRETARY KENNETH BLACKWELL
Secretary Blackwell. Thank you, Chairman Ney and members of
the Committee, for the opportunity to testify today. As Ohio's
chief elections officer, I am keenly interested in the Help
America Vote Act and proposed changes to the federal law, and,
more than that, I am interested in fair, clean, and transparent
elections in my state and other jurisdictions.
The state of Ohio received more than its fair share of
attention during the long campaign of 2004. With the prospect
of a close contest for the state's 20 Electoral College votes,
Ohioans experienced an unprecedented media blitz and energetic
drives to register voters, which produced nearly 1 million new
voters. As Election Day approached, attorneys for both sides,
and I underscore from both sides, were in position, combing
Ohio's election rules for provisions that would help their
candidate or their particular campaign.
In addition, they scrutinized the process for errors that
might invalidate the election if that would help their
respective candidate. There have been plenty of materials and
evidence for the public record to that effect and to that end.
Let me quote one succinct statement about the outcome:
``Overall, Ohio has a good system. Like any system, if you
scrutinize it enough, you are going to find weaknesses.''
This quote is from Don McTigue, a Democratic election
lawyer who worked in the secretary of state's office in a
previous administration, and who was deeply involved in the
election and its aftermath.
I happen to agree with Mr. McTigue. Overall, Ohio has a
good system, and it performed well under extraordinary stress.
And yes, it has some imperfections, areas where we must work to
make our system even better. But I also must speak to, and I do
in my full statement that I have submitted for the record,
fabrications and exaggerations that some who dislike the fact
that their presidential candidate lost Ohio keep repeating.
Unlike Mr. McTigue, they dismiss evidence and simple
explanations and the word of fellow Democrats when the
intimation of some vast conspiracy to steal the election is so
easy to grasp and to promote that some of them found that this
was more exhilarating for them.
Sadly, these fabrications come not only from disappointed
partisans talking to each other on internet boards, but also
from people in responsible positions and people with enough
experience in electoral politics to know better.
We had a tremendously complex election day. As has been
described to you on many occasions, but most recently during
the last panel, we have 50,000 poll workers and election
officials. Ohio is made up of 45,000 square miles of geography.
We have 88 counties with their own Boards of Elections. We have
176 appointed Democrat members of those boards and 176
appointed Republicans. Our system and its strength is a
bipartisan transparent system. Every step of the way,
everything is scrutinized by Democrats and Republicans alike.
Let me say that I had the occasion to peruse the media
accounts of other meetings where questions were asked about
some issues that I think are very, very important. The biggest
issue, which was raised in the question and answer session with
the last panel, was around provisional ballots and directives.
We will in our question-and-answer period give you a keen sense
of the history of those provisional ballots.
I will give you a directive on provisional ballots that was
issued in compliance with Ohio's law in 1994 by my most
immediate predecessor, the now Governor Bob Taft. I will show
that it was in the month of August that we got a rash of
inquiries as to whether or not we were going to liberalize the
provisional ballot law.
Most people who inquired understood that to change the law
would take an action or a decision by the legislature. But they
were asking me, as did the Franklin County Board of Elections,
for my interpretation. Listening to a host of lawyers who had
different legal perspectives we, in fact, in mid-September
advanced a directive that had a slight change in it. It
actually liberalized our provisional ballot law.
It immediately was pounced on as not being liberal enough
or having changed substantially the provisional ballot law in
the state of Ohio and gave rise to a series of legal challenges
where we had courts directing me to change my directive every
other week.
If you really want to understand why there were late
directives, there were late directives because, one, there were
serious questions that started in August about our
interpretation of the Help America Vote Act. In mid-September
we provided a directive that would have allowed ballots in
split precincts that had been erroneous given to a voter by a
poll worker to be counted in this case. That was a change.
Now let me tell you, federal courts threw out that change
and basically said I had overstepped my bounds in terms of
liberally interpreting that law. They, in fact, directed me to
go back to the original interpretation, which was a much more
conservative interpretation.
If you really want to know why there were exchanges back in
October, it was because the courts kept changing their minds. I
think most folks sitting on this panel understand that. I think
most folks in Congress understand that. I can tell you that
most folks who read the newspapers in Ohio understood and
understand that.
The other question is around poll worker training. I just
want to get to it right at the top. Poll worker training. What
you heard from those individuals was that poll worker training
followed the normal course of events this time around. What you
didn't hear from that panel was that we had two statewide
meetings, plus a primary election in 2004. We had a meeting of
all the election officials in January of 2004. We then had a
primary and we had a summer meeting of all the election
officials.
Those are sessions where clarifications are made, where, in
fact, we talk about techniques that are working, and we
exchange best practices. Not only did the EAC and the NASS, the
National Association of the Secretaries of State, distribute
best practices, we, in fact, used those best practices.
Because, you know what? Ohio was referenced in those best
practices as much, or if not more, than any other state. We
actually do know how to handle provisional ballots in this
state.
What I have suggested to you is that the courts, the
legislature, and I as the Chief Election Officer of this state,
what we did was we went with Ohio law and we did it within the
context of HAVA. We happen to be privileged to have the Moritz
College of Law here in Columbus who did an extensive
legislative history on the evolution of HAVA and it was brought
to our attention in that legislative history that there was a
profound debate within the Congress where in the House there
was a belief that jurisdiction would mean any place in the
county so it was a broader definition.
Senator Bond, who led the effort in the Senate, wanted the
more conservative definition of jurisdiction. In conference
committee the Senate won and so HAVA basically says that it is
up to the state to determine jurisdiction. The narrow
definition did not get approved, nor did the broader
definition.
HAVA left that up to the state. I submit to you from the
record that legislative history. I would suggest to you that
everyone sitting up there understood that legislative history
and everyone in Congress who was following the process
understood that legislative history and the courts and the
Secretary of State's office understood that history.
We had a good election in the state of Ohio. Not a perfect
election. Elections are, in fact, human endeavors and as a
consequence they are never perfect. But just as Lincoln said
about our union, ``Elections are perfectible. We can make them
better.''
I was struck by the fact that there is common ground
between myself and members of this Committee. I have advocated
since the inception, my first day on the job, my first week on
the job. My first legislative idea was to go with no-fault
absentee ballots for broader use of absentee ballots, moving
away from the 11 or so excuses that are there now that you have
to meet in order to get an absentee ballot.
I am a very strong advocate of early voting and have been.
I also am respectful of the legislative process and understand
that this is a matter where the balance of power works and the
legislature has said that we will not have at this point a
broader use of absentee ballots, nor will there be early
voting.
I can tell you if you want to come and help me campaign
with the legislature for their broader definition, you are more
than welcomed, but I would suggest to you that just as you like
to have your integrity respected, so does the Ohio legislature.
They are the elected representatives of the people of Ohio in
this legislative process.
I hope that we can find common ground. I can tell you right
now I was among the first to challenge the continued use of
punch-card ballots. That is why I got this letter. Not just a
form letter, but a handwritten note from Congressman Steny
Hoyer and the Chairman basically saying that I was in the
forefront of moving forward the passage of HAVA and the
elimination of punch-card ballots. We, in fact, in the 11th
hour, got House Bill 262, which basically changed the rules of
the game and said that we needed a voter-verified, paper audit
trail.
I don't know where you all net out on that, but I am here
to tell you it has been a center piece of the national debate,
a center piece. But the EAC has yet to establish standards and
the independent testing authorities have yet to establish
standards. So as a consequence, we are in a situation where
Ohio law prevails and I have my marching orders from the
legislature and I am going to play out the hand that was dealt
me.
You all haven't changed the implementation schedule. They
haven't changed the VVPAT requirement. And we haven't gotten
any more money. We have $105 million for machines and the only
way that we can be in compliance and meet your schedule and
deal with the money that has been provided is by going to the
precinct-count optical scan, which those machines are HAVA
compliant, they are within our budget of the money allotted,
and we can, in fact, meet our deadline.
In closing, let me say, because this seems to be another
issue of question, the legislature in House Bill 62 allocated
the dollars for voter education and they had two strategic
objectives. The counties were to receive voter education money
at the point that they implemented and deployed new machines.
Because the voters would be using new machines, House Bill 262
said that at that point they would get $2.5 million to be
allocated on formula. We had OEAO agreement, the Ohio
Association of Election Officials. Nobody spoke to the
conference committee to the contrary.
Secondly, let me tell you why we spent $2.5 million on a
voter education program that is considered to be the template
of best practices, because 70 percent of our voters use the
punch-card system, a punch-card system that many on the panel
found to be discriminatory against low income and minority
voters in urban areas.
I was in the forefront of saying that we needed to get rid
of that system and I am still in the forefront of saying that
we are going to meet your time lines to get rid of that system.
I would just suggest to you that we will, in fact, spend the
money on the new system on voter education, but we must measure
the effectiveness of our education program.
I know the Chairman has had a question. He has had a
question about whether or not we have had impact on over or
under ballots where, in fact, you can measure folks who over-
vote. You can't determine whether folks who under-voted did so
initially or if there was some machine malfunction.
As compared to 2000, we had fewer over/under votes
percentage wise because we had over a million more voters than
we did in 2000. The education program worked. It was cost
effective, because we made commercials that could be used
across the state because the dominant system in our state was
the punch card.
We, in fact, ran an aggressive voter education campaign. By
anybody's measure, it worked. If we want to get more money out
to counties, then we start with the legislature and we say let
us get them more money. But the fact is that we are not to
denigrate a statewide system that worked against a statewide
problem. Thank you.
The Chairman. Thank you very much for your testimony.
[The statement of Secretary Blackwell follows:]
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The Chairman. I will start by asking a question. Secretary
of State, I recall that you were the first person involved from
the forefront. You were the first person called when this
started, as well as your colleague, Democrat Secretary of State
Priest from Arkansas. We received unanimous support of NAS. I
have said that, and appreciate you doing that, and appreciate
the phone call that first day to help us along in this process.
Mr. Walch, you referred in your testimony, and, it was
raised about Knox County, to the voter's fair and other issues
that have been raised about disenfranchisement and other
issues. You mentioned there is only one person that filed an
administrative complaint. Do you want to expound on that? That
individual is from which county?
Mr. Walch. Mr. Chairman, that individual is from Allen
County, Ohio.
The Chairman. Why do you think only one person filed a
complaint?
Mr. Walch. Mr. Chairman, I think the overall reason as to
why there were so few filed is because, as the Secretary said,
and I think I said in my testimony also, I think we had a very
good election here in the state of Ohio. Overall things went
very smoothly. As I think we have all testified to and said in
public statements, it by no means was a perfect election.
There are always improvements that we can do and we have
gone through an analysis of the selection and have been working
on that. You heard Representative DeWine talk earlier about
House Bill 3 and Senate Bill 3, a companion piece of
legislation that our office is working very closely with the
legislature on to improve an already very good system. My
answer to that is the reason I think not more people filed was
because we had a good election year in the state of Ohio.
The Chairman. I have another question for either the
Secretary of State or Mr. Walch. A key component of HAVA is the
requirement that each state establish a statewide voter
registration database. Once this requirement is met here in
Ohio, what impact do you think it will have on the registration
process and the demand for provisionals? Do you have any
reflection on what is coming down the road?
Secretary Blackwell. Again Ohio is in the forefront. Most
states are having a very difficult time. We now have all 88
counties in place and it will have a tremendous impact. It
will, in fact, deal with the time lag that the gentlewoman from
California raised with the last panel as to why we trail the
counties.
Well, we don't have a centralized system so we are
dependent upon information coming in from all 88 counties and
then we put the information back out to them. With a very
shoebox system, a very paper oriented system, that takes a
whole lot of time when you are talking about now, you know, 7.3
million voters. That is an issue. This issue is one of the
great accomplishments of HAVA. That issue goes away.
Now, I do want to say that there was some question about
HAVA and the statewide plan. We had a statewide plan and I got
here just in time to hear each member of the last panel ask if
they were on the statewide plan. A more pointed question would
have been were election officials represented on the statewide
plan committee which the state plan is now part of the national
registry.
It got approved by the Federal Government. It went through
the express process of inviting anybody who wanted to testify
at at least three public hearings to come in and testify. It
was, in fact, a plan that was signed off on by election
officials, as well as community-based voter groups. The plan is
a statewide plan that had diverse input from across the state.
Let me just say for the gentlewoman from Cleveland that the
chairman, Mr. Thomas Coyne. I think he is a Democrat, was a
member--he was the Chairman of the Board of Elections, was a
member of the statewide plan committee. So our largest county
was represented on the statewide planning committee.
It was a committee that had its final product, the
statewide plan, vetted nationally because it had to fit on our
website and we had to deal with questions and answers from not
only from Ohio, but from across the country. It was a well-
vetted state plan. It was also a state plan that the National
Association of Secretaries of State used as a model.
The Chairman. I have a question on voter ID. How did that
go? Do you have any opinions on voter ID?
Mr. Walch. Mr. Chairman, we received very few calls about
any problems with that on election day. I think in the state of
Ohio it went very smoothly. We had implemented that in the
primary election we had in March of 2004. The feedback we
received from election officials throughout the state was that
most people are actually surprised when they have gone to vote
and didn't have to show some form of ID. Those that were
required to show some form of ID, which were not many in the
state of Ohio, those folks didn't have any problem.
The Chairman. I haven't heard much nationally. We did hear
some issues out west, but one of the most common complaints
arising from the 2004 election was that the lines were too long
at some polling places. I asked the question today. Mr.
Secretary, I don't know if you were here at the time, but I
asked all four of the last panelists: Do you want the Federal
Government to solve that or the local bodies? Nobody wanted the
Federal Government. I thought I would mention that, but it is
difficult to solve long lines because of an insufficient number
of machines.
Again, the two complaints you hear the most are that the
lines are too long at some polling places, and that the voters
could not cast a provisional ballot anywhere within the county
in which they live, but rather had to cast at their assigned
polling places in order for it to be counted. Any comment on
those two?
Secretary Blackwell. You can disagree with Ohio law.
California has a different law than the state of Ohio, but the
fact is that Ohio law says that the jurisdiction is the
precinct in which a voter resides. Now, Ohio law has also
allowed for a couple things for a decade. First, anybody who is
in question can register and cast a ballot at the Board of
Elections. Anybody who wants a provisional ballot can go to the
Board of Elections and get it done. They can do that.
Secondly, we allow for the creation of provisional voting
centers throughout a county, one as large as Cuyahoga. That has
been part of the law for 10 years. We can't mandate it from the
central government of Columbus, but it, in fact, is a provision
of the law which allows for the creation of those provisional
voting centers. Anybody who has been around for two years, four
years, six years, eight years, seven years, as I heard one
gentleman say, should know that. That is a fact.
And, you know, as it relates to long lines, I agree with
you. No one should have to wait until the wee hours of the
morning. No one should have to wait for two and a half hours.
But you all have to understand that voting machine deployment
has an intersection with a whole host of issues.
First, it is voting pattern history, available dollars,
production timing. These machines are not just sitting on a
shelf. We in Ohio have allowed for the use of different systems
that meet specific standards. I understand that you had a
question asked of the gentleman from Franklin County where they
had too few machines and the gentleman from Cuyahoga County
where they had 1,000 excess machines, but they used two
different systems.
The fact is that we have some very real issues that we have
to wrestle with, and that is, do we move to a one-system
concept. We got to that through the back door. One system in
the general sense of a precinct count optical scan even though
we are dealing with two different manufacturers. That is
optimally what we would like to do but we don't have enough
machines at a reasonable cost that meet all of the
certification guidelines and so that is a problem.
I was the first to say that we couldn't control the rain.
We couldn't control county budgets and state budgets. The fact
of the matter is that we can now take steps to make sure that
those problems are alleviated in the future with a broader use
of absentee ballots and early voting. I said that right out of
the chute.
Now, the reality in this county--let us go to Knox County.
We got a lot of publicity, and rightfully so, but anybody who
has been around election administration for two hours could
understand this. The gentlewoman from California, let me just
say I agree wholeheartedly with something that you said.
Political veterans understood that there hasn't been a
Republican win or retain the White House without carrying Ohio.
That was a fact that didn't go to sleep. The Kerry campaign
didn't sleep, nor the Bush campaign. The other issue is that if
you go back to 2000, you take Ralph Nader off the ballot, you
are probably talking about a 1 percentage point difference
between then Governor Bush and Vice President Gore.
Anybody who had a historical point of view would know that
we are going to have a major, major influx because we had
Americans acting together. We had a very hot issue around the
definition of marriage and a constitutional amendment that had
gotten a lot of folks revved up. Even knowing that, we didn't
have enough money to employ additional machines.
Even anticipating that, it wasn't there. Now, at one point
I thought it might be there to get half of the counties moved
into the new DRE system and, lo and behold, we got the last
minute requirement of a VVPAT. I will say, in all fairness, a
lot of it was coming from Democratic camps, the demand for the
VVPAT.
Here in the state of Ohio, Senator Fedor from the western
side of the state was the primary leading Democrat. The fact of
the matter is that this is not something that Republicans
conspired. It was bipartisan. Senator Jacobson, who I
understand had a nice exchange with you today to say it mildly,
was right there demanding for VVPAT. It was a bipartisan, last-
minute decision. But it was a last-minute decision and it drove
up the cost of the machines, so there was no way that you were
going to have enough machines.
Let me tell you what happened. In Knox County, where Keynon
College is located, traditionally those students vote absentee
ballots in their respective home states. Because folks
understood Ohio, was going to be the battle ground state, the
campaigns both adopted a strategy of getting them to vote in
the state of Ohio which was an option open to them. The fact of
the matter is they filed their Ohio voter registrations late.
Not past the deadline, but late into the system so there
was no way that those folks could have anticipated that there
was going to be that change in voter behavior. What they did
was the best they could do with too many voters for too few
machines. They did the best that they could do. Shame on us if
that happens again, because we now have that historical
experience.
So, yeah, were there long lines? They were across the
board. Were there long lines in Franklin County? Yeah, you
heard. But, look, our system is a bipartisan system. It would
have taken the collusion of 176 Democrats. Not just any
Democrat. Most of them are Democratic leaders. Tim Burke in
Hamilton County, Chairman of the Hamilton County Democratic
Party, very active in the Kerry campaign.
Bill Anthony, labor leader, Chairman of the Franklin County
Party, as well as the Chairman of the Board of Elections. The
two people responsible in Franklin County for the distribution
of voting machines are two Democrats so it is silly on its face
to think that there was some kind of bipartisan conspiracy to
disenfranchise black and inner-city voters in Franklin County
when you had Democrats and blacks in charge of that system.
The Chairman. We want to move on to our Ranking Member and
member from Cuyahoga County, but I have just one correlation in
my mind. If you allow people to cast ballots anywhere in the
county or state, you are going to have extremely long lines. I
don't know how we could have anticipated where on earth anybody
would vote. If you do statewide voting, everybody driving from
counties going across Ohio could vote wherever they please. I
don't know how we would have known where anybody would vote.
Secretary Blackwell. Mr. Chairman, let me just say, the
expectation in a fledgling democracy like Afghanistan was that
voters would vote in their assigned voting area or
jurisdiction. We are veterans of the democratic process. For
228 years, there have been two hallmarks of American elections
that are truly free and fair. The first is the protection of
the sovereignty, the sanctity of the voting station so that the
secrecy of the ballot is protected.
Secondly, it is an honest count. In Ohio, you got an honest
count three times--three times. In Ohio you, in fact, had
election officials that fought to make sure that we balanced
two strategic objectives to meet the first overriding concern
and that is the protection of the voting station and the
secrecy of the ballot. That was that we have to balance two
strategic objectives. The first is we have to make voting as
easy as possible. Make the ballot as accessible as possible.
Secondly, we have to understand that a fraudulent vote
discounts legitimate votes, so we have to work very hard to
make sure that our system is fraud-free and that we were able
to do. That is one reason why we have had a record turnout and
the system, no matter how taxed it was, showed stability and
professionalism and patience and got the job done. That is what
I found so offensive about the charges that were made against
the system by folks who didn't have the decency to check the
facts. Let me just answer that question and let me just make
this statement.
Early on, there was a lot of concern about how we were
dealing with provisional ballots and it was positioned as if
Ohio was doing something dramatically different and out of the
mainstream. Let me underscore, for the record, that 27 other
states, plus the District of Columbia, require votes to be cast
in the correct precinct to be counted.
There was the amazement on my part is that I didn't see
press conferences and pickets going to Boston, Massachusetts,
where they have the same laws we have in the state of Ohio. I
didn't see press conferences held in the District of Columbia,
where they have the same provisional law as we have in Ohio.
So if the controlling principle was the concern about the
disenfranchisement of African-Americans, there are more
African-Americans per square mile in the District of Columbia
than in the state of Ohio. Why weren't there protests there?
This positioning of Ohio as doing something that was radically
different. It was a false position. We were in the mainstream
of states. Twenty-eight states, plus the District of Columbia.
None of them changed.
All of them, in fact, found reasonableness in that
requirement and they maintained it. I would suggest that there
were issues to deliberately cause confusion in the state of
Ohio. We were targeted for such chaos and confusion and it is a
testament to the professionalism of 50,000 poll workers and
election officials that got it right in the face of this.
Mr. Walch. I am sorry, Mr. Chairman. Can I make an
additional comment to the Secretary, please?
The Chairman. Yes.
Mr. Walch. To your point of voters not being able to cast a
ballot anywhere in the county, I listened to our colleagues on
the previous panel talk about that and some previous ways of
doing in some counties. I heard Mr. Cunningham talk about from
Allen County that he in this election did not do one thing
different than he has done in past elections as it related to
the issue of counting provisional ballots.
That is because Mr. Cunningham has been doing it by the
same directive that has been out there, as Secretary Blackwell
talked about earlier, since 1994. If there are counties out
there that felt that there was some sort of change to past
practice on this, that was due to them not doing it properly in
past elections.
But our job at the Secretary of State's office was to
ensure that they were doing it by law and that is why we
reminded them of current Ohio practice on issuance and counting
of provisional ballots. I would also to your point of
provisional ballots, I would also for the Committee's
consideration remind everyone that Ohio had the fourth highest
acceptance rate of provisional ballots cast in the country
according to Electionline.org.
I would say I am very proud of the work that we in the
bipartisan Boards of Elections did in ensuring that everybody
got a provisional ballot who wanted one and that those
provisional ballots were counted if that voter was eligible to
vote.
Ms. Millender-McDonald. Mr. Chairman, can we get a yield
for a moment from Mr. Walch?
The Chairman. Just on this point, Ranking Member, my
intention of HAVA is very clear. You have to have the
provisional ballots, but never had the word ballot been written
into the law. The idea was, especially for states that didn't
have it, to stop disenfranchisement. You have to give people
the ballot.
We never, rightfully so, dictated how you count it. You
have standards in Ohio and set procedures. If people don't like
that then they go to their state legislators and you change it.
Now, I mentioned the county thing because I can't imagine--you
want to talk lines or chaos, I can't imagine how you could have
counting in the county. It would be chaos. Now, in perfect day
when we are no longer here on this planet and electronics work,
you pull up a little screen and you put your finger on it or
your iris, you could be in California and vote in Belmont
County, for example. That hopefully will come some day, but we
don't have that currently.
I have always asked this question. How on earth would a
person in a county vote in St. Clairesville if he is from
Bellaire, my original hometown. If you are from Bellaire but
you go and vote in St. Clairesville and say, ``Well, by the
way, I am voting on the St. Clairesville school levy, but I am
from Bellaire, Ohio, where I pay my taxes.'' How do you sort
that out? These are things that I find impossible to sort out.
I think we would have complete imploding of the election under
the current technology.
Secretary Blackwell. Mr. Chairman, I think you have to
start by the fact that you are never going to have the perfect
system. There is always a way to make it better so you are
never going to be able to totally eliminate the possibility of
long lines.
Let me tell you what my experience has been as I have
criss-crossed the country over the six or seven years that I
have been in this office. Something that has not been talked
about today is that the complexity of the ballot is a big
issue. Let me just tell you something, if you want to go back
and understand.
If, in fact, you have, like in California, 17 different
statewide issues and a whole host of judges that you have to go
in and look through, most voter behavior is that they wait
until the last couple of hours and many of them go into the
voting booth with the League of Women Voters Voter Guide and
say, ``Let me see where this guy graduated from.''
The issue becomes one of voter complexity. In the state of
Ohio, thank God, this time around, because we educated against
it, but it is still on the books you only have five minutes to
vote. Yeah. Now, I tried to get that eliminated, but it didn't
get eliminated. You only have five minutes to vote.
The Chairman. Mr. Secretary, would you like to clarify
that?
Secretary Blackwell. No, I don't want to clarify it. It is
right.
The Chairman. Mr. Secretary, this is not an adverse
situation. It is for the gentlelady's information.
Secretary Blackwell. If, in fact, you went into a voting
booth and you hadn't done your homework and you decided to read
the information while you were in the voting booth, you
inconvenience ``those who are in line.'' We are talking about
lines now. We are talking about lines.
Ms. Millender-McDonald. Irrespective.
Secretary Blackwell. Let me tell you. We are talking about
lines. What I just told you is that we didn't get that
exercised out, but we didn't have that problem this time. By
not enforcing the five-minute rule, we added to the wait. You
can't tell me--you said they enforced.
Ms. Millender-McDonald. No, I am not saying that.
Secretary Blackwell. I know you are not. So you said you
shouldn't enforce it.
Ms. Millender-McDonald. That is right.
Secretary Blackwell. So that means that----
Ms. Millender-McDonald. And you said you did not enforce
it.
Secretary Blackwell. We didn't enforce it and that meant
that we had longer waits because of people's voter behavior. If
you want to talk about this in an academic sense, that has been
studied. People take longer sometimes than five minutes if they
are not familiar with the ballot or if the ballot is very
complicated and has a lot of issues on it.
Ms. Millender-McDonald. Of course.
Secretary Blackwell. That is all I am saying. So there are
a whole host of issues that impact wait and the length of the
line.
Ms. Millender-McDonald. That is one of those.
Secretary Blackwell. That is one of those. Absolutely. If
you want to begin to attack ways to eliminate lines, some could
argue that you, in fact, enforce the five-minute rule and the
voter responsibility is to be educated before he or she walks
into the station to execute the ballot. Others will say, ``take
as long as you want. If somebody else has to wait, so be it.''
The Chairman. We will move on. I was defending you.
Secretary Blackwell. I know you were.
The Chairman. She is from California. I just wanted to
clarify.
Ms. Millender-McDonald. You put California out there five
different times. My goodness. You said California once before
and he said California three times.
Secretary Blackwell. I said California three times. I sure
did.
Ms. Millender-McDonald. Just referencing.
Secretary Blackwell. Referencing because I have looked at
problems----
Ms. Millender-McDonald. Problems----
The Chairman. If you will take me back for a second,
Ranking Member, I am clarifying that you are from California
and asking if you are familiar with our five-minute rule.
Ms. Millender-McDonald. That is true.
The Chairman. No offense.
Ms. Millender-McDonald. He was defending you.
The Chairman. With that, I will yield to the Ranking
Member.
Ms. Millender-McDonald. He is a great Chairman.
Secretary Blackwell. Yes, he is.
Ms. Millender-McDonald. You have given us a great Chairman
here from Ohio and we are very pleased with him.
Before I get to the Honorable Secretary of State, I would
like to go back to Mr. Walch. You were saying that Mr.
Cunningham perhaps had abided by this 1994 law. It seems to me
you were implying that the others were not, causing some
confusion. Am I correct in my assessment of that?
Mr. Walch. Mr. Chairman, Congresswoman, yes. That is
correct. If a county felt that there was something different
going on this year than had gone on in the past, the only
explanation for that was they were not doing it correctly in
the past. Ohio law----
Ms. Millender-McDonald. Isn't it your position then to
correct them?
Mr. Walch. That is what we did.
Secretary Blackwell. Let me answer. Let me just say what is
unknown, and I will welcome your advocacy. No, I wouldn't. We
have 12 central office election officials. What my office does,
the majority of my staff does, is on the business services side
of the office. Now, the reality is that in terms of elections
administration, we have 12. We don't have an enforcement
agency. The only thing that we can do through directives is
clarify and give reference points for the 88 county Boards of
Elections. So it might be easy to come in from out of state and
assume I have dozens upon dozens upon dozens of people to cover
45,000 square miles of territory and 88 counties. I don't.
Ms. Millender-McDonald. Just----
Secretary Blackwell. The issue is you asked him don't we
have--this isn't our responsibility. I want to be clear on what
our responsibility is.
Ms. Millender-McDonald. Is it not your responsibility?
Secretary Blackwell. Our responsibility is to state Ohio
law and to give a reference point. The only way that we can
find out is through a complaint system or through their own
admission.
Ms. Millender-McDonald. Which you did not get.
Secretary Blackwell. Which we did not get.
Ms. Millender-McDonald. You did not get that.
Secretary Blackwell. Prior to coming into this, right. That
is how our system works. And the other issue is one of local
enforcement; it is the job of the respective county prosecutor.
Ms. Millender-McDonald. Well, you know, Mr. Secretary of
State, you do have a lot of improvement to do and that is based
on your limitation of personnel or a myriad of other things
that you have outlined.
Secretary Blackwell. I just----
Ms. Millender-McDonald. But I am saying----
Secretary Blackwell. The whole state does. I mean, the
whole country does.
Ms. Millender-McDonald. I am going to say that in
Wisconsin. I am going to say it in Pennsylvania. I am going to
say it in Florida. I am going to say it wherever I go because
there are problems that are systemic around the country. Now,
Mr. Secretary of State, you were well aware that Ohio was a
swing state.
Secretary Blackwell. Right.
Ms. Millender-McDonald. You are well aware that when the
swing states come into focus leading up to a presidential
election--I was going to ask how long have you been here. You
have been the Secretary of State for six or seven years?
Secretary Blackwell. Six years.
Ms. Millender-McDonald. So it is obvious that you knew that
folks would be coming in from all walks of life. You would have
a barrage of folks coming in. You knew that and, yet, with all
of this, you are saying that you don't know why the media
blitz, you don't know why all of these folks are coming in with
these different groups.
Secretary Blackwell. No, I didn't say that. You go back and
check the record. I didn't say that. Somebody might have said
it, but I did not say that. I anticipated. I anticipated. Let
me tell you when I anticipated it most is when we took Ralph
Nader off the ballot and I was very much aware of what I told
you beforehand. I knew that Ohio was going to be the premiere
battleground state. I knew it.
Ms. Millender-McDonald. Then did you know that then you
should have known that you were going to have over a 100,000
new registrants perhaps.
Secretary Blackwell. Right.
Ms. Millender-McDonald. And that you should have put into
place some type of mechanism to deal with this onslaught of all
these registrations.
Secretary Blackwell. Madam, in your brilliance, would you
tell me who would have paid for it?
Ms. Millender-McDonald. I am sorry?
Secretary Blackwell. In your brilliance would you tell me
who would have paid for it?
Ms. Millender-McDonald. It is a possibility you would not
have had that, even though you got the third highest amount of
money from HAVA.
Secretary Blackwell. Can you tell me who would have paid
for it?
Ms. Millender-McDonald. But, you know what, Mr. Secretary
of State? You are the Chief Election Officer.
Secretary Blackwell. You dagone straight I am. Let me tell
you something.
Ms. Millender-McDonald. You should have had----
Secretary Blackwell. I am not the legislature. I am the
Secretary of State and I do not allocate money.
Ms. Millender-McDonald. I understand the provisions of
that.
Secretary Blackwell. The legislature does.
Ms. Millender-McDonald. Okay. Fine. But it is incumbent
upon you to have found some way by which those extra
registration forms could have been dealt with differently than
what they were irrespective, Mr. Secretary of State, and you
had ample time to do that it seems.
Secretary Blackwell. Expand on that. I am fascinated how
you can fly in here to Ohio, that you would fly in here and you
would make an assertion that----
Ms. Millender-McDonald. It seems to me----
Secretary Blackwell. You are going----
Ms. Millender-McDonald. I am not saying you should have.
Secretary Blackwell. Okay, it seems to you. I will start
wordsmithing with you.
Ms. Millender-McDonald. Okay.
Secretary Blackwell. The fact is that you have left an
impression that, contrary to what all the election
professionals have told you, and we will give you full
comprehensive answers to your questions. Pat Wolfe is the
Election Administrator. She has been introduced to you.
The reality is that we started in January of 2004 at the
statewide meeting of the Ohio Association of Election Officials
starting to talk about the challenge of this election and what
it was going to mean. I can tell you right now that if we
hadn't had the preparation that we did have, it would have been
a catastrophe. The fact of the matter is that what you don't
want to hear is that Ohio----
Ms. Millender-McDonald. Do not say what I don't want to
hear.
Secretary Blackwell. Well, then what you are not hearing.
Ms. Millender-McDonald. You don't want me to put words in
your mouth.
Secretary Blackwell. What you are not hearing is that Ohio,
whether you are talking about the National Associations of
Secretaries of State or by any other objective measure, has one
of the best election administration performances in the
country.
Ms. Millender-McDonald. Mr. Blackwell, irrespective of
that, there have been many allegations put out there. Now,
again, you don't want to hear they are out there.
Secretary Blackwell. Most of them have been--let me just
show you something, madam, because I don't want to waste your
time coming into Ohio. Most of the challenges to our state were
handled by the media in our state.
Ms. Millender-McDonald. I am sorry, who?
Secretary Blackwell. The analysis was done by the media of
our state, as well as other third party personnel and
organizations.
Ms. Millender-McDonald. May I just say this, sir?
Secretary Blackwell. Yes, ma'am.
Ms. Millender-McDonald. One of the things that was raised
is that you did have long lines.
Secretary Blackwell. Right.
Ms. Millender-McDonald. And, therefore, there was a certain
amount of disenfranchisement because people just couldn't wait
in those long lines. Now, you have said you did have long lines
but you have explained why some of the reasons for the long
lines.
Secretary Blackwell. Right.
Ms. Millender-McDonald. Nevertheless, that is out there.
Secretary Blackwell. Everybody had long lines in the
country. Nobody had the anomaly of Knox County that I know of.
Everybody in general had long lines and longer waits. We had a
record turnout. We had a million more voters this time around.
Ms. Millender-McDonald. Because you are a swing state.
Secretary Blackwell. Not only because we are a swing state.
Because we, in fact, had encouraged voter education and
registration and we got it on both sides of the aisle.
Ms. Millender-McDonald. Well, we did not have 10-hour
waits, but I am not sure that is an accurate account of the
number of hours that folks waited here in Ohio either. Let me
ask you about the forms, 800 pound paper stock that was
suggested. Are those allegations or is this true that you out
of the--as the results of public outcry you have changed that?
Secretary Blackwell. No.
Ms. Millender-McDonald. Can you explain that to me?
Secretary Blackwell. Yes, I can. As a part of reasonable
feedback from election officials, we relaxed the standard.
Prior to this election, most of our voter registration came to
us from the voters themselves and came to us through the mail.
This election, we, in fact, had a record number of third-
party registrations. When they were coming to us through the
mail, we, in fact, had a paper weight standard because what we
didn't want to do is disenfranchise voters by post office
machines damaging their registrations. Now, the reality is that
this predated me. Now, Pat Wolfe----
Ms. Millender-McDonald. What predates you?
Secretary Blackwell. The paper weight requirement. Pat is
here. She will explain to you the process, why we have it, and
how we approached it this time around. As soon as folks told us
that they, in fact, were getting more over-the-counter
registrations than they were getting through the mail, and that
the standard was a problem as opposed to an asset, we, in fact,
relieved and relaxed that standard pure and simple.
It is something that had been in our director's guide. We
had, in fact, had it for a number of years. I'll let Pat
explain to you because I own that. I own two things. I own the
directive and I own the relaxation of that directive. But I, in
fact, worked on the advice of election professionals and Pat is
that election professional and one of the few in the country
that is certified. She is certified, and she recommended to me.
I will let her explain it to you, but I own it.
Ms. Millender-McDonald. I just want to continue to talk
with you, sir.
Secretary Blackwell. Okay. Pat, would you answer the
question?
Ms. Millender-McDonald. No, Mr. Secretary of State. Let us
finish.
Secretary Blackwell. Do you accept that answer or not?
The Chairman. Let me just stop here for a second. Let us
take a deep breath. First of all, gentlelady, you can proceed
on the question. After that, I would like to hear from Pat
Wolfe. Ranking Member, proceed.
Ms. Millender-McDonald. Thank you, Mr. Chairman. Mr.
Secretary of State, we will get to the lady. We are just trying
to clear up some either allegations or misinterpretations of
what happened. This is your opportunity to do that so that is
why I was----
Secretary Blackwell. That is why I am going to give you the
whole process.
Ms. Millender-McDonald. I understand----
Secretary Blackwell. If we really want to get to that, I
will give you the whole process. We will put a pin in it, flag
it, that Pat will give you the process from the very beginning
when it started, you know, when that standard was established
and why.
Ms. Millender-McDonald. Okay. Mr. Secretary, there are
allegations that voters were told that they could not fill out
provisional ballots in any other precinct than the one in which
they reside. I think you have made some clearances on that. But
will you reiterate for the record again with me why was that?
Or why are there still allegations out there that you
circumvented provisional ballots from being given to voters who
did not reside in the precinct by which they had come?
Secretary Blackwell. The most simple answer is that I don't
know why people would continue to spread misinformation, except
there was a mid-October, and you probably have seen it, either
officially or politically, a DNC workbook that suggested that
folks come in and look for problems. If there were no problems,
exercise a preemptive strike and create problems where there
were none.
I would suggest that is probably what we are still
experiencing here. I will give you a copy, just in case you
don't have it, so you can reference it. It was very
interesting. It came up in October. I was doing a Fox News
Sunday interview with Chris Wallace on set with a Democrat
lawyer. Very finely distinguished fellow. This was the first
time that I saw that DNC newsletter. The lawyer couldn't
respond to it.
Ms. Millender-McDonald. Are you saying this was conjured up
by----
Secretary Blackwell. I don't know. I am just saying that--
here it is right here.
Ms. Millender-McDonald. Are you suggesting that----
Secretary Blackwell. Kerry/Edwards Colorado Election Day
Manual. ``If no signs of intimidation techniques have emerged
yet, launch a preemptive strike, particularly well suited to
states in which their techniques have been--where these
techniques have been tried before.''
Ms. Millender-McDonald. So it is not related to Ohio. That
is a general statement.
Secretary Blackwell. Well, it is a general statement. But
just as you recognized that Ohio was a swing state and the
premiere battleground state, I am sure they did, too.
Ms. Millender-McDonald. The question is did you circumvent
any provisional--sir, Mr. Secretary of State.
Secretary Blackwell. Go ahead. I am listening.
Ms. Millender-McDonald. Yes, but I don't have your----
Secretary Blackwell. You have my undivided attention.
Ms. Millender-McDonald. No, I don't.
Secretary Blackwell. I can chew bubble gum and listen to
you at the same time.
Ms. Millender-McDonald. Sir, are you saying that there is
not a ruling by you or a directive that says that no one should
have a provisional ballet who did not reside in the precinct by
which they have come to vote?
Secretary Blackwell. There was no directive. There was, in
fact, a letter back to the Cuyahoga County Board of Elections
which basically raised what I would consider to be an ethical
question. One, if, in fact, you know that someone is not in the
correct precinct, to give that person a ballot that you know is
not going to be counted effectively and intentionally,
disenfranchises that person, even though it might make election
administration more convenient.
What I was told, and it was made very clear, that there
were two things we had to separate. One was the provision of
the ballot and the other was the counting. The courts told me
that when they narrowed the definition of where the
jurisdiction was, they upheld Ohio law and Ohio authority, to
require the jurisdiction to be the precinct.
They also made it clear to me and my lawyers that the
ballot in accordance with HAVA had to be given to anybody. Just
for accountability purposes, they were to tell the folks where
they should vote. If they still wanted a ballot, HAVA said give
them the ballot, but make them sign. Allow for them to sign an
affidavit saying that they knew that if this vote was cast in
the wrong precinct, it wouldn't be counted. That was a court
compromise on a fine point, but it, in fact, was just that. I
think, at that point, the court was doing their job.
Ms. Millender-McDonald. But are you saying----
Secretary Blackwell. So the answer to your question is in
Ohio in this election, everybody got a provisional ballot that
demanded one. There was a good-faith effort made to tell them
that it had to be cast in the precinct in which they resided.
Or, as Ohio law says, they could go down and vote at the County
Board of Elections and if you happen to live in the county that
was forward thinking enough and if they had provisional ballot
centers, they could have voted there.
Ms. Millender-McDonald. I was going to ask you that. Why is
it--so, in other words, provisional ballots are one thing but
to count those that were submitted is another thing.
Secretary Blackwell. Right.
Ms. Millender-McDonald. So you still disenfranchise people
for not counting these ballots when, in fact, you should have
dragged them down to this provisional center where I suppose
you have the setup for them to then follow through on whatever
they need to for clearance.
Secretary Blackwell. They can be told that.
Ms. Millender-McDonald. I am sorry?
Secretary Blackwell. I would say in most counties they were
told that. Voters have some responsibility. We don't run a
taxicab service. The fact is that they were told the precinct
in which they could vote and had that vote counted in
accordance with Ohio law, not California law, not Massachusetts
law. Well, in Massachusetts it wouldn't have counted. We, in
fact, told voters that if they still insisted on a ballot, HAVA
said they could get a ballot.
Ms. Millender-McDonald. That is correct.
Secretary Blackwell. And they got a ballot in Ohio. But
Ohio law and the courts that upheld this said, ``We are not
going to, in fact, be responsible for disenfranchising you. We
will tell you where you are supposed to vote and if you don't
want to do it and for whatever reason you want a provisional
ballot----
Ms. Millender-McDonald. But they disenfranchised them
anyway.
Secretary Blackwell. They disenfranchised themselves if
they didn't vote in the right precinct. Look, let me just put
it this way: Given the big states, the most popular states, we,
in fact, had the highest validation rate than any big state in
the country who had a similar law to ours. California in
accordance with their, was one notch under. We had 78 percent
rate and California had 77.
Ms. Millender-McDonald. I understand. That is correct.
Secretary Blackwell. Our neighbors next door had about 38
percent and Illinois had 49.
Ms. Millender-McDonald. See, we don't tell them that their
provisional ballots are not going to be counted.
Secretary Blackwell. And Arnold is not the Governor of Ohio
either. I understand that we have different laws.
Ms. Millender-McDonald. So is your law in conflict with
HAVA?
Secretary Blackwell. No. HAVA says that in terms of the
counting of ballots, jurisdiction is determined by state law.
State law has been well established in the state of Ohio as
being in the precinct.
Ms. Millender-McDonald. Mr. Blackwell.
Secretary Blackwell. Yes, ma'am.
Ms. Millender-McDonald. Another thing, if you can clear
this up with me, because I have a list of problems from Ohio as
I will have a list of problems from California and any other
state that we go into. This problem says that voters were told,
whether it was incorrectly or correctly, and incorrectly in
this instance, that the presidential election would be on
Wednesday the 3rd of November as opposed to November 2nd.
If you have this really widespread educational campaign
program where there are videos and people from the media, why
would that be something that voters were told? If that is
correct, that is another provision or statement that
disenfranchised people.
Secretary Blackwell. The answer to that is I don't have a
clue why somebody would do something so devilish and evil. I
don't have a clue, but the fact of the matter is----
Ms. Millender-McDonald. You hadn't heard that before today?
Secretary Blackwell. I heard it. I don't have a clue why
they would have done it. I still don't know the motivation. You
can't even tell me who did it.
Ms. Millender-McDonald. No, I cannot.
Secretary Blackwell. Right. You can't tell me who did it. I
have not a clue because we spent money telling people when the
election date was in the 88 counties. You tell me why. A lot of
the assertions are made on Internet boards or a lot of the
assertions are made by wild conspiracy theories. I have no
idea. If I could interpret their brains and their minds, I
would be a rich man.
Ms. Millender-McDonald. You know what, Mr. Blackwell? Then
why is it that this statement of those who went before this
House of Congress on January 5, 2005, exercising their rights
to raise questions of either improprieties or
misinterpretations of allegations, or whatever you want to
define these, why were they characterized as nasty and
disingenuous partisan people when, in fact, either side of that
spectrum, had it fallen on whichever side, you would have the
same type of exercise?
I guarantee you that because I have been in the Congress
long enough to see that exercise played out on both side of the
spectrum. Why do you call Americans who are elected officials
who are trying to exercise their constitutional right to
inquire nasty and disingenuous?
Secretary Blackwell. Let me say that anyone who alleged,
intimated that any of our professional election officials or
the Secretary of State or the Secretary of State's employees
promulgated that nonsense is disingenuous and silly. I really
don't care what their nationality is.
Ms. Millender-McDonald. We are not speaking on nationality,
sir, nor culture nor gender.
Secretary Blackwell. That is my point. I call it as I see
it. Anybody who suggests that there was an election
organization, official election organization in the State of
Ohio that promulgated that misinformation is disingenuous or
silly and I stick by that label.
Ms. Millender-McDonald. Let me say this. You knew ahead of
time that these members were going to come to the floor and
speak their displeasure about the selection. Why didn't you
then write a letter to try to clarify some of this as opposed
to calling them nasty and disingenuous?
Secretary Blackwell. Well, let me just say----
Ms. Millender-McDonald. You are a man of honor.
Secretary Blackwell. And integrity and professionalism and
the list goes on.
Ms. Millender-McDonald. And humble.
Secretary Blackwell. Very much so. I will submit for the
record the Cleveland Plain Dealer and the Columbus Dispatch
third party media representatives who did thorough analysis of
the allegations, so it wasn't any propaganda coming from the
Secretary of State's office. I, in fact, didn't need to be
there. Representatives of our state, the Chairman included,
submitted for the record these independent analysis. Yeah, I
didn't need to write a letter.
That is why they are elected and that is what they get paid
to do and they do it well. They stuck to the facts. You would
have to have the imagination of Jonathan Swift to believe some
of this nonsense that was promulgated on that day.
Ms. Millender-McDonald. Let me say my last thing here, Mr.
Blackwell. In your statement you say that when the intimation
of some vast conspiracy to steal the election is so much more
exhilarating and speaking to the whole notion that they were
experienced, the elected officials, those who knew the process,
Mr. Blackwell, and that you were disappointed with this
bipartisan type of chat.
Let me say this to you and Mr. Walch. While Mr. Walch
states that he has only had one complaint and you are saying
that these are the only folks who--only the disciplined
partisans were the ones who have been very upset about this
election. What about the average Joe? What about the average
Jean?
What about those who think like those whom you have just
outlined? Mr. Walch, we have been inundated with calls from
Ohio. Maybe your lines are tied up with other things because
those calls are coming to us. But you cannot always identify
the partisans. You said yourself, Mr. Blackwell, that you got a
lot of registrations of third party people.
Secretary Blackwell. Absolutely.
Ms. Millender-McDonald. So how can you make that type of
assumption or comments that they were partisan acts?
Secretary Blackwell. I am glad that you directed folks to
that segment of my fully submitted statement for the record.
Ms. Millender-McDonald. I am just trying to get some
clarification.
Secretary Blackwell. I am glad that you pointed that out. I
will suggest to you that it was an interesting--let me just
give you a quote. Let me compliment a partisan in this regard.
On September 29, 2004, Dan Travis, spokesperson for the Ohio
Democratic Party, called Blackwell's decision, and this is a
quote, ``A victory for the citizens of Ohio. You can't attempt
massive deception and fraud to make the ballot,''
Travis said. ``The law is clear on this and they did not
follow the law.'' This was in the context of an article which,
in fact, spoke to the face that I was pretty evenhanded in my
decision and that I didn't let partisan persuasion get in the
way. He was subsequently fired.
Ms. Millender-McDonald. By whom?
Secretary Blackwell. The Ohio Democratic Party. He was
subsequently fired for speaking the truth.
Ms. Millender-McDonald. Thank you, Mr. Chairman.
The Chairman. Thank you, gentlelady.
The gentlelady from Ohio
Ms. Tubbs-Jones. Mr. Chairman, thank you very much.
Secretary Blackwell, it is so kind of you to come before our
Committee and answer questions.
Secretary Blackwell. Good to see you.
Ms. Tubbs-Jones. It was so good to see me that you chose
not to shake my hand in the anti-room. Is that correct, sir?
Secretary Blackwell. I chose not to shake your hand.
Ms. Tubbs-Jones. That is the question. You chose not to
shake my hand in the anti-room because it was so good to see
me. Is that right?
Secretary Blackwell. I chose not to shake your hand until I
see how you purport yourself in this setting.
Ms. Tubbs-Jones. Well, you know what? Watch me, sir.
Secretary Blackwell. I have been watching you a lot.
Ms. Tubbs-Jones. Let me ask you this question. Could you
answer this question for me, sir, please? A quote said, ``I
chose not to enforce the procedures with regard to the five-
minute vote.'' Can you tell me where the five-minute vote is
listed and how you have the option of deciding whether somebody
has five minutes to vote or 25 minutes to vote?
Secretary Blackwell. I said we didn't have that problem in
this election because we basically erred on the side of the
voter. Now, if you want me to create longer lines, if you want
me to say Ohio is the state that harasses, the fact of the
matter is those are local decisions. Because I only have 12
people, we did not, in fact, encourage the enforcement of the
five-minute rule.
Ms. Tubbs-Jones. So you are saying there is a rule under
Ohio law that says people only have five minutes to vote and
when they don't vote in five minutes, you can push them out of
the line and tell them to keep going?
Secretary Blackwell. Unfortunately.
Ms. Tubbs-Jones. Would you please cite that for us, please,
the citation?
Secretary Blackwell. We will get it for you. Before you
leave we will have it for you.
Ms. Tubbs-Jones. Let me also ask you, sir, you quoted--you
seem to want to quote so many Democratic persons in support of
your position. You quoted Don McTigue in your written statement
and it says--let me quote a statement about the outcome.
``Overall Ohio has a good system. Like any system if you
scrutinize it enough, you are going to find weakness.''
I was interested that Mr. McTigue would make such a
statement so I called him up and asked him was there anything
else that he said and he specifically stated to me that there
were some deficiencies. ``If you look close enough you will see
problems like lack of procedure, lack of leadership, and lack
of consistency in direction from the Secretary of State.'' Just
so the record is clear, I just wanted to add that to the
record, sir.
Now, let me also ask you, sir, I saw your TV ads giving
education to people about voting. Can you tell us specifically
what you told the voter with regard to voting location, sir?
Secretary Blackwell. Vote in your precinct. What we, had
instructed and in accordance with Ohio law, Boards of Elections
were to tell voters that they must, in fact, vote in their
precinct for their vote to count.
Ms. Tubbs-Jones. Did you tell them in their ad that if they
couldn't vote in your precinct they could go vote at the Board
of Elections?
Secretary Blackwell. No, the Boards of Elections did.
Ms. Tubbs-Jones. No, but you were the one spent $2.5
million doing a TV ad for people who, in fact, have the
opportunity to do punch card voting because 70 percent of the
people in Ohio do punch card voting.
Secretary Blackwell. Absolutely.
Ms. Tubbs-Jones. In this ad you said, ``Vote your
precinct,'' but you never told them that if they couldn't vote
in precinct, they could go the Board of Elections and vote. Did
you, sir?
Secretary Blackwell. I sure didn't.
Ms. Tubbs-Jones. Excuse me?
Secretary Blackwell. Can't you hear? I said I sure didn't.
Ms. Tubbs-Jones. And you did not why?
Secretary Blackwell. Because you can only get so much
information in a 30-second ad which is the most----
Ms. Tubbs-Jones. That was important information because you
just gave that to all of us for the world to see, sir, that
either you go vote at a designated voting location, you vote in
your precinct, or you go to the Board of Elections.
Secretary Blackwell. Absolutely. And that is what they were
told. We made sure that those 50,000 election officials and
poll workers understood that was an option for someone who was
in the wrong precinct but was insisting on----
Ms. Tubbs-Jones. But you did an ad statewide.
Secretary Blackwell. Just----
Ms. Tubbs-Jones. You did an ad statewide that you spent
$2.5 million on and you didn't tell them.
Secretary Blackwell. And it worked.
Ms. Tubbs-Jones. Except----
Secretary Blackwell. It worked. It worked. It worked.
Ms. Tubbs-Jones. When you get through saying ``it worked''
let me go on. How many more times are you going to say it
worked?
Secretary Blackwell. It worked. It worked and I will say it
worked every time you ask the question. The education program
worked and if you want the details on it, you can have them,
but it worked. The fact of the matter is that we have--among
popular states, we had the best validation rate and that meant
that those folks counted.
Ms. Tubbs-Jones. But you----
Secretary Blackwell. And our campaign was----
Ms. Tubbs-Jones. Just let me know when you are done.
Secretary Blackwell. I sure will. Our campaign was Make
Your Vote Count. The surest way to make your vote count was to
vote your precinct. What I don't have in here--let me tell you
what I don't have in here. We went into a million households by
phone and they were essentially urban households and they were
disproportionately in your district and in Cleveland. We told
people there how to vote their provisional ballot. We told them
to call their Board of Elections and we had a system that
allowed for that. Let me tell you, as much as you want----
Ms. Tubbs-Jones. Mr. Chairman, I can't let you use all my
time answering the questions you have already answered.
Secretary Blackwell. As much as you want to create a third-
world situation in the United States, most households, even in
your district, have telephones and we, in fact, called them. We
called them. I want you to know that we paid particular
attention to your constituents. We called in and told them how
to vote that provisional ballot to make their votes count
because what I wanted was as many votes to count as humanly
possible.
Ms. Tubbs-Jones. Are you done, sir?
Secretary Blackwell. For right now.
Ms. Tubbs-Jones. So you specifically said--you called into
my district and you told people to go vote their precinct but
you never told them they could go vote at the Board of
Elections?
Secretary Blackwell. No, we told them----
Ms. Tubbs-Jones. The answer is yes or no, sir.
Secretary Blackwell. No, it is not yes or no. We told them
to call the Board of Elections so that they would, have the
option of where to go.
Ms. Tubbs-Jones. But you could have told them. Let us count
the words. Vote in your precinct or vote at the Board of
Elections. Call the Board of Elections. Same number of words.
You could have said to them vote at the Board of Elections.
Could you have not, sir?
Secretary Blackwell. But given that I was elected Secretary
of State with a constituency much larger than yours, I chose
the language for that ad.
Ms. Tubbs-Jones. And in the ad you specifically excluded
you could vote at the Board of Elections.
Secretary Blackwell. Right. Look, let me just say, all you
had to do was go back and look at that ad. We told them where
to call. We got them to our website. That information was right
there so they got that information. We, in fact, made sure that
coworkers understood to give them that information. I will tell
you what. I refuse to sit here and be harangued by you.
Ms. Tubbs-Jones. You know what, Mr. Blackwell? I am not
trying to harangue you, sir. If you choose not to----
Secretary Blackwell. Hold on. Let me----
The Chairman. Time has expired.
Secretary Blackwell. Thank you.
Ms. Millender-McDonald. Mr. Blackwell, Mr. Chairman, just
one thing, though. Not every voter has a master's degree. Not
every voter has a bachelor's degree. We tend to want to make
sure that information is on a level where everyone understand.
Now, had you said that you vote this way or that way or your
vote would not be counted, that would have sparked----
Secretary Blackwell. Madam, look. Both of us are trained
educators.
Ms. Millender-McDonald. I am sorry?
Secretary Blackwell. Both of us are trained educators.
Ms. Millender-McDonald. Yes.
Secretary Blackwell. I, in fact, used the language that a
bipartisan firm, and you can have the copies. These are the
same guys that did work for Bill Clinton. We used the language
that they recommended and they were very much familiar with the
demographics.
Ms. Millender-McDonald. You know, bipartisan doesn't mean a
thing when these folks speak over----
Secretary Blackwell. But did you hear the ad? Did you hear
the telephone message?
Ms. Millender-McDonald. No, I did not see the ad.
Secretary Blackwell. We will get you the--hold your
judgment on the complexity of the message on the telephone.
Ms. Millender-McDonald. I am wide open to anything.
Secretary Blackwell. We will get you that.
Ms. Millender-McDonald. The last thing I want to say to you
is one of you local county folks said that 30 days--in fact, it
was Mr. Andrews or Anthony.
Secretary Blackwell. Anthony.
Ms. Millender-McDonald. Thirty days out there was a map
outlining where the precinct would be and it was a change of
venue. Three weeks from the election the misinformation was
disseminated which means it became absolute chaos so says Mr.
Anthony. Now, those were also problems and issues why many were
concerned about the disenfranchisement of voters.
Mr. Walch, do you want to answer?
Mr. Walch. If I could, Mr. Chairman, Congresswoman. That,
again, was a case of folks making calls. We have no idea who
was making those calls or who they were making them to that
were calling folks in Gahanna and telling them that they were
now supposed to go vote in Canal Winchester. I don't know the
specific jurisdictions. Those were not made by election
officials or anything like that. I felt the Franklin County
Board of Elections when this came to light that somebody was
out making these types of phone calls, Franklin County Board of
Elections did a very good job of getting it in the newspaper,
that if anybody had any question of where they were to go to
vote, they would contact the Board of Elections.
Ms. Millender-McDonald. Mr. Walch, do you find that is
possibly trying to disenfranchise others?
Mr. Walch. Absolutely. No question about it but it was not
done, again, by election officials or anybody like that. We
have no idea who did it. Somebody with an agenda of some sort.
That would be very hard to determine.
Ms. Millender-McDonald. If you did not know who did it, it
could very well have been done by some elected folks who were
on either side of the spectrum. Let us be fair about this. You
cannot say it was not done given that you don't know who did
it.
Secretary Blackwell. Right. I can say this. In fact, until
proven with hard evidence otherwise, we will defend the
professionalism and the integrity of the 50,000 election
officials and poll workers in this state. I would defend them
to the teeth.
Here for your record, and let me just say to the
gentlewoman from California, California taught me the fact that
we have an obligation to be bilingual.
Ms. Millender-McDonald. I am sorry? An obligation to what?
Secretary Blackwell. To be bilingual.
Ms. Millender-McDonald. Oh, yes.
Secretary Blackwell. Because we have the fourth highest
migrant worker population in the country after California,
Texas, and Florida. A lot of those folks just migrate, but some
families stay around. The Spanish-speaking population has
exploded in portions of our state. The outline of how every
dollar was spent, the accounting firm, and our report to the
controlling board and the legislature is in this document.
We, Mr. Chairman, will make sure that you get that. We will
also make sure that the citing for the gentlewoman from
Cleveland will be granted to the Committee so there is no
misunderstanding about it. I wrestled with it in 2000 because
it was a real problem right again here in Franklin County,
where people were forced out of the voting booth because they
were taking too long.
This is not a perfect science, but if you are standing in
line and you have to be at work or you have to go to the
babysitter and somebody is taking 15 minutes in that booth and
that adds to your line, you now see the human dilemma. Do you
rush that person in the booth or do you inconvenience that
person who is ready to vote and standing in line?
Those are the on-site decisions that local election
officials have to make and that is what we try to do from our
historical experience in 2000. We first try to go to the
legislature and say, ``Look, that makes sense.'' I would
suggest this to you, Mr. Chairman, that the DRE system is not
necessarily a quick system so we have to understand what the
tradeoffs are in these new systems. We have to understand that
Ohio is becoming more and more a state with referendum or
making the ballot. Citizens are speaking out on issues. That
means that the ballot is going to become more complex.
Ms. Millender-McDonald. That is a good thing.
Secretary Blackwell. But it is going to be more complex and
it is going to require greater voter education at the county
level. Hopefully in 2006, we will not have the punch card
dilemma in the state of Ohio or any place in this country.
The Chairman. Secretary of State, if you are done, there is
a question for Mr. Walch by the gentlelady from Cuyahoga
County. I would conclude with a brief question to the subject
of our hearing today, HAVA. Mr. Secretary, are there any areas
in particular that you think we need to readdress or look at on
HAVA, or should we let it go to the EAC for a while? Is there
anything in general?
Secretary Blackwell. Here is the dilemma that we have. It
is an age-old dilemma and American federalism. You see it going
on now with a case in Florida. Where do federal rights to
protect human dignity and human rights and civil rights start
versus state rights? You have this issue as to whether or not
there is a state requirement of a VVPAT and there is no
national requirement.
The question is: Are you willing to take a risk on a
machine that has gone through, and we will give it to you, the
most comprehensive vetting process in the country but it still
has some security issues? Does the Congress? Does this
Committee? Any of us want to own that by putting a machine that
has not met security concerns? If our search is for the perfect
system, it does not exist. We have to make some decisions based
on money that is available.
I know why this committee has every intention to try to get
us more money. I have to work from the fight that we have $150
million in the bank and that cannot buy an infinite number of
machines. It can only by a finite number of machines. The VVPAT
increases, at minimum, the cost of the machines, as we
understand the design right now, about 25 percent.
If, in fact, one of the things that we want to do is to buy
more machines to reduce the voter-to-machine ratio, then we
don't have enough money so there has to be some understanding
and some tradeoff on functionality of machines, vote security,
and dollars available. You have a state government that is
talking about a $5 billion deficit. I can't imagine with the
prosecution of the war that you are going to get any more money
through the Congress.
Maybe you will. If so, more power to you because it is
needed. I can tell you right now that the county governments,
there might be one or two or three or four or five or six or
seven that might tax their own citizens for more expensive
machines. For the present you all are the only game in town and
the question for us in charge of election administration really
does turn on our ability to get this thing done within that
budget.
Mr. Chairman, you all accommodated me and I thank you for
that. I do think for the public because this is one of the more
outstanding issues in front of us that the Chair said you would
hear from Pat Wolfe. Pat Wolfe has one of the most important
responsibilities on a day-to-day basis. As you indicated, she
came not only from your district but she came from the ranks of
election professionals. She was a Deputy Director of a Board of
Elections. She was a Director. I have told you in my comments
that she is one of the most certified election professionals in
the country. I do think that for the record we must understand
that while I take ownership for complying with state law in the
paperwork standard, I think you owe it to Pat to hear why she
recommended it to me.
The Chairman. Let us go to Pat. I think we are finished
with the questions. Let me also thank you for being here. Also
the $3.9 billion, just to clear that up, people ask how much
the feds will supply. We said $3.9 billion.
We need to fund $3.9 billion. We don't want to live the
next five, six, seven, 10 years knowing that we gave another
unfunded mandate. The commitment we made to all the groups is
that we want to provide the $3.9 billion.
Ms. Millender-McDonald. Absolutely, Mr. Chairman. Mr.
Blackwell, you were saying that you have $105 million in the
bank?
Secretary Blackwell. For machines.
Ms. Millender-McDonald. Oh, for machines.
Secretary Blackwell. For machines. Again, the money that
you all have given for centralized voter registration, not only
was it needed, it was well used and we were among the leaders
in the country in implementing that system. It will get at some
of the concerns that you all have talked about today.
Congresswoman Tubbs-Jones, the citing is 305----
Ms. Tubbs-Jones. Are you reading from that, sir?
Secretary Blackwell. Yes.
Ms. Tubbs-Jones. Can I read with you?
Secretary Blackwell. 305.23. ``Occupancy of voting
compartment.''
Ms. Tubbs-Jones. Can I read with you?
Secretary Blackwell. ``Marking and return of ballot.''
Ms. Millender-McDonald. Is there another copy?
Secretary Blackwell. I'll give you this for the record.
Quite naturally I want it for the record. I have a copy, I will
read it for the record, and I am going to submit it to you.
``No voter shall be allowed to occupy a voting compartment or
use a voting machine more than five minutes when all other
voting compartments or machines are in use and voters are
waiting to occupy.''
Ms. Tubbs-Jones. So clearly you know that provision,
305.23, which I haven't had an opportunity to see, sir, is
inappropriate and probably violates the civil rights of many
voters, etc., so you chose not to enforce it.
Secretary Blackwell. What I chose to do is to try to get
the legislature to change the statute because I don't think it
is fair and I do think that it runs the chance of
disenfranchising somebody who is not necessarily illiterate,
but a slow reader.
Ms. Tubbs-Jones. And that is what I just said.
Secretary Blackwell. Okay. The answer is yes, I thought it
was very important to change it. Nobody has challenged the
constitution--I mean, the civil rights aspect of it, so I don't
know----
Ms. Tubbs-Jones. But as the Chief Elections Officer for the
State of Ohio you surely want to bring it to the attention of
everybody so that would never happen to a voter because we are
concerned about it.
Secretary Blackwell. I already did. I already did, dear. I
already, did. I already did. It was one of the things that I
jumped on right away after the 2000 election, believe me.
Ms. Tubbs-Jones. Thank you, Mr. Secretary.
Secretary Blackwell. You are most welcome. You can come
visit me anytime.
The Chairman. Thank you. We will move on to Pat Wolfe.
STATEMENT OF PAT WOLFE
Ms. Wolfe. I will give you the background of the voter
registration form. I have been in election work for 21 years
and there has always been a paper weight because it is a
permanent record. If you are registered as I have been for
almost 27 years or more, it is a permanent record of your
registration. It stays with the County Board of Elections so it
must sustain during that period of time.
One of the other things that was encountered during the
process of all of this, not only is it a permanent record, but
when the National Voter Registration Act occurred and designed
then the new form that all the boards should use, it also
required it be a self-mailer. In order to meet the United
States Postal Service requirements for that type of product, it
had to meet a minimum thickness which is .007 inches. In order
to accommodate that right now it takes an 80-pound paper
weight. The reason the postal service has that is because of
their new processing machines. You don't have all the hand
stamping that you used to have in the processing many years
ago. It is now electronic. It is very high speed. It grabs
those cards and it will destroy voter registration cards.
It was one of the main purposes that anything that is a
self-mailer must meet that paper weight. Unfortunately, as with
any election, I am sure there is not a board in this state and
our office that those that are damaged have been on the light
weight paper have been mailed as a self-mailer and they come
totally shredded up.
At times we can make out a date or make out a name or maybe
a county, but we cannot tell who that voter is. That is what is
occurring with voter registration forms as far as damage that
is occurring when they are mailers. As the Secretary pointed
out, it was brought to our attention, particularly with this
year, were all of the hand-delivered forms that were being
done, which was very unusual.
It became an issue with the boards and they were saying,
``Okay, the paper forms are coming on regular weight paper but
they are being hand delivered.'' As soon as the Secretary was
aware of that and the issues it was creating for the boards, we
tried to go back out with information to allow them on regular
weight. He did come back out and said, ``Now, we will accept
them on that weight since they are hand delivered.''
The Chairman. Any questions? The gentlelady from
California, any questions?
Ms. Millender-McDonald. No. I am sorry, Mr. Chairman. I was
just trying to see what time I have left. I have to take a
plane out so I have about 15 minutes.
The Chairman. Thank you. No further questions? I want to
thank you for being here today and for sharing your testimony.
Thank you.
We will move on to the last panel.
STATEMENTS OF EDWARD FOLEY, PROFESSOR OF LAW, OHIO STATE
UNIVERSITY, MORITZ COLLEGE OF LAW AND DIRECTOR, ELECTION LAW AT
MORITZ PROGRAM; DANIEL P. TOKAJI, ASSISTANT PROFESSOR OF LAW,
OHIO STATE UNIVERSITY, MORITZ COLLEGE OF LAW; MARK F. (THOR)
HEARNE, II, NATIONAL COUNSEL, AMERICAN CENTER FOR VOTING
RIGHTS; NORMAN ROBBINS, CO-COORDINATOR, GREATER CLEVELAND VOTER
REGISTRATION COALITION
Ms. Millender-McDonald. Mr. Chairman, because of the time
constraints, can we just ask these gentlemen to just give us an
overview?
The Chairman. Edward Foley, Professor of Law, Ohio State
University, Moritz College of Law. Mr. Tokaji had to leave from
Ohio State University due to the time factor. And Mark Hearne,
National Counsel, American Center for Voting Rights, and Norman
Robbins, Co-Coordinator, Greater Cleveland Voter Registration
Coalition. Starting with Mr. Hearne.
STATEMENT OF MR. MARK HEARNE
Mr. Hearne. Thank you, Chairman Ney and members of the
House Administration Committee. Because of the late hour my
testimony has been presented and, as the Ranking Member
requested, I will give you just a brief overview of what I did
address in that testimony and I will be available for any
questions.
My name is Thor Hearne. I am a principal of the Lathrop and
Gage Law Firm, I am a long-time advocate of voter rights and an
attorney experienced in election law. I was asked and served on
the Missouri HAVA implementation committee which helped
Missouri comply with HAVA and bring Missouri into compliance. I
was asked to serve in that capacity by Secretary of State Matt
Blunt.
Today I am here in my capacity as the counsel for the
American Center for Voting Rights. The American Center for
Voting Rights is a nonpartisan watchdog voting rights
organization and legal defense organization which is committed
to defend the rights of voters and to work to increase public
confidence in the fairness of our election process.
I am joined in this effort by almost a dozen different Ohio
lawyers who were involved in this past election representing
several of this state's most prestigious law firms. During the
conduct of the last election different events were brought to
our attention. This report of these events has been assembled
and we presented it to the committee. I would ask, Mr.
Chairman, that this report be included in the record.
The Chairman. Without objection.
Mr. Hearne. The essence of my remarks go to the role, which
has been much discussed today that third parties played in the
conduct of this election. You have heard it from a number of
different witnesses. Specifically, different panelists have
spoken of the role these third party groups played in voter
registration, fraud and voter intimidation. I think you
mentioned several times, Congresswoman Millender-McDonald, the
concern about people making phone calls to deceive people as to
the date of the election or where their polling place was.
Those are reprehensible acts.
Anybody who makes an effort to have an illegal vote cast is
disenfranchising a legal voter. Similarly, any effort to try to
prevent anyone from voting who is entitled to do so needs to be
very severely dealt with. We are very concerned about that.
That was one of the issues which this report goes into.
Mr. Chairman, the questions that I believe need to be
addressed aren't just what individuals were involved, but what
groups were involved. As I said, there is a massive effort in
Ohio, as you have noted Congresswoman Millender-McDonald, this
was because of Ohio's status as a battleground state where an
onslaught was made against the Ohio election system by third
parties with outside interests that are seeking to try to
influence the election result in Ohio.
One of these means by which that was done is the type of
voter registration fraud that we have seen. We had a reference
earlier today to the absolutely outrageous case which happened
in Defiance County, Ohio, in which an individual was paid by
the NAACP Project Vote in crack cocaine to submit more than 100
fraudulent voter registration forms including the now infamous
Dick Tracy, Mary Poppins, Michael Jackson, and George Foreman.
The fraudulent voter registration effort was in many ways
only part of the onslaught that Ohio experienced. We saw also
the concern that has been expressed because of the litigation.
These election lawsuits caused great chaos and confusion and
difficulty for the election officials seeking to implement Ohio
election law and made it more difficult to have a fair and
honest election.
My observation, and that of those who have submitted this
report and contributed to this report, is that Ohio election
officials worked very hard, both Republican and Democrat, in a
bipartisan way to make sure Ohio citizens enjoyed a fair and
honest election.
The concern that we present to this Committee is that
presented by these third party groups and their role sponsoring
the submission of fraudulent voter registration forms and
promoting strategic litigation seeking to remove the safeguards
that would have prevented fraudulent registrants like Dick
Tracy from actually casting a ballot that was counted. This
litigation seeking to eliminate safeguards against voter fraud
is another significant point of concern that we bring forward
to this committee at this point. I will let the balance of my
remarks, Mr. Chairman, stand in the prepared testimony.
The Chairman. Thank you, Mr. Hearne. Without objection.
Mr. Foley.
[The statement of Mr. Hearne follows:]
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STATEMENT OF MR. EDWARD FOLEY
Mr. Foley. Mr. Chairman and members of the Committee, thank
you for inviting me here today. My name is Edward Foley. I am a
professor at the Moritz College of Law at the Ohio State
University where I also serve as the Director of the Election
Law program at Moritz.
I ask that my full testimony be made part of the record
which I understand it can be at this hour. I apologize again on
behalf of my colleague, Dan Tokaji. If it is appropriate, can I
ask that his written testimony be made part of the record as
well?
The Chairman. Without objection. Please give our apologies
to him.
Mr. Foley. Thank you. The basic point of my testimony is to
say that the election system in Ohio is not sufficiently well
designed to withstand a close election. That was true in 2004.
It is true currently the way the legislative drafting of Ohio
law is today.
Ms. Millender-McDonald. Say that again, sir.
Mr. Foley. The election laws in Ohio are not sufficiently
well designed to withstand a close election. This is a point
that applies to lots of other states besides Ohio. The
Governor's race in the state of Washington is an illustration
of what can happen in a very close election so I don't mean to
single out Ohio in this regard.
The reason in my judgement why Ohio did not have a severe
crisis in November of 2004 was simply that the outcome was not
close enough to sufficiently test the system. A well designed
election system in my judgement would be one that can withstand
a close election. It is like building skyscrapers to prevent
earthquakes. You want to build the skyscraper so that it can
withstand a 7.0 on the Richter Scale or whatever.
I do think we have a better system than we had in 2000. I
think HAVA helped in that regard. It was a necessary piece of
legislation but, in my judgement, it is not sufficient. We have
improved our ability to withstand closer elections. If the
margin of victory, so to speak, on election night in 2004 in
the presidential race in Ohio had been 1 percent or half a
percent, i.e., around 30,000 votes or 60,000 votes, I think we
would have had a terrible situation and we wouldn't be able to
say that the state withstood the pressures.
Ms. Millender-McDonald. Mr. Chairman, Mr. Foley,
notwithstanding your statement, irrespective of the number of
votes, and this is why I said earlier we were not looking at
overturning an election. We are talking about when one voter is
disenfranchised and that is questionable irrespective because
we cannot have one voter disenfranchised in any state,
California, Ohio, or whatever. When you have a multitude of
folks saying they were disenfranchised, it becomes an issue.
Mr. Foley. I agree completely. We had significant problems
in the state of Ohio in terms of disenfranchisement of
individual voters. I think a well crafted election system would
provide remedies and redress to individual voters for those
denial of fundamental civil rights. I also think that there is
a social and civic statewide interest that the system be able
to measure whether or not a close election was accurately held
and accurately counted.
The problem in Ohio is that we don't have the rules yet in
place to do that. Representative DeWine mentioned some pending
legislation in Ohio which hopefully will address many of these
issues. I was pleased that he itemized some matters that would
go to that. As current law stands, that is not true and it
primarily relates not exclusively but primarily relates to the
issue of provisional voting. Provisional voting is very
important.
It is a necessary piece of the electoral system. We do not
have in Ohio the laws for determining as enacted by the general
assembly for determining when to count provisional votes and
how to avoid the necessity of too many provisional votes
because when you have over 2 percent of all ballots casts
provisional ballots, that means that if the margin of victory
is within 2 percent, say a half a percent or 1 percent, that
means the outcome of the election is going to be in doubt
because of all the number of provisional ballots that are left
to be counted.
When you combine this fact with the electoral college time
table, the so-called safe harbor date which is five weeks after
election day, there is not the time table to handle the
counting of provisional ballots, the evaluation of provisional
ballots in the month of November in such time to resolve that
and to handle any contest action so that there could be----
Ms. Millender-McDonald. How do you find too many
provisional ballots? How do you find that? Most of the time
provisional ballots are given to the minority population.
Mr. Foley. Well, every voter--I agree with statements made
earlier today by a number of people that every individual who
comes to the polling place should have the opportunity to
receive a provisional ballot. That is an essential safety net
in the process.
I also think it is important to figure out how they could
have received a regular ballot if they are, indeed, a
registered voter qualified to vote because it would be better
for the voter and better for the election system as a whole if
they had been able to vote a regular ballot rather than a
provisional ballot.
Ms. Millender-McDonald. That is true but that is in the
aftermath, not during an election time.
Mr. Foley. Correct, but a well designed system would be one
that avoided the problems ahead of time. Provisional ballots
are like a fire extinguisher some have said. You want to have
one in your house and you use it if you need to but it would be
better to avoid the fire in the first place. This should
probably be done as a matter of state legislation as opposed to
new federal legislation but we do need new legislation to come
up with a system before election day that will verify voter
registration lists and give voters the opportunity to see why
their names are not on the voter legislation list when they
should be because they are registered, because they are
qualified.
There needs to be a process in the months of September and
October that gives them a fair opportunity to say, ``Yeah, I
belong on the list. I was wrongly removed from the list as
occurred in 2000.'' That should happen in September and
October. That should not happen in November as part of the
evaluation of the provisional voting process. All the issues
that were teed up to have huge litigation in Ohio in '04 if it
had been--if the margin of victory had been within the margin
of litigation, all of those issues about eligibility could
actually be handled ahead of time.
They are the same set of questions that could be addressed
in September and October and it would be better for everybody
if they were addressed then rather than after election day when
people know the number of votes that they need to fight over to
flip the election. That is the situation that I have heard in
the Governor's race in Washington where we see both sides
saying, ``We know what numbers we need to make up in order to
flip the result.''
The Chairman. Let me interrupt. The gentlelady has to leave
for a flight. I want to thank our Ranking Member for being
here.
[The statements of Mr. Foley and Mr. Tokaji follow:]
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Ms. Millender-McDonald. I have two minutes to listen to Mr.
Robbins.
STATEMENT OF MR. NORMAN ROBBINS
Mr. Robbins. What I have to say gives information that says
that Professor Foley is right. We have data that show that of
the 30,000 provisional ballots that were rejected in Ohio, in
2004, thousands could have been prevented, first by proper
registration procedures, as detailed in my written testimony.
Second, the exercise of Ohio law requiring voters to go
only to their home precinct led to numerous mistakes where
people were denied their ballot. We have the data for that from
Cuyahoga County. We polled 16 other counties and they have
about the same type of rejection rates. Two-thirds of
rejections were on registration issues, and nearly one-third
were due to wrong precinct.
Election fraud keeps coming up here. Two legal associates
went to their databases and found that in all the elections of
2000 and 2002 there was not a single relevant conviction in
Ohio that went to the appeals level. Not a single one.
In the election of 2004 I understand from data just
obtained today there are only two cases under investigation in
Cuyahoga County. In 10 years there were all of five cases that
went to the appeals court level in Ohio, so do not tell us that
election fraud is rampant unless you have got the facts to
prove it.
I wanted to say some other things but that is my two-minute
part for you before you leave.
Ms. Millender-McDonald. Well, I did not come here with the
intent of telling you that there was election fraud.
Mr. Robbins. No. Many other people here mentioned that.
That is why I wanted to get this out.
Ms. Millender-McDonald. You have to recognize that we came
here to get the facts.
Mr. Robbins. Right.
Ms. Millender-McDonald. And you have outlined those to us
affably. Mr. Chairman, thank you so much. If I didn't have to
catch this last flight out trying to get to California, I would
stay here.
The Chairman. I was just told by the sergeant of arms--
actually, your staff told me this is the first congressional
hearing in the Ohio State House on record since 1803.
Ms. Millender-McDonald. Oh, for Heaven's sake. Should you
not applaud this man or what?
The Chairman. I want to thank the gentlelady for traveling
here and for your genuine interest in our election system.
Ms. Millender-McDonald. We have a bipartisan kiss for you.
The Chairman. We will continue on.
Mr. Robbins. Thank you, Mr. Chairman, and thank you for
inviting me. I just had to get out those two points before the
Congresswoman left. I wanted to give you the good news which is
that thanks to HAVA 120,000 Ohioans successfully voted
provisional ballots. I think that is a credit to Congress and
to HAVA. I am not just the bearer of bad news. I do think we
need to focus as well on what we still can do, as you have
said, to address the 30,000 Ohio of provisional ballots that
were rejected.
In the interest of time, I will simply enumerate very
briefly, (this is laid out in the written testimony) that
thousands of registrations (estimated Ohio-wide) were either
never entered--we certainly have this data for Cuyahoga
County--or were entered incorrectly because of clerical or
voter errors. We point out voter errors as well as clerical
administrative errors. Also, we have evidence in Cuyahoga
County that voters who were legitimately on the rolls were
suddenly dropped by the time of election.
By the way, everything I say is not imputing any ill
intent. I believe these were purely administrative kind of
normal errors. As Professor Foley pointed out, when you have an
election as in Ohio that was decided by a little over 2 percent
of the vote between the two candidates, we need to talk about
errors that we have studied (projected Ohio-wide) which come to
about 1 percent.
In other words, had the election been closer, as Professor
Foley said, to a 1 percent level, we would have been in the
world of Florida 2000. We do need to make changes in these
registration procedures. We do need to have more opportunity
for voters to get educated ahead of time.
As Professor Foley said, again, every election official
will tell you that it is far better to prevent provisional
ballots by proper notification procedures, corrections, etc.,
than it is to wait until the day of election. That issue, I
think, should be addressed and the suggested reforms are there.
I won't go through them in the interest of time. Also, as I
mentioned before, we estimate that about 5,000 provisional
ballots Ohio-wide were unnecessarily rejected because of the
home precinct rule.
We estimate based on what we have learned in Cuyahoga
County, and as I mentioned earlier, the reasons for rejection
of provisional ballots are about two-thirds because of
registration issues. They were said not to be registered.
Almost one-third were rejected because of wrong precinct.
The Chairman. You mean the voter ended up in the wrong
precinct?
Mr. Foley. They were disqualified because the provisional
ballot was found to be in the wrong precinct, yes. And then
there are a bunch of other smaller percentage reasons. They
don't add up to 100 but you know what I mean. So are the two
that are worthy of major focus. What was interesting is that
the 21 other counties that we polled had about total-wise the
same percentage as Cuyahoga did so we think our studies in
Cuyahoga do, indeed, apply to the rest of Ohio.
We know, for instance, that voters were in--in Cuyahoga one
study, not by me but by another person, found that voters were
in their correct polling place. Many, half of those rejected,
must have been directed to the wrong precinct table. Whether
they went there or the poll workers sent them there is another
matter. Others received incorrect precinct location
information. This can be fixed. Then others voted provisionally
in despair because they simply didn't have time to go to a
different precinct.
I would like to say, and I have presented you a graph in
the written testimony, that shows that the percentage of
rejected ballots in the 88 counties is about the same in
counties that voted more for Bush than for Kerry as they are in
the counties that voted, the percentage of rejections.
If you look at across that graph that I present to you, you
will see by I that if the county was more than 50 percent, say,
for Bush, their rejection rates county by county were about the
same as those counties that were more than 50 percent for
Kerry. In other words, this issue of rejection of provisional
ballots is a bipartisan issue. Voters of both sides have been
affected.
That is not to say that it is equal across the population,
however, and that is a longer story. I don't have time but it
is laid out. It is common sense but it also fits with census
data that there are certain subpopulations that move a lot. We
all know that.
Those are youth, people--this is just U.S. Government
Census data--youth, people who earn less than $25,000 a year
whether they live in Appalachia or Cleveland probably, and
minorities, African-American and Hispanic. Those communities
move more and we made an estimate that every time you move you
are at a 6 percent risk--that is just a broad number--of not
getting registered correctly because of everything you have to
go through.
The bottom line of everything I have to say, though, is
that we still have practices that tend to disenfranchise
legitimate voters. Reasonable and often inexpensive solutions
are available. This is not rocket science. There are good
solutions out there. Thirdly, fair-minded Americans want to
include every eligible voter. All we need is the political
will. Thank you.
The Chairman. Thank you.
[The statement of Mr. Robbins follows:]
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The Chairman. I have a question. I will ask one and then I
will defer to the gentlelady. Provisional ballots. Not to beat
a dead horse, but provisional ballots were the most important
mechanism to stop disenfranchisement. Now I think what I am
hearing today is that the Help America Vote Act, for the most
part, by instituting this policy, did its job to make
provisional ballots national.
I know that a newspaper called me from Texas and said,
``Aren't you worried you are going to hold up an election and
it will take a few days to decide?'' You know what? I am going
to take a few days to decide, and people want to know that
their votes count, especially in a close election. I don't
think it has to be decided by that evening at midnight that you
have to have your winner. It is more important to take as long
as you need to make sure that the winner is the proper winner,
and it is done as fairly as possible.
The goals of HAVA remain the same in Ohio as they are
across the nation. It is the chief objective of HAVA to have
provisional ballots work. What you are saying is that either
there needs to be some fine tuning here within the state or do
we need to have fine tuning federally within the state of Ohio
and the other states? Both Mr. Robbins and Mr. Foley raised
this issue.
Mr. Foley. Mr. Chairman, yes. Thank you. I think we
certainly need state legislation. There could be some fine
tuning at the federal level for the following reason. HAVA uses
the term eligibility under state law. In other words, states
must count a provisional ballot towards the certified result if
the voter is eligible under state law. That is subsection A.4
of section 302.
It does not use the term registered. That same section 302
uses the word registered elsewhere so what we were seeing in
Ohio in terms of the 6,000 lawyers who were coming to the state
on both sides in preparation for possible litigation was to
attempt to develop an argument, and there are arguments on both
sides, as to whether eligible was different from registered or
the same as registered as a matter of federal law.
The most significant issue that we were lucky enough to
avoid but we might have had was tens of thousands of ballots,
provisional ballots, were in the category of individuals whose
registration forms, these were new registrants who had
submitted incomplete registration forms for one reason or
another so they were not on the registration rolls.
They had not been given an opportunity to correct or
supplement the missing information but they were qualified
voters under state law in the sense that they were citizens.
They were not felons. They were over the age of 18. On one
theory they were eligible to vote but they weren't registered
so there are arguments on both sides of this issue and,
frankly, plausible arguments.
I could make a judgement as to which was the better
argument but we were going to see litigation on both sides of
that. That issue is out there for the next election as to how
to interpret federal law. It is analogous to the question of
meaning of jurisdiction. We did get the 6th Circuit decision on
jurisdiction.
We don't yet have case law on the meaning of eligibility
because that just didn't come up. It didn't need to be tested.
If there was a desire on the part of Congress to avoid possible
litigation over HAVA, I would point to this language as a way
to clarify the meaning of HAVA to avoid a potential litigation
on that.
The other point, if I might quickly say, I agree very much
with the Chair that we can take more than just election night.
It seems to me that the concept of certification is going to
occur of necessity at least two or three weeks after an
election. We have to wait for the overseas ballots to come in.
What we saw in Ohio with over 150,000 provisional ballots
statewide was a process that took more than just a couple of
weeks.
We didn't have the counties reporting to the states until
Monday, December 3rd. We didn't have statewide certification
until--I am sorry, Friday, December 3rd. We had statewide
certification Monday, December 6th. Safe harbor date this year
was Tuesday, December 7th. There would have been no time
whatsoever to have a recount or a contest had one been a
necessity in terms of a close election.
It took all of that five-week period simply to evaluate
provisional ballot eligibility. If we, again, use the analogy
of the Washington Governor's race, if the Washington Governor's
race had been shut down on safe harbor date, December 7th, the
Republican candidate Rossi would have been inaugurated because
on that date he was still ahead after the first machine
recount. Washington is still working through their process.
They didn't finish their recount until New Year's Eve so we got
a different inauguration as a result of that and----
The Chairman. I think we have been through three recounts.
Mr. Foley. So it is true that we can take more than a day
or two but in a presidential race we have only got a total of
five weeks and then Bush v. Gore tells us that the process has
to stop because of the safe harbor.
Mr. Robbins. I would like to respond to your question about
federal versus state handling of provisional ballots. I do have
detailed in my written testimony several suggestions that I do
believe are more general. That is, they don't give specifics,
which states could supply, but they would give general and
uniform requirements across states for at least federal
elections, such as that voters should really know whether or
not they are registered properly.
There should be websites and public instructors, for
instance, at public libraries or elsewhere that would get out
to voters long before the registration deadline whether or not
they are effectively registered. If they are not, voters can
take corrective action. That should be a general requirement
and there should be a certain time limit so that this gets
done, perhaps with assistance from HAVA for this. Secondly, for
instance----
The Chairman. I am sorry. Assistance in?
Mr. Robbins. I think that there could be, for instance,
advertisements, television ads, radio ads that would be
generic, that could be adapted to states, that the federal
funds could help supply and then at the local level would help
get out the word. The EAC, for instance, could help states or
counties devise websites to check registration or precinct.
That way, each county would not have to reinvent the wheel to
have an excellent website.
The voter could go to the websites or to public libraries
where noncomputer literate type people could go. The librarians
could be trained to help people answer, ``Am I registered
correctly?'' We did this in Cuyahoga County. We also put out
radio ads when we found out that people's registrations
sometimes were accidentally not even entered after they were
handed into the Board of Elections.
Our organization kept careful records of our registrations.
Some never got on the rolls through clerical error, or were
entered incorrectly, we found. We have all the numbers and data
on this for Cuyahoga County. I am not saying that Cuyahoga
County was any worse than the rest of the counties in Ohio. I
don't believe so.
I think those election officials in general were excellent,
and did their job as well as they could. There should be
federal assistance and a requirement that there be this kind of
notification and voter education. There should be uniform
standards. For instance, we found that voters were getting
dropped, as I mentioned before.
We checked through computer tracing and found that some
people who were on the rolls as of August or in October or
November, ended up with rejected provisional ballots because of
being not registered. They had been on the rolls.
The Chairman. They were rejected provisional ballots?
Mr. Robbins. Yes. That is how we located them. We did a
computer search starting with ballots that had been rejected
for the reason of not being registered. We started with those
names in Cuyahoga County. We just used the Cuyahoga County
database. Then we asked, had those people, the same people,
been on the roll proviously. In one case we had a registration
list from August. In another case a registration list from late
October.
We asked had they been on the regular registration list
that was given to us by the County Board of Elections. The
answer was that we discovered over 900 people just within
Cuyahoga County who fit this category. That is, they had been
on the rolls in August or October and for no reason we could
understand were rejected--they weren't dead if they showed up
on election day and they weren't incarcerated.
The Chairman. Just for my information, they were given a
provisional ballot but it wasn't counted.
Mr. Robbins. It was rejected.
The Chairman. They were given the actual----
Mr. Robbins. They had voted provisionally thinking that
they were registered because they understood that they were
registered. They had no reason to believe they were not. Over
900 people that we found had been on the rolls at these earlier
times. I can go into more detail on this if you would like but
the bottom line is that we submitted all these names and
addresses to the County Board of Elections at Cuyahoga County.
We never got an answer. We wanted them to check our
information. We submitted them in November, early November. We
have not received an answer from them. We presented this to the
Board of Elections and they did nothing with it.
The Chairman. Due to the time, I would like to follow up
with you.
Mr. Robbins. By all means, sir.
The Chairman. Gentlelady.
Ms. Tubbs-Jones. Mr. Chairman, I just want to again echo my
colleagues' thanks for us having this hearing today. I have to
say for the record, Mr. Robbins and I worked very, very hard
before the election trying to get as many people legitimately
registered, legitimately at the right voting place. We did
radio and we did all kinds of things working with Mr. Michael
Vu at the Board of Elections trying to cure. There are
accusations flying that we weren't trying to get people to do
legitimate things. We were really working very hard and I just
want to compliment Mr. Robbins for all the work that he did, he
and his organization, The Greater Cleveland Voter Registration
Coalition, as well as Mr. Vu, the Director of the Board of
Elections.
Our claims, our efforts have been nothing but above ground
in an effort to assure that every vote counted and I just want
to thank him for his testimony. I am not going to ask anymore
questions because Mr. Robbins and I have been in so many
meetings together that I have no questions for him. I would
offer him or Mr. Foley or Mr. Hearme--I am sorry. I don't have
my glasses on.
Mr. Hearne. Hearne.
Ms. Tubbs-Jones. Hearne. I am sorry, Mr. Hearne--an
opportunity to offer anything. In view of the time constraints
I would hope that it would be limited. Then I am going to give
it back to you, Mr. Chairman.
Mr. Robbins. Can I just say one 30-second thing as a
follow-up to what you have asked and then I am going to yield
to everybody else. I am a scientist and from another field but,
nonetheless, that is why I ask these questions. That is why I
ended up doing these studies this year because that is how I
think.
What struck me today and all through the last few months is
that there have been a ton of anecdotes and almost no research.
I think there is a desperate need. This research we did was
done on a shoestring with volunteers and minimum resources.
This is not NIH research yet and look what we found. Nobody
else seems to have been doing this kind of work. We desperately
need research on all of these many issues that have been raised
today.
For instance, what are the real causes and effects of long
lines, how many voters were actually disenfranchised, how long
did they take to vote. That would be one set of questions. Does
showing an ID increase the reliability of a vote or does it
disenfranchise people? Those are answerable questions. How many
people truly have been convicted of election fraud? What do we
really know about this in terms of cases and convictions? Not
anecdotes because, of course, there will always be outrageous
things. My appeal is that you fund research on these topics so
you are not making legislation on the basis of allegations and
anecdotes.
The Chairman. Which comes to my question. In politics that
is called, at least in Washington, there is indeed a need to
research our legislation.
Mr. Hearne, you reference about the calls about the date
and place of the election. Do you reference it in your
testimony?
Mr. Hearne. Yes, I do. Let me first address your question,
Mr. Chairman. The report that we submitted is exactly what Mr.
Robbins suggested. It is facts. It is not anecdotes. It is
absolute factual document. It has first-hand news accounts. It
has different court cases. It has different affidavits of
different people. It is all first-hand accounts of what
happened during this presidential election in Ohio in 2004
dealing with the role of a third-party organization trying to
influence the result. In answer to your question, Mr.
Chairman----
Ms. Tubbs-Jones. Can I just ask one quick question? Those
are parties on both the Republican and Democratic side?
Mr. Hearne. This report concerns all the litigation. It
comes from, as I mentioned, 12 different lawyers participated
in this. Multiple different law firms were involved in an
overview of the conduct of the litigation.
Mr. Chairman, to your question, the Ranking Minority Member
this afternoon asked, and there was some discussion, back and
forth with Secretary Blackwell about phone calls in which
somebody was directed to the wrong polling place and people
were told that the election would be on the 3rd of November
instead of the 2nd. Obviously an official effort to misinform
voters with the intention that they not vote is a great
concern. That actually is a factual account.
If some people didn't know about that we have provided in
this report the court documents documenting that situation.
What actually happened is that there was an organization in
Marion County, it was actually the Kerry campaign, that was
involved in making these telephone calls. This involved
litigation in Common Pleas Court in Marion County. Phone calls
were made by the compaign and others. A local Democrat Party
official in Marion County said that they shouldn't be making
those calls. We have an affidavit from an official of that
party attesting to this process. The judge, in fact, when the
case was first decided was one who received the call. The fact
that this was going on isn't just an anecdote.
One of these deceptive phone calls was received by the
judge who was first set to hear the case. He assigned it to
another judge because he received the call. Then that second
judge entered an injunction against the Kerry Campaign and
others to prevent that kind of activity. These are the kind of
things that are documented. That is something that did, in
fact, happen. That is not just an urban legend here in Ohio.
Ms. Tubbs-Jones. And you have that document from someone
verifying that the Kerry Campaign paid for those calls?
Mr. Hearne. Congresswoman, it is an affidavit of the Marion
County Chairman of the Democrat Party that is part of that
court litigation as well as the people who received the calls.
All those documents are in the report as exhibits.
The Chairman. I don't have any additional questions.
Ms. Tubbs-Jones. Mr. Foley, you look like you want to say
something so go right ahead.
Mr. Foley. If that is okay. As an academic I would have to
echo the notion that more research would be good. Specifically
on the notion of what I referred to as the usage rates on
provisional ballots. Of all the ballots in a particular state,
absentee, regular ballots, etc., what percentage of the total
vote ballots were provisionals?
That is the information that has not been studied very
well. Electionline.org did a great report that just came out a
few days ago but they focused on some other matters. It seems
to me that one thing that Congress may want to encourage the
EAC to look at is why did Ohio have almost 3 percent of its
ballots be provisional whereas other states like New Mexico and
so forth were well under 1 percent. Pennsylvania is higher. In
other words, the rate at which states needed to rely on
provisional ballots varied widely across the country. It seems
to me that is something worthy of more research.
Ms. Tubbs-Jones. Some real quick ones. What is your
position, Mr. Hearne, on early voting?
Mr. Hearne. I think that is----
Ms. Tubbs-Jones. Maybe I better not give you the
opportunity. Do you support early voting?
Mr. Hearne. I support whatever makes voting easier and
also----
Ms. Tubbs-Jones. No-excuse registration, absentee ballots?
Mr. Hearne. In the words of Kit Bond, it should be easy to
vote and tough to cheat. We need to balance those two factors.
I think that you can craft a way to respond to it.
Ms. Tubbs-Jones. Mr. Foley, what about you?
Mr. Foley. On early voting, yes. I would support early
voting.
Ms. Tubbs-Jones. I would----
Mr. Foley. Not necessarily two weeks but some form of it.
Ms. Tubbs-Jones. It was stated earlier that the opportunity
that people should not--they did not support early voting
because voters were not educated enough until the last 30 days
of an election to be able to make a decision. You are an
academic. What is your position on that?
Mr. Foley. My thought is to start Saturday morning and run
through Tuesday night. Again, I would need some more empirical
data to support that intuition but my thought is that if you
had four days, that would be a good balance between not doing
it too early but giving enough people ample time to pick
their----
Ms. Tubbs-Jones. The question was do you think that voters
are not educated enough to vote earlier?
Mr. Foley. No, I do not. I think they are informed.
Ms. Tubbs-Jones. Mr. Robbins, I know your answer.
Mr. Robbins. Yes, I am for early voting. I do want to point
out that absentee voters who vote from home or a nursing home,
can't get to either an optical scanner that gives them feedback
or a DRE that gives them feedback. Those voters are at a
disadvantage. In Cuyahoga County in 2000 absentee voters had a
4 percent over/under vote rate versus the overall county rate
of about 2 percent. Absentee voters who vote from home don't
have the advantage of a machine with feedback of any kind, and
are at a disadvantage and need extra education. That is a
recommendation.
The Chairman. Thank you.
Mr. Foley. Two very quick points. One is as the centralized
statewide registration database goes forward and it is
implemented in '06, I think both Congress and EAC should look
at how those lists get verified. My understanding is that
states are in different places on this and some are in better
place than others but however well they are doing, there has to
be a process by which voters can say, ``Hey, a mistake was
made. I should be on that list. I am not on that list.'' I
don't see that yet in legislation either at the federal or
state level. Secondly----
The Chairman. You don't see that in legislation. You have
verification.
Mr. Foley. I understand the HAVA mandate is to create the
database. I have not seen in HAVA, and correct me if I am
wrong, a requirement that states have a process for giving
voters the opportunity to correct mistakes in that database. I
don't also see the states themselves putting those processes
into place as they assemble their database.
What I have in mind, and I would be happy to do this in any
form that would be helpful to the Committee, is a procedure for
notifying local boards saying, ``I think I am a registered
voter. I submitted a form but I don't see my name on your
list.'' If that can be done again in September and October, I
think that would be helpful but I don't see those procedures in
state law or in federal law.
The Chairman. We researched some of this with Democrat and
Republican staff. We went over and talked to seasoned voters
and found out, some interesting things. For example, the state
of Virginia sends you an e-mail, if you have e-mail which
contains a ballot.
Then you print it out in your office or the American
Embassy. You fill it out and then mail it back. We can look
towards the scientific side, the research side, the statistical
side. Even though today we can't go over every aspect, I think
it is well worth it to look at the database and how it is going
to be implemented, which I believe addresses your point. We can
put it in place under the law but how is it actually carried
out? The centralized database is probably the more statistical
part of the bill.
Mr. Foley. Correct. Related to that, as I understand it,
the provisional voting idea was an important idea in response
to inaccurate purging. What we saw, unfortunately, in Ohio was
uncertainty as to what list local officials should go back to
to make sure people weren't purged. Some counties were simply
going to their most current list and saying, ``If you are not
on that list, your provisional ballot doesn't count.''
In other words, there was lack of clarity as to what
mechanism needed to take place when you took in that
provisional ballot. How do you check to see whether a purge had
occurred or not? Again, as we implement the databases, I think
technologically one thing that can happen is there could be a
requirement that the database preserve all historical records
so that if you were ever on the list, that is maintained so
even if subsequently someone is removed from the roles, there
is an historical electronic archive of previous iterations of
the statewide database. That would be a good measure.
The Chairman. We seek the advice of the community. Tomorrow
morning, if you use your ATM, you can bet that your bank knows
your transaction amount to the penny. Not two cents or three.
They know to the penny, and eventually you can do it with the
voters to make sure that they know it is fair and accurate.
Ms. Tubbs-Jones. All you have to do is send this one little
e-mail to Iraq and Afghanistan to guarantee folks.
The Chairman. One point on that. I can remember people
saying, ``You've got to be kidding. $3.9 billion is too much
money.'' For example, we spent $5 billion on overseas
democracy. I have no quibble with that and my colleague doesn't
either. It helps build democracy.
If we can spend $5 billion over there, we can spend $3.9
billion here. I don't think it is too much. People down the
road will feel good about this, and have the confidence that
their vote was fair and counted. As Kit Bond said, easier to
vote and harder to cheat.
With that I want to thank our----
Ms. Tubbs-Jones. Before we close, Mr. Chairman, again, on
behalf of both the Republican and Democratic side, we want to
thank you for hosting this hearing and giving us an opportunity
to begin query and having fun with us but being serious as well
so thank you, Mr. Chairman. We really appreciate it.
The Chairman. I want to thank our Ranking Member, but also
my colleague from Cuyahoga County, Stephanie Tubbs Jones, who
has also participated in D.C. with us on these issues. I think
it is a good healthy thing that has happened here today. I
appreciate all of your time. I ask for unanimous consent that
members and witnesses have seven legislative days to submit
material to the record, for those statements and materials to
be entered in the appropriate place in the record. Without
objection, the material will be entered.
I asked for unanimous consent that the staff be authorized
to make technical and confirming changes on all matters
considered by the Committee for this hearing without objection.
So ordered. Having completed our business for today, I want to
thank you again, the last panel, for being so patient. This
hearing is adjourned. Thank you.
[Whereupon, at 6:35 p.m. the committee adjourned.]