[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
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VOTER SUPPRESSION
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HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS, AND CIVIL LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
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FEBRUARY 26, 2008
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Serial No. 110-100
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Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.govFOR
SPINE deg.
VOTER SUPPRESSION
VOTER SUPPRESSION
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS, AND CIVIL LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
FEBRUARY 26, 2008
__________
Serial No. 110-100
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
U.S. GOVERNMENT PRINTING OFFICE
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MAXINE WATERS, California DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts CHRIS CANNON, Utah
ROBERT WEXLER, Florida RIC KELLER, Florida
LINDA T. SANCHEZ, California DARRELL ISSA, California
STEVE COHEN, Tennessee MIKE PENCE, Indiana
HANK JOHNSON, Georgia J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida
BRAD SHERMAN, California TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
Perry Apelbaum, Staff Director and Chief Counsel
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Subcommittee on the Constitution, Civil Rights, and Civil Liberties
JERROLD NADLER, New York, Chairman
ARTUR DAVIS, Alabama TRENT FRANKS, Arizona
DEBBIE WASSERMAN SCHULTZ, Florida MIKE PENCE, Indiana
KEITH ELLISON, Minnesota DARRELL ISSA, California
JOHN CONYERS, Jr., Michigan STEVE KING, Iowa
ROBERT C. ``BOBBY'' SCOTT, Virginia JIM JORDAN, Ohio
MELVIN L. WATT, North Carolina
STEVE COHEN, Tennessee
David Lachmann, Chief of Staff
Paul B. Taylor, Minority Counsel
C O N T E N T S
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FEBRUARY 26, 2008
Page
OPENING STATEMENTS
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Chairman, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 1
The Honorable Trent Franks, a Representative in Congress from the
State of Arizona, and Ranking Member, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 2
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, Chairman, Committee on the
Judiciary, and Member, Subcommittee on the Constitution, Civil
Rights, and Civil Liberties.................................... 3
The Honorable Mike Pence, a Representative in Congress from the
State of Indiana, and Member, Subcommittee on the Constitution,
Civil Rights, and Civil Liberties.............................. 5
WITNESSES
Mr. Asheesh Agarwal, Deputy Assistant Attorney General, Civil
Rights Division, Department of Justice
Oral Testimony................................................. 6
Prepared Statement............................................. 9
Mr. J. Gerald Hebert, Executive Director and Director of
Litigation, Campaign Legal Center
Oral Testimony................................................. 57
Prepared Statement............................................. 59
Mr. Hilary O. Shelton, Director, Washington Bureau of the NAACP
Oral Testimony................................................. 80
Prepared Statement............................................. 82
Mr. Tom Emmer, Deputy Minority Leader, Minnesota State House of
Representatives
Oral Testimony................................................. 83
Prepared Statement............................................. 86
Ms. Lorraine C. Minnite, Ph.D., Assistant Professor, Barnard
College
Oral Testimony................................................. 108
Prepared Statement............................................. 110
APPENDIX
Material Submitted for the Hearing Record........................ 129
VOTER SUPPRESSION
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TUESDAY, FEBRUARY 26, 2008
House of Representatives,
Subcommittee on the Constitution,
Civil Rights, and Civil Liberties,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:30 a.m., in
Room 2141, Rayburn House Office Building, the Honorable Jerrold
Nadler (Chairman of the Subcommittee) presiding.
Present: Representatives Conyers, Nadler, Davis, Wasserman
Schultz, Ellison, Scott, Watt, Cohen, Franks, and Pence.
Staff present: David Lachmann, Subcommittee Chief of Staff,
LaShawn Warren, Majority Counsel; Kanya Bennett, Majority
Counsel; Caroline Mays, Majority Professional Staff Member; and
Paul Taylor, Minority Council.
Mr. Nadler. This hearing of the Subcommittee on the
Constitution, Civil Rights, and Civil Liberties will now come
to order.
Today's hearing will examine the problem of voter
suppression and the work of the Department of Justice in
protecting the right of all voters to exercise their franchise.
The Chair recognizes himself for 5 minutes for an opening
statement.
Today's hearing is part of the Subcommittee's continuing
oversight over the work of the Department of Justice's Civil
Rights Division and its responsibility to protect the right to
vote. I can think of no more important right than the right to
exercise the franchise freely, fairly, without fear or
intimidation.
Our Nation's history is one of expanding inclusion. We have
expanded the franchise to include all persons, regardless of
race, color or previous condition of servitude, gender, and
age. We have enacted the Voting Rights Act, the Help America
Vote Act and the Motor Vehicle Voter Law. We have just renewed
the Voting Rights Act in the last Congress with almost no
dissent.
The rights on paper are not the same as rights in fact. For
that we need vigorous enforcement.
Efforts by both official and private parties to suppress
the vote, especially of certain groups targeted by race or
belief, are unacceptable. Today we examine that problem and the
extent to which the Department of Justice is faithfully
discharging its duty to protect the rights of all voters.
We have an outstanding lineup of witnesses. And I want to
welcome them, and I look forward to their testimony.
With that, I yield back. I would now recognize our
distinguished Ranking minority, the gentleman from Arizona, Mr.
Franks, for his opening statement.
Mr. Franks. Well, thank you, Mr. Chairman. Mr. Chairman,
voting is the life blood of a democracy. And there are no
legitimate leaders in a democracy without legitimate elections.
I would like to draw to everyone's attention two letters
that were sent about a month ago to the Nevada state Democratic
party. These letters illustrate the danger posed when we cannot
verify legal voters or when existing voting laws go uninforced.
Both letters request an investigation into voter suppression
regarding actions taken by the Clinton and Obama presidential
campaigns. I will first read from the letter from the Obama
campaign.
``I request that the Nevada state Democratic party conduct
an inquiry into an apparent and disturbing pattern of incidents
reported at precinct locations throughout the State during the
January 19th caucus. These reports suggest the possibility of
activity conducted in violation of party rules and the rights
of voters, activity that, as the volume and distribution of
these complaints indicate, may have been planned and
coordinated with the willful intention to distort the process
in favor of one candidate, Senator Clinton.
``A sheet of instructions provided by the Clinton campaign
to its precinct workers captures its program for the caucus.
`It is not illegal unless they, the temporary precinct chairs,
tell you so.' ''
This certainly suggests that for the Clinton campaign the
operative standard of conduct was simply and only what it could
get away with.
The Obama campaign claimed to receive well over 1,000
accounts of misconduct. ``Those Hillary people closed the doors
on our people, and we had to call the cops in some precincts to
have locks cut from the doors. They slipped people in the back
doors. They sent people home at 11:30 when it was illegal to
prevent people from voting before noon.''
Another wrote, ``In precinct 21 a Democratic worker who was
clearly for Hillary refused to register Obama supporters and
said she was registering Hillary supporters only.''
Now let us read the letter from the Clinton campaign.
``The Clinton campaign wishes to bring to your attention,''
speaking again to the party, Mr. Chairman. ``We have received
evidence, a premeditated and predesigned plan by the Obama
campaign to engage in systemic corruption of caucus procedures.
Compounding this blatant distortion of the caucus rules was an
egregious effort by the Obama campaign to manipulate the voter
registration process in its favor thereby disenfranchising
countless voters.
``Caucus chairs obviously supporting Obama deliberately
miscounted votes to favor Senator Obama, deliberately counted
unregistered persons as Obama votes and deliberately counted
young children as Obama votes. Many Clinton supporters were
threatened with employment termination or other discipline if
they caucused for Senator Clinton.''
These incidents may constitute any number of very serious
violations of Federal elections laws. The Obama campaign's
allegation that Clinton campaign workers were ``turning our
supporters away by asking to see their I.D.s and telling them
they weren't valid,'' is particularly unsettling, since such
abuse could be remedied if there were a single secure
universally recognized and accepted voter I.D.
My own state of Arizona has enacted just such a law. Public
support for secure voter I.D. remains very strong, Mr.
Chairman. According to the independent pollster, Scott
Rasmussen, ``Support for the concept is overwhelming. More than
three-fourths of Republican supporters showed identification as
did 63 percent of Democrats and independents, 58 percent of
Blacks, 69 percent of Whites, and 66 percent of other ethnic or
racial minorities backed the concept.''
Indiana's voter I.D. law proves that such laws do not
diminish voter turnout. Rather--and this is the important
point, Mr. Chairman, rather, they can increase voter turnout by
giving legal voters the security of knowing that their vote
will count and that it will not be negated by the vote of
someone voting illegally. Curiously, it has turned out that the
lead plaintiff challenging the Indiana law was actually
illegally registered to vote in two States.
Dual registration invites voter fraud, and the plaintiff
actually reinforced Indiana's defense arguments. With these
concerns in mind, I look forward to hearing from all of our
witnesses today and to exploring what Congress and the Justice
Department can do to help maintain the integrity of the
election process.
And thank you, Mr. Chairman.
Mr. Nadler. I thank the gentleman.
I now recognize for an opening statement the distinguished
Chairman of the full Committee, Mr. Conyers.
Mr. Conyers. Thank you, Chairman Nadler.
And thank you, too, Ranking Member Trent Franks, because
this is not an insignificant matter that we are bringing
forward. The right to vote is the basis that all our Democratic
form of government is built on. I only want to add a comment
from the excellent statement issued by Chairman Nadler.
Because you see, too many Americans continue to face
barriers preventing them from exercising their right to vote.
If you don't believe that, take a look at all the work the
NAACP has done, the Mexican-American Legal Defense Fund, the
American Civil Liberties Union, the Asian-American Legal
Defense Fund, to name a few. And it has become and will become
obvious because of these important hearings of increasing
targets of minority communities' voters of voter suppression
tactics, of which there seem to be an ever-expanding number.
So the critical question to be asked here this morning is
what is the Justice Department doing to protect the right to
vote for all Americans, particularly in light of the upcoming
presidential election now only months away. The right to vote
and fair access to the ballot box are obvious--the components
of a truly Democratic society.
Now, the department's enforcement record in recent years
bears scrutiny. That is why we are here. First, I am troubled
by the department's over-emphasis on pursuing voter fraud
cases, which were the basis of a number of the firings of U.S.
attorneys and what is now widely regarded as the politicization
of the Department of Justice itself.
And we are pursuing these so-called voter fraud cases to
the exclusion of voter suppression cases. Given the fact that
voter fraud is so rare and that State law enforcement agencies
are already actively pursuing individual voter fraud cases, the
department's policy represents, from my point of view, a
misallocation of scarce resources and misplaced priorities.
Department records show 24 people were convicted or pleaded
guilty to illegal voting, not last year, but between the years
2002 and 2005. That is an average of eight people a year. While
voter fraud is not to be ignored, it is unacceptable for the
department to pursue voter fraud cases and disregard flagrant
examples of voter suppression.
Now, the next item that we want our invited guests to think
about with us is the department's decision to intervene in
support of the controversial Indiana photo identification law,
thought to be one of the most Draconian pieces of legislation
of its type in the country. It is particularly problematic
because without doubt, this law will disenfranchise minorities,
the elderly, the disabled.
And to make matters worse, the Department of Justice has
sent letters to 10 States, Iowa, Massachusetts, Mississippi,
Nebraska, North Carolina, Rhode Island, South Dakota, Texas,
Utah, and Vermont to pressure them to purge their voter rolls
before the 2008 election, which could adversely effect many
thousands of voters.
And finally, despite complaints about vote caging incidents
that occurred in Ohio, in Pennsylvania, Florida, Nevada, and
Wisconsin during the course of the 2004 presidential election,
the department didn't file a single lawsuit to stop this
illegal practice. Instead, the department officials incredibly
wrote a letter defending the GOP, the Republican efforts to
engage in vote caging.
And so, Mr. Chairman, it seems to me in recent years
instead of promoting access to the poll, the voting section of
the Department of Justice seems to have used its enforcement
authority to deny access and promote barriers to block
legitimate voters from participating in the political process.
The Civil Rights Division has failed to fully enforce Section 2
of the Voting Rights Act largely aimed at combating racial
discrimination in the voting process.
And in the first 6 years of the present Administration,
fewer Section 2 cases were brought by the voting section than
in any other Administration since 1982. The number of Section 2
cases brought on behalf of African-Americans has come to a
virtual standstill.
While different Administrations have different enforcement
priorities, it is a dereliction of duty for the Civil Rights
Division not to bring voter suppression cases on behalf of
African-Americans to protect their constitutional right to
vote. The department's role as a protector of voting rights is
critical, especially as this upcoming election approaches.
And already voting problems and questionable tactics in the
ongoing presidential primaries are surfacing. So, please, Mr.
Representative of the Department of Justice, consider these
points that have been brought to your attention, and let us
plan to really get to work on them.
And, Mr. Chairman, I thank you for the additional time that
you gave me.
Mr. Nadler. I thank the gentleman.
The gentleman from Indiana is recognized.
Mr. Pence. Thank you, Chairman. Thank you for the courtesy.
And no one on this Committee holds the Chairman of this
Committee, of this full Committee in higher esteem than I do.
But I felt duty-bound as a loyal Hoosier and someone who also
cherishes the blood-bought right to vote to speak a few moments
in opening remarks on behalf of the voter I.D. law in the state
of Indiana.
Respectfully quoting the Chairman, I think if I took my
notes correctly, he referred to Indiana's law as one of the
``most Draconian pieces of legislation of its type in the
Nation,'' and also asserted that it would ``disenfranchise the
elderly and the disabled.'' I would like to just say by way of
opening remarks that I take exception to those
characterizations of our law.
I am anxious to hear the testimony of our witness today
about the department's decision to file an amicus brief in the
Supreme Court in the Indiana voter I.D. law. The reality is
recent experience under Indiana's voter I.D. law shows that
such laws do not diminish voter turnout at all. In fact, there
is some evidence that they increase voter turnout.
As was recently reported, voter turnout among Democrats
improved slightly last year in Indiana despite a new law
requiring voters to show photo identification at the polls.
Jeffrey D. Milo, a professor at the University of Missouri
compared the 2006 mid-term elections, the first since Indiana's
law was enacted, to the 2002 elections and said voter turnout
increased about 2 percentage points. He said the increase was
consistent across counties with the highest percentage of
Democrats.
I am anxious to get our witnesses' sense of where this
increased turnout derives. Many of us in Indiana believe that
securing voter I.D. laws and requiring legal voters to
demonstrate their identity at the polling place actually
encourages participation because it gives people confidence
that their vote will count and that there is fundamental
integrity in the system.
And let me also say that despite the characterization of
this law as Draconian, there is enormous public support for
securing voter I.D. laws. According to the Washington Times
recently, ``Two-thirds of Americans, including a majority of
racial and ethnic minorities, say the government should make
voters show photo identification before voting.''
Sixty-three percent of Democrats and Independents, 58
percent of Blacks, 69 percent of Whites, 66 percent of other
ethnic and racial minorities backed the concept. And I would
love to hear our witnesses' reflections on what accounts for
the popularity of these laws.
I am grateful, Mr. Chairman, for the courtesy of this
opening statement. But we in Indiana anxiously await the
Supreme Court's judgment in this matter.
But I must say that in my humble opinion that requiring
voters to demonstrate their identity with a photo
identification is the way we do at airports, the way many of us
do when we are engaging in financial transactions, I believe,
actually encourages participation. It encourages voter
confidence, and it builds on a foundation of confidence in the
system that I believe is greatly in the interest of our
democracy.
And so, with that defense of our Indiana law, I yield back.
Mr. Nadler. Thank you. I would simply point out that the
turnout in 2006 was way up all over the country, regardless of
voter I.D. cards over the 2002 election.
In the interest of proceeding to our witness and mindful of
our busy schedules, I would ask that other Members submit their
statements for the record. Without objection, all Members will
have 5 legislative days to submit opening statements for
inclusion in the record. Without objection, the Chair will be
authorized to declare a recess of the hearing.
As we ask questions of our witness, the Chair will
recognize Members in the order of their seniority in the
Subcommittee alternating between majority and minority,
provided that the Member is present when his or her turn
arrives. Members who are not present when their turn begins
will be recognized after the other Members have had the
opportunity to ask their questions. The Chair reserves the
right to accommodate a Member who is unavoidably late or only
able to be with us for a short time.
Our first witness today is Asheesh Agarwal, Deputy
Assistant Attorney General of the Department of Justice Civil
Rights Division. He heads the division's voting section. Mr.
Agarwal is a graduate of the University of Chicago's School of
Law. And we welcome you here today.
Before we begin, it is customary for the Committee to swear
in its witnesses. If you would please stand and raise your
right hand to take the oath. Do you swear or affirm under
penalty of perjury that the testimony you are about to give is
true and correct to the best of your knowledge, information,
and belief? Let the record reflect that the witness answered in
the affirmative.
You may be seated. Your written statement will be made part
of the record in its entirety. I would ask that you now
summarize your testimony in 5 minutes or less. To help you stay
within that time there is a timing light at your table. When 1
minute remains, the light will switch from green to yellow and
then to red when the 5 minutes are up.
Mr. Agarwal?
TESTIMONY OF ASHEESH AGARWAL, DEPUTY ASSISTANT ATTORNEY
GENERAL, CIVIL RIGHTS DIVISION, DEPARTMENT OF JUSTICE
Mr. Agarwal. Thank you. Mr. Chairman, Ranking Member
Franks, Members of the Subcommittee, it is a pleasure to appear
before you to represent the Department of Justice and the
dedicated professionals of the voting section of the Civil
Rights Division. I am honored to serve the people of the United
States as a deputy assistant attorney general.
I am pleased to report that the Civil Rights Division
remains diligent in protecting voting rights of all Americans.
I would like to share with you some of the highlights of our
work.
As the Subcommittee knows, the President and the Department
strongly supported the recent reauthorization of the Voting
Rights Act. The Civil Rights Division is vigorously defending
that statute's constitutionality in Federal court here in the
District of Columbia. Oral argument on the cross-summary
judgment motions was held on September 2007. I was proud to
argue part of that case myself on behalf of the Department and
in support of the law.
In addition, we have had tremendous success recently under
all of the statutes that we enforce. In the last 2 years we
have won four trials and successfully resolved three other
cases under Section 2 of the Voting Rights Act. These cases
include a lawsuit against Long County, Georgia for improper
challenges to Hispanic-American voters based entirely on their
perceived race and ethnicity. At least three of the challenged
citizens were on active duty with the United States Army. We
successfully resolved this matter with a consent decree.
The cases also include a vote dilution suit against the
city of Euclid, Ohio on behalf of African-American voters.
Although African-Americans comprise nearly 30 percent of the
city's electorate, not a single African-American candidate has
ever been elected to the nine-member city council or to any
other office.
In August 2007, the court ruled that the city's method of
electing its city council violated the Voting Rights Act. We
are proud of this result.
We are also actively pursuing other violations of Section
2. For example, we recently notified two jurisdictions that
enforcement actions have been authorized under Section 2 based
on minority vote dilution, one in South Carolina on behalf of
African-American voters and one in Florida on behalf of
Hispanic voters.
We have also broken records with regard to enforcement of
Section 208 of the Voting Rights Act. As the Subcommittee
knows, Section 208 assures all voters who need assistance in
marking their ballots the right to choose a person they trust
to provide that assistance. Voters may choose any person other
than an agent of their employer or union to assist them in the
voting booth.
During the past 7 years, we have brought nine of the 11
suits ever brought by the Department under Section 208,
including the first case ever to protect the rights of Haitian-
American voters. These suits help combat voter suppression.
For example, in Philadelphia a poll worker forbid a
Spanish-speaking citizen with limited English skills from using
her daughter to translate for her in the voting booth. This
same poll worker then entered the voting booth with the voter
and ultimately succeeded in mismarking the voter's ballot for a
candidate the voter did not wish to vote for. We were able to
resolve this matter with a consent decree.
We also remain committed to enforcing the language minority
requirements of the Voting Rights Act. We filed nine lawsuits
under these provisions in fiscal year 2007. During the past 7
years, the Civil Rights Division has brought more cases under
the minority language provisions of the Voting Rights Act than
in all other years combined since 1965. These include the first
cases ever on behalf of voters of Korean, Vietnamese, and
Filipino heritage.
Finally, the Department is busy preparing for the 2008
elections. As we have in the past, we will implement a
comprehensive election day program to help ensure ballot
access. As in previous years, we will coordinate the deployment
of hundreds of Federal Government employees in counties,
cities, and towns across the country to ensure access to the
polls as required by our Nation's civil rights laws.
In identifying locations, the Civil Rights Division will
again seek out the views of many organizations, including
advocacy groups for minority voters, for voters with
disabilities, as well as State and local officials. The
division looks forward to continuing to work closely and
cooperatively with this Subcommittee in its effort to protect
the voting rights of all Americans. I look forward to your
questions.
[The prepared statement of Mr. Agarwal follows:]
Prepared Statement of Asheesh Agarwal
Mr. Nadler. Thank you. I will begin by recognizing myself
for 5 minutes to question Mr. Agarwal.
Mr. Agarwal, historically, vote caging schemes have been
used to suppress minority votes. When allegations of vote
caging occurred back in 1990, the Department of Justice took
swift action sending the FBI out immediately to investigate.
The Department filed a Federal lawsuit against the Republican
party in, I think it was, South Carolina and the Helms campaign
and obtained declaratory and injunctive relief in the form of a
consent judgment and decree.
Has the Department's position against vote caging changed
since 1990?
Mr. Agarwal. Thank you, Mr. Chairman. The Department stands
ready to investigate any allegation that voters are being
discriminated against on the basis of their race.
Mr. Nadler. That wasn't my question. Has the Department's
position against vote caging changed since 1990?
Mr. Agarwal. Congressman, whether any particular set of
circumstances constitutes a violation of Federal law will
depend on the facts and circumstances. If----
Mr. Nadler. Excuse me. Does the Department--you are evading
my question. Does the Department still regard what is commonly
known as vote caging as depriving people of the right to vote
as illegal?
Mr. Agarwal. Congressman, with respect, that term vote
caging is subject to many meanings. Whether a particular----
Mr. Nadler. Does the Department regard what it regarded as
vote caging in 1990 and got a consent decree against--are you
still opposed to that?
Mr. Agarwal. I am aware of no change in departmental policy
between 1990 and today on that point.
Mr. Nadler. Thank you.
There were complaints of vote caging in Florida, Nevada,
Wisconsin, and Ohio in 2004. How many vote caging
investigations were initiated by the Department in response to
these complaints?
Mr. Agarwal. Again, Congressman, we are vigorously
investigating complaints that arose as a result of the 2006
mid-term elections.
Mr. Nadler. Wait a minute. I asked about 2004.
Mr. Agarwal. Fair enough. Congressman, I joined the Civil
Rights Division in the summer of 2006. To the extent that there
were concerns raised about the 2004 elections I am confident
that my predecessors in the Civil Rights Division----
Mr. Nadler. Were there any prosecutions as the result of
vote caging allegations in the 2004 elections?
Mr. Agarwal. I am aware of no criminal prosecutions
certainly.
Mr. Nadler. Were there any other kind of prosecutions?
Mr. Agarwal. Not that I am aware of.
Mr. Nadler. Okay. Why not?
Mr. Agarwal. Well, Congressman, I can tell you that the
Department has remained vigilant in protecting the voting
rights of all Americans.
Mr. Nadler. Well, so you say, but we are trying to
investigate whether that is true. There were complaints of vote
caging in Florida in 2004, Nevada, Wisconsin, and Ohio. You are
aware of no prosecutions? Were they investigated? Were these
complaints investigated?
Mr. Agarwal. Let us take Florida, if we can. I can tell you
that a member of the--a career member of the Civil Rights
Division was on the ground in Florida in advance of the 2000
elections, was aware of the caging allegations as you describe
them and worked cooperatively with State and local officials
and with members of both political parties to ensure that those
lists that were created ultimately were not used to challenge
voters.
Mr. Nadler. Well, what happened? I mean, there were
complaints after the election that they were used obviously in
Florida, Nevada, Wisconsin, and Ohio. The Department initiated
no prosecutions. Were there reports issued by the Department
answering these allegations saying they weren't true or they
weren't illegal? Or did those investigations just disappear
into the ocean?
Mr. Agarwal. Congressman, again, I joined the division in
2006, so I am not aware specifically of what happened to those
investigations.
Mr. Nadler. Can you get detailed written answers to these
questions to this Committee within the next 2 weeks?
Mr. Agarwal. I will be happy to take that back to the
Department, Congressman.
Mr. Nadler. Will you commit to getting written responses to
this Committee in the next 2 weeks, not to take it back to the
Department, to get responses?
Mr. Agarwal. I will absolutely commit to looking into it
during the next 2 weeks.
Mr. Nadler. Will you commit to having your response to this
Committee within the next 2 weeks?
Mr. Agarwal. Congressman----
Mr. Nadler. And the reason I am being so hard-nosed about
this is that our experience is that when we get commitments
from the Department to respond to us, nothing happens for
years. We never get responses.
Mr. Agarwal. Congressman, I will commit to providing some
type of written response within the next 2 weeks.
Mr. Nadler. Thank you. How do you plan to address
complaints of vote caging in the upcoming election cycle?
Mr. Agarwal. We will implement a comprehensive election day
program which will include the deployment of hundreds of
Federal monitors and observers around the country. In
determining where to deploy those people, we will----
Mr. Nadler. Excuse me. That is election day. Do you plan to
do anything in advance of election day about people or parties
or entities or groups or whoever, who send out mail to voters
in minority communities with instructions to return the mail?
Mr. Agarwal. Absolutely. Congressman, during the next 9
months we will meet regularly. And we have been meeting with
State and local election officials, representatives of, for
example, the National Association of Secretary of States with
minority groups. And we will listen to their concerns. And----
Mr. Nadler. Okay. Thank you. I have one further question as
my time is running out. So let me just ask this quickly.
I am increasingly concerned by reports of significant staff
turnover within the voting section. As you are aware, we are
quickly approaching the 2008 presidential election and the 2010
census, which means there likely will be an upsurge in Section
5 submissions.
It is my understanding that of the 25 experienced Section 5
analysts, only nine now remain. What steps are you taking to
ensure that there will be sufficient experienced Section 5
analysts and attorneys to accommodate the increase of Section 5
submissions which can reasonably be anticipated because of the
2008 election and the 2010 census?
Mr. Agarwal. Congressman, we fully intend to have
sufficient numbers of trained analysts ready to go after the
2010 census.
Mr. Nadler. What about the 2008 election?
Mr. Agarwal. We have sufficient analysts onboard today----
Mr. Nadler. Nine analysts is sufficient?
Mr. Agarwal. Congressman, in 2006 the Department was able
to analyze over 7,100 submissions, which was substantially
greater than the number typically received in an election year.
Mr. Nadler. And how many analysts did you have in 2006?
Mr. Agarwal. I don't know the number offhand, but I can get
that information for you.
Mr. Nadler. Because it is my understanding that the
Department has generally had at least 25 and that, as I said,
of the 25 experienced analysts, only nine remain. So can you
get that information to us, please?
Mr. Agarwal. I can get that.
Mr. Nadler. About how many the Department has had, how many
it has now, how many have any kind of experience longer than,
say, 2 or 3 years.
Mr. Agarwal. I can get you whatever information we have,
Congressman.
Mr. Nadler. Thank you.
I now yield for 5 minutes of questioning to the
distinguished gentleman from Arizona.
Mr. Franks. Well, thank you, Mr. Chairman.
Thank you, Mr. Agarwal. We have had a little turnover in
Congress here, too. And it hasn't been a pretty picture. I hope
you do address the Chairman's concerns there.
Mr. Agarwal, you and your Department filed an amicus brief
in the Supreme Court case involving Indiana voter law. Can you
elaborate on that and tell us why you did it and what the
effect of the law was in your mind?
Mr. Agarwal. Of course, Congressman. The Department filed
that amicus brief because the Department determined that the
issues raised in the Crawford case in the Supreme Court could
effect the enforcement of Federal law, including Federal
criminal law and on the civil side, the Civil Rights Division's
enforcement of the Help America Vote Act, which, as you know,
contains its own voter identification requirement.
Mr. Franks. Well, you know, the recent experience under
Indiana's voter law shows that the I.D. laws don't diminish
voter turnout at all, but they actually increase the voter
turnout. That has been our experience in Arizona as well. And
voter turnout among Democrats improved slightly last year in
Indiana despite a new law requiring voters to show photo
identification at the polls.
Jeffrey Milyo, professor at the University of Missouri,
compared the 2006 mid-term elections--the first since Indiana's
law was enacted--to the 2002 elections and said voter turnout
increased by about 2 percentage points. He said the increase
was consistent across the counties with the highest percentage
of Democrats.
Do you think this increased turnout could be explained--I
have made this case many times. But do you think it is
explained by the fact that securing voter I.D. laws gives legal
voters the security of knowing that their vote will count and
that it will not be negated by the vote of someone voting
illegally and thereby making them more likely to vote because
they know their vote will be counted?
Mr. Agarwal. Congressman, interestingly enough, the Federal
district court in the Georgia I.D. litigation found there was a
rational relationship between the goal of deterring voter fraud
and the enactment of voter I.D. laws. The Supreme Court had
noted in the Priscilla case from 2 years ago that increased
confidence in the elections is something that is very important
and the States have legitimate interest in.
Mr. Franks. Well, Mr. Agarwal, to your knowledge, has any
court anywhere in America found that any voter has been
prohibited from voting in a State that has a voter I.D. law
because the voter did not possess a form of I.D. necessary to
vote under that State's law?
Mr. Agarwal. I am not aware of a single court that has made
such a finding, Congressman.
Mr. Franks. And how did the Federal district court rule on
the challenge to the Georgia voter I.D. law? And explain that
to us a little bit.
Mr. Agarwal. Well, the Georgia court ultimately upheld that
State's voter I.D. law. Interestingly enough, the court found
that the plaintiff's expert report was unreliable. The expert
had relied on data showing that the district court judge
himself lacked a driver's license. And based in part on that
flawed data, the court found that the report was unreliable.
Mr. Franks. Well, Mr. Agarwal, you know, there are
sometimes claims made that illegal immigrants safe from Mexico
are voting in our elections. And I am not going to really
address that because I don't know what the circumstances there
are. But it is interesting to me that in Mexico one of the main
elements they have in their elections is a voter I.D. law. They
want to make sure that they can distinguish legal voters from
illegal voters.
And I just would say to the Chairman and to the Committee
here that I think that it is a reasonable thing to believe that
when we have confidence in the election process that that
serves the cause of democracy for all voters concerned. And I
believe that it will ultimately make this country more secure
in its own elections and even emphasize to the world in a
greater way why democracy, why a representative form of
government that relies upon every day citizens choosing their
leaders to be the best in the world.
And with that, I yield back, Mr. Chairman.
Mr. Conyers. [Presiding.] Thank you, Mr. Franks. I am
assuming the chair for Chairman Nadler while he is absent. And
I wanted to begin our discussion, Mr. Agarwal, by asking you do
you believe that voter I.D. laws increase voting among
minorities?
Mr. Agarwal. Congressman, the Department has not taken a
position on the policy angles regarding voter identification
laws. That is a determination to be made by Congress and by the
States.
Mr. Conyers. This is not a policy question. I am asking
you. I am merely asking you if you have any information,
knowledge or belief that voter I.D. laws increase voter
turnout. That is not a policy question.
Mr. Agarwal. In our amicus brief filed in the Supreme Court
we did cite to the Milyo study that was referenced by
Congressman Pence, which did find that there was an increase in
turnout after the enactment of voter I.D. laws in Indiana.
Mr. Conyers. Well, yes, but that doesn't lead you to answer
my question in the affirmative?
Mr. Agarwal. Congressman, I am really not able to answer
that question at this time. I think that would need more data.
But I can tell you that there have been--at least this one
study which did find an increased turnout.
Mr. Conyers. Sure, okay. Well, thanks a lot.
Now, we have a number of issues in my opening statement
which I am going to give you a copy of before you leave because
these weren't just rhetorical remarks. They were issues that we
need to have answered specifically. Would you be willing to go
through my opening statement and respond to them?
Mr. Agarwal. With pleasure, Congressman.
Mr. Conyers. Thank you.
Now, with regard to the Tim Griffin case in Florida in
which Members of the other body, Senators Whitehouse and
Kennedy, called for a Department of Justice investigation into
allegations that Tim Griffin in Florida, a former Republican
National Committee opposition researcher, and others at the RNC
may have engaged in caging during the 2004 elections. Are you
familiar with that matter? Or have you heard about it?
Mr. Agarwal. I have heard about it, yes.
Mr. Conyers. All right. Is there any indication or do you
have any information that there is a Department of Justice
investigation ongoing in that matter?
Mr. Agarwal. I am aware of no such ongoing investigation
within the civil rights or criminal divisions, Congressman. And
I should also mention that the Department recently sent a
letter to the Senate indicating that at least as of 2007 they
had not, the Department, had not been aware of those
allegations.
Mr. Conyers. All right. And the letter was sent to Senator
Kennedy and Senator Whitehouse?
Mr. Agarwal. I believe so, perhaps Senator Leahy, yes.
Mr. Conyers. So there has been nothing done about them, or
it looks like there won't be even an investigation.
Mr. Agarwal. Congressman, as I said during my opening
statement, the Department takes very seriously any allegations
that voters are being discriminated against on the basis of
their race. And I think we have an outstanding record of
bringing lawsuits where necessary to protect the rights of
minority voters.
Mr. Conyers. Well, yes, but that doesn't answer my
question. That is a wonderful statement on behalf of the
Department of Justice. But you are doing nothing in this case.
Well, I guess I have to interpret for you what you are saying
to me, is that because you are so concerned about this issue
and nothing was done, this must not have had any merit to
justify an investigation. Is that what you are telling me and
the way you talk in the Department of Justice?
Mr. Agarwal. Congressman, whether any particular factual
allegations raise an issue of a violation of Federal law
depends on all the facts and circumstances. If----
Mr. Conyers. Well, of course. I mean, how else could we
operate since the Department of Justice has been depoliticized?
But what has that got to do with what happened in this matter?
I am trying to find it out. Can we save a little time and you
get back to me on this matter, since I didn't get a letter, and
you are the first to tell me about it?
Mr. Agarwal. Congressman, we will be happy to take a look
at any allegations the congressman thinks raise a possible
violation of Federal law.
Mr. Conyers. Well, I want you to get back to me even if it
doesn't raise a violation of law. I am trying to find out what
happened to it, not what you think about it.
Mr. Agarwal. I will take that back to the Department,
Congressman.
Mr. Conyers. Okay, thank you very much. You know, I don't
get the sense of cooperation. And it may be my attitude and not
your attitude. But, you know, you can fine tune these responses
and shade them all you want, but we have got to get to the
bottom of this problem.
I understand that you are representing the Department, and
you have got to come here prepared to defend the Department. I
don't expect anything else. But you could save us a little time
because this isn't going to work anymore. I don't know where
you testify, probably a lot of places. But we have got to get
right down to the facts, sir. I would appreciate a little more
definitive response rather than us having to qualify, qualify,
qualify, if you can.
Mr. Agarwal. Absolutely, Congressman. With apologies, I did
join the division in 2006. But I will be happy to get the
information that I can for you.
Mr. Conyers. Okay. Well, I joined the Congress in 1965. But
nobody holds me responsible for everything that has happened
either before or since then. And I am not holding you
responsible to know about everything that happened before 2006,
not at all.
I would like now to turn to my good friend, Mike Pence,
from Indiana.
Mr. Pence. Thank you, Chairman.
And again, I would like to welcome our witness. And thank
you for your service to the country from 2006, before and
since.
A couple quick questions about the Department's view of the
Help America Vote Act, specifically here. My understanding--
Article 1, Section 4 of the Constitution delegates to the
States broad authority to regulate the conduct of Federal
elections. The Help America Vote Act passes Congress in 2002.
Is it the Department's judgment that that, in effect,
supplanted the preeminence of States in the administration of
elections? Or is it intended to supplement? What is the
Department's view?
Mr. Agarwal. Thank you, Congressman. The Help America Vote
Act sets a certain floor that States need to satisfy. For
example, they need to meet certain database requirements. They
have to comply with certain posting requirements for language
minorities. But States are free to enact other legislation.
Mr. Pence. Forgive me for interrupting. So it is very much
a floor that States are not invited necessarily, but certainly
under the Constitution are free to have additional requirements
on top of that basic floor?
Mr. Agarwal. That is absolutely correct, Congressman.
Mr. Pence. I want to get into what Indiana has done, but
also some of the Carter-Baker recommendations. But let me say
to begin with--and I think this is reflecting the tone on both
sides of this Committee. This is a very serious issue. I don't
take this at all lightly. I don't take the concerns of the
Chairman of the Subcommittee or the Chairman of this Committee
lightly at all.
I believe that the integrity of the vote is the integrity
of the democracy. And that happens one vote at a time.
So don't misunderstand what may be my parochial pride in
what Hoosiers are attempting to do as in any way diminishing
the dreadful seriousness we think about which you are charged
and this Department is charged. That being said, are you
familiar with the Carter-Baker commission and its
recommendations?
Mr. Agarwal. I am, Congressman.
Mr. Pence. Is it accurate that the Carter-Baker commission
convened after the 2004 presidential elections, which, of
course, were fraught with controversy on these topics, that
among those recommendations in post-Help America Voting Act
reforms was--and I am quoting now, that this bipartisan
commission suggested, ``To ensure that persons presenting
themselves at the polling place are the ones on the
registration list, the commission recommends that States
require voters to use the real I.D. card, which was mandated in
a law signed by the President in 2005''? Is it accurate to say
that bipartisan commission recommended photo identification
requirements at polling places?
Mr. Agarwal. That is certainly my understanding,
Congressman. And I would add that those recommendations were
also supported by former U.N. Ambassador Andrew Young.
Mr. Pence. Former U.N. Ambassador Andrew Young?
Mr. Agarwal. Correct, who had been U.N. ambassador under
President Carter.
Mr. Pence. Let me see if I can get an answer specifically.
Are you aware of any instance where the Justice Department has
been called upon to investigate allegations of a voter being
disenfranchised at the polling place as a function of a photo
identification law like Indiana's?
Mr. Agarwal. Congressman, that is an excellent question and
no court has found that a voter has been prevented from voting
because of a voter I.D. law.
Mr. Pence. Now, in the state of Indiana we have worked hard
to accommodate and to alleviate any hardship that a photo
identification--I am sure you are aware of our law, the brief
the Justice Department has filed. Indiana has made provision
for people who can't afford to pay for a photo I.D. We have
also given people who don't have a photo I.D. a chance to file
a provisional vote.
I think it is a week to 10 days that they can then come
back and present. And with regard to other States, do other
States do as Indiana has done and provide those kind of
accommodations to ensure that individuals are not
disenfranchised?
Mr. Agarwal. That is correct, Congressman, they do. I
believe that most States do have alternate procedures to vote
for voters who may lack photo identification.
Mr. Pence. And so, again, to go back, now, you said to me
no court has found that an American citizen entitled to vote
has been deprived of their franchise to vote by virtue of photo
identification laws like Indiana's. But let me ask you
specifically as my time runs out. Are you aware of any--is
there any complaint before or allegation before the Justice
Department to your knowledge today of an individual who says
that they were deprived of their right to vote because of a
photo identification law?
Mr. Agarwal. I am not aware of any such allegation that
would raise a--obviously the Department has limited
jurisdiction. I am not aware of any information that is
presented to the Department that would constitute a violation
of Federal law.
Mr. Pence. Okay.
Mr. Agarwal. So the answer is no.
Mr. Pence. Okay. Out of courtesy to my colleagues I will
yield back. I thank the Chairman.
Mr. Conyers. Thank you.
The Chair recognizes the distinguished gentlelady from
Florida, Debbie Wasserman Schultz.
Ms. Wasserman Schultz. Thank you, Mr. Chairman.
Welcome to the Committee. I have a couple of questions
related to the National Voter Registration Act and Section 7.
Because as you know, and we have been discussing that this
morning, that requires States to provide assistance to voters
in public agencies when they are there for other benefits to
register to vote.
And a study produced by ACORN and Project Vote called
Unequal Access: Neglecting the National Voter Registration Act
1995 to 2007 showed that voter registrations generated from
public assistance agencies nationwide have declined 79 percent
between 1995 and 2007 when the National Voter Registration Act
was first implemented in 2005 and 2006. Here are my concerns.
In your written statement you assert that since 2006 the
voting section filed lawsuits containing NVRA claims in
Indiana, Maine, New Jersey, Philadelphia, and Cibola County,
New Mexico. And it is my understanding that four of the five
lawsuits were filed, not to enhance voter registration
opportunities, but instead to force States to conduct massive
purges of their registration lists under Section 8 of the NVRA.
Is this correct?
Mr. Agarwal. Congresswoman, we have filed 10 lawsuits under
the NVRA during this Administration. Five of them included
allegations that States were improperly removing voters from
the polls. And two of them were under Section 7.
I should also add, if I could briefly, that in 2007 we sent
18 letters to different States regarding their compliance or
lack of compliance with Section 7 of the NVRA. And it is my
understanding that at least two of those States have already
begun the process of drafting legislation to bring them into
compliance.
Ms. Wasserman Schultz. Okay, but excuse me. The purpose of
Section 7 is not to ensure that States are purging voters, but
to ensure that they are registering voters. So why would half
the lawsuits that you filed deal with the purging of voters?
Mr. Agarwal. Well, Congresswoman, we filed two lawsuits
under Section 7 during this Administration. We are prosecuting
one of them. And in 2007 we sent out 18 letters----
Ms. Wasserman Schultz. But are you also pursuing States to
ensure that they purge voters that you don't believe belong on
the rolls?
Mr. Agarwal. We enforce all the provisions of the NVRA.
Ms. Wasserman Schultz. I realize that. But are you more
aggressively pursuing States to encourage them to purge voters
rather than pursuing Section 7, which ensures the registration
of voters? I would think that it would be more important for
the Department to be ensuring that we have more qualified
registered voters on the rolls as opposed to making sure that
we aggressively purge voters when much of that purging in
recent years has shown to be overly aggressive and purged
voters who were valid and belonged on the rolls.
Mr. Agarwal. Congresswoman, we are enforcing both Section 7
and Section 8.
Ms. Wasserman Schultz. I realize that. But are you more
aggressive--I mean, I think just looking at the percentage of
lawsuits that you are pursuing the numbers bear out. If you are
only pursuing two Section 7 lawsuits and the others relate to
purging of voters from the rolls, then I think one could
logically conclude that you are more aggressively going after
States to ensure that they purge. Is that the case?
Mr. Agarwal. With respect, Congresswoman, I would disagree
with that characterization because five of the eight Section 8
lawsuits that we have brought do include allegations that the
jurisdictions were improperly removing voters.
Ms. Wasserman Schultz. How do you explain the 79 percent
decrease in the number of registered voters that were added to
the rolls if you have been aggressively ensuring that Section 7
is enforced?
Mr. Agarwal. Congresswoman, I am aware of that study, and
that is part of the reason why we sent out 18 letters in 2007
to gather information regarding States----
Ms. Wasserman Schultz. Well, good, I am glad you raised
those 18 letters. When we are talking about the 18 States that
you did send letters to, that was just a few months ago on
August 30, 2007. You began that inquiry.
And you sent letters to Vermont, Alaska, Alabama, Arizona,
Connecticut, Hawaii, Iowa, Illinois, Massachusetts, Maine,
Michigan, Mississippi, Montana, Nebraska, New York,
Pennsylvania, Utah, and South Carolina. Now, Florida, Texas,
and Virginia also ranked in the bottom 10, and they did not
receive letters. So can you answer why you chose not to send
letters to Florida, Texas, and Virginia? And if not, then why
have you failed to take measures to ensure that all of,
including the worst offenders of Section 7 violations, were
included in your pursuit?
Mr. Agarwal. Congresswoman, with respect to the letter that
we sent out, we did not send out letters to every State because
we----
Ms. Wasserman Schultz. You sent out 18. Why not 21?
Mr. Agarwal. With respect to some States, Congresswoman, we
already had and continue to have substantial information, and
so, there is simply no need to send out letters.
Ms. Wasserman Schultz. Well, wait. Why not Florida, for
example? I am a little partial to Florida, as you might
imagine, where we specifically have had egregious violations of
purging voters from the rolls, the use of lists that were
inappropriately used, of felons who turned out not to be
felons. Why have you excluded Florida and not pursued Florida
and sent them a letter? We are in the bottom 10.
Mr. Agarwal. Congresswoman, I don't know the answer to
that. And with respect, it would be inappropriate for me to
comment on----
Ms. Wasserman Schultz. Mr. Chairman, if you could ask the
witness to answer that question specifically and include it in
the information that you asked and that the Chairman of the
Subcommittee asked for in the next 2 weeks. I would appreciate
it.
Mr. Conyers. You heard her request.
Mr. Agarwal. I will take that back to the Department. But I
should add that the Department cannot get into, you know,
disclosing our deliberative process in determining where we
are----
Ms. Wasserman Schultz. They can certainly tell us why they
chose to exclude one State that was in the bottom 10 and had
among the most egregious violations of Section 7. I don't think
that is something that you are not permitted to disclose.
Mr. Agarwal. I will be happy to take that back to the
Department, Congresswoman.
Ms. Wasserman Schultz. Thank you very much.
I yield back.
Mr. Conyers. Thank you very much.
The Chair recognizes the distinguished gentleman from
Minnesota, Keith Ellison.
Mr. Ellison. It wasn't too long ago that John Tanner was
here before us. And he had been reported as saying that while
it is a shame that elderly voters may be disenfranchised by new
voter I.D. restriction at the polls because many of them don't
have driver's licenses, minorities don't have to worry about
that because they die first. Do you remember that?
Mr. Agarwal. Yes, Congressman.
Mr. Ellison. Was he right?
Mr. Agarwal. Congressman, Mr. Tanner has apologized for
those comments.
Mr. Ellison. I didn't ask you whether he apologized. I
asked you whether he was right.
Mr. Agarwal. Congressman, Mr. Tanner has apologized for
those comments.
Mr. Ellison. Is he right? Is he right or not?
Mr. Agarwal. Congressman, Mr. Tanner has apologized for
those comments.
Mr. Ellison. I heard that answer. I am asking you whether
he is right. Are you declining to answer?
Mr. Agarwal. He has stepped down----
Mr. Ellison. I want to ask you if you are refusing to
answer my question.
Mr. Agarwal. Congressman, Mr. Tanner----
Mr. Ellison. Are you refusing to answer my question?
Mr. Agarwal. Congressman----
Mr. Ellison. Well, then answer it.
Mr. Agarwal. Congressman, Mr. Tanner has apologized for
those comments.
Mr. Ellison. I heard you say that.
Mr. Agarwal. He has stepped down from his leadership role
at the Department.
Mr. Ellison. I heard you say that. Was he right?
Mr. Agarwal. Congressman, I am not here to throw dirt on
John Tanner. He was a dedicated----
Mr. Ellison. Well, let me ask you this. Let me ask you this
question because I am not asking you about whether he is
dedicated or not. I am asking you whether he was right. But you
don't want to answer. So let me ask you this. When he said that
seniors, older voters, senior citizens will be disenfranchised
by new photo I.D. restrictions at the polls, was he right about
that?
Mr. Agarwal. Congressman, I can tell you what courts have
found on that point.
Mr. Ellison. I want to ask you if he was right or not. Are
you familiar with the Wisconsin study that was done in June of
2005, the University of Wisconsin?
Mr. Agarwal. I am not sure that I am, Congressman.
Mr. Ellison. Okay. Well, there was a study out there. And
you are the deputy of the voting rights section, right?
Mr. Agarwal. I am a deputy assistant attorney general.
Mr. Ellison. Right, right. And I would assume that since
you know all about other studies, that you had read the
literature out there. Are you telling me that you are not
familiar with the June 2005 University of Wisconsin study on
the impact of photographic identifications on voters?
Mr. Agarwal. Congressman, there are a lot of studies out
there.
Mr. Ellison. You don't know about that one?
Mr. Agarwal. There are a lot of studies out there,
Congressman.
Mr. Ellison. Just tell me whether you know about it or not.
State yes or no.
Mr. Agarwal. Not offhand, I do not know about the study you
are talking about.
Mr. Ellison. Okay. Well, I did. I read that study. And I
read the one you talked about as well. And in the University of
Wisconsin study it estimated that 23 percent of the people aged
65 and over did not have a photo I.D. Do you dispute that? No,
because you didn't read the study. Good point.
Less than half of the Milwaukee county's African-American
and Hispanic adults did not have a valid driver's license or
photo identification compared to 85 percent of their White
counterparts who did. Are you familiar with that finding?
Mr. Agarwal. But Congressman, it is interesting----
Mr. Ellison. Are you familiar with that study or not? Are
you familiar with that finding?
Mr. Agarwal. There have been a lot of findings made by a
lot of studies.
Mr. Ellison. I am asking you about this finding. Just say
yes or no. Why can't----
Mr. Agarwal. I am not familiar with that particular study.
Mr. Ellison [continuing]. You--thank you. So that would be
no. All right. Are you familiar with the other finding that
stated that for young minority adults ages 18 to 24 about 26
percent of the African-American youth and 34 percent of the
Hispanic youth had a valid driver's license compared to 71
percent of their White counterparts who did? I guess you don't
know about that one, either?
Mr. Agarwal. Congressman, I am familiar with a lot of
studies. I can tell you what courts have found with respect----
Mr. Ellison. There is no question in front of you right
now, sir. I am going to ask you to wait until I get my question
ready. You know, let us just talk about Indiana for a moment.
Now, I wrote an amicus brief opposing the Indiana statute
because it is unconstitutional. Are you familiar with the 24th
Amendment?
Mr. Agarwal. I believe so.
Mr. Ellison. There are a lot of those, too. Do you know
that one?
Mr. Agarwal. I am familiar with the Constitution,
Congressman.
Mr. Ellison. What does it say? What does it say? What does
the 24th Amendment say?
Mr. Agarwal. It is the poll tax amendment.
Mr. Ellison. Good. Right answer. And doesn't it say that to
impose a financial barrier to voting is unconstitutional?
Mr. Agarwal. I don't have the language in front of me, but
that is the gist of it, correct.
Mr. Ellison. Right. And to acquire a photographic I.D.
would require some money, right?
Mr. Agarwal. Well, in Indiana the State provides for----
Mr. Ellison. How much does it cost? How much does I.D. cost
in Indiana?
Mr. Agarwal. Well, the State does have provisions for free
photo I.D.
Mr. Ellison. I am not asking you about that. I am asking
how much an I.D. costs in Indiana.
Mr. Agarwal. Well, I don't know the answer to that. But I
do know that Indiana provides for a free photo I.D.
Mr. Ellison. Okay. What do you have to do to get a free
I.D.? Do you have to state your economic status to get a free
I.D.? Do you have to state your economic status to get a free
I.D. in Indiana?
Mr. Agarwal. There is an----
Mr. Ellison. You are the deputy attorney general. You
should know this. Do you have to state your--under oath state
your economic status to get a free I.D.?
Mr. Agarwal. There is an indigency exception under Indiana
law. I am not familiar----
Mr. Ellison. And do you have to state your income to apply
under that exception?
Mr. Agarwal. I am not familiar with all of their
requirements of the indigency exception.
Mr. Ellison. Well, I am, and you do. As a matter of fact,
the 24th Amendment says that economic status cannot be a
barrier to the ballot box. And to have to swear that you are
poor to get a free I.D. is requiring that you--is making income
a barrier to the ballot box.
The Indiana law is a flagrant violation of the law. And I
look forward to it being struck down as unconstitutional.
Mr. Conyers. The Chairman of the Crime Subcommittee on
Judiciary, Mr. Bobby Scott.
Mr. Scott. Thank you very much.
I just had a couple of questions and just wanted to ask the
witness' position on what the Department's position is when you
find that there has been a campaign to intentionally mislead
voters as to their eligibility, their right to vote, the
location of the polling place or otherwise misleading people
into possibly missing their opportunity to vote. What is the
Department's position on that?
Mr. Agarwal. If there were credible allegations of that, we
will absolutely look into them. It could very well be a
violation of either Section 2 of the Voting Rights Act or,
depending on the specific facts and circumstances, possibly
Federal criminal law as well.
Mr. Scott. And so, if people are passing literature
suggesting the wrong date for the election or the polling place
has been moved when it, in fact, hasn't or something like that,
that could be a criminal violation?
Mr. Agarwal. That is correct, Congressman.
Mr. Scott. And do you prosecute such activities?
Mr. Agarwal. We certainly have the ability to do so, and we
certainly would look into those types of allegations.
Mr. Scott. And any allegation has been brought to the
attention of the Civil Rights Division, to your knowledge,
since you have been there?
Mr. Agarwal. We have been looking into allegations
regarding events that occurred during the 2006 mid-term
elections. For example, in Orange County some information was
sent primarily to minority voters. We immediately contacted the
State and local officials, have been working with them. And
currently our criminal section within the Civil Rights Division
is looking at that matter.
Mr. Scott. And so, if there are other examples of that that
are brought to your attention we can count on the division, the
Civil Rights Division to follow through both civilly and
criminally?
Mr. Agarwal. Absolutely, we will take a look at it.
Mr. Scott. If appropriate?
Mr. Agarwal. Absolutely.
Mr. Scott. Voter caging--what is the Civil Rights
Division's position on voter caging?
Mr. Agarwal. Well, again, as I tried to explain earlier,
whether a specific set of facts raises a violation of Federal
law will depend on all the facts and circumstances. It is not
illegal simply to challenge voters, out from any other facts.
If there is evidence that the voters are being targeted because
of their race, that could potentially raise issues about
violation of Section 2.
Mr. Scott. Is additional legislation appropriate to clarify
that so that there is no question that a campaign targeting
people because of their race for challenges would be illegal?
Mr. Agarwal. And if any legislation is submitted, the
Department will certainly be happy to take a look at it.
Mr. Scott. Does the Civil Rights Division have a position
on these computer voting machines where you cannot get a
recount?
Mr. Agarwal. Congressman, with respect to the issue of
election equipment, it is one that is primarily handled by the
election assistance commission. We have a very narrow piece of
that pie in ensuring under HAVA that election equipment is
accessible to voters with disabilities.
Mr. Scott. If it were ascertained that the equipment had
discriminatory impact, that is that there are a lot more
mistakes or under-voting in certain communities than others,
would not that have a civil rights implication?
Mr. Agarwal. Potentially. And if there are such
allegations, again, we would be happy to take a look at them.
Mr. Scott. Are you familiar with the report produced by the
Asian-American Legal Defense and Education Fund entitled,
``Asian-American Access to Democracy and the 2006 Elections''?
Mr. Agarwal. I believe that I have seen that, yes.
Mr. Scott. They allege excessive inquiries for voter
identification for Asian-Americans that others were not
subjected to. If those could be sustained, what would the Civil
Rights Division's response be?
Mr. Agarwal. We would absolutely take a look at bringing a
lawsuit under Section 2 and/or Section 203 of the Voting Rights
Act. But we have done so in many instances already. We filed 27
lawsuits under the language minority provisions of the Voting
Rights Act. That is more than 60 percent of language minority
lawsuits ever brought under the Voting Rights Act.
I can give you a concrete example, if you like. In
Hamtramck, Michigan, Bangladeshi and Arab-American voters were
singled out and had their right to vote challenged. A consent
decree was entered into. We extended that consent decree during
this Administration. And as a result of our consent decree, the
poll workers in the state of Michigan now have to train poll
workers to prevent that sort of thing from happening.
Mr. Scott. My time has expired. Are you following through
on the allegations in the report?
Mr. Agarwal. Absolutely, we are.
Mr. Scott. Okay.
Mr. Chairman, I would ask unanimous consent that the report
that I have just referred to be made part of the record.
Mr. Nadler. [Presiding.] Without objection.
[The information referred to follows:]
Mr. Scott. Thank you.
Mr. Nadler. The gentleman's time is expired. I now
recognize the gentleman from North Carolina for 5 minutes.
Mr. Watt. Thank you, Mr. Chairman.
It is quite apparent that we are not getting many straight
answers here. So I am going to try to just close this out with
some softball questions since you are not going to answer any
hard questions today. It is quite obvious.
I have been sitting here the whole time, and it is always
that happened before I got to the Department, or I will take
that back to the Department, or I will take that under
advisement. But getting a straight answer out of you is about
as difficult as it is getting one out of the Secretary of
Housing and Urban Development when he comes before the
Financial Services Committee.
Can you just give me a 1-minute summary of the arguments on
the constitutionality of the Voting Rights Act extension, what
position the Department is taking and what position the other
side is taking?
Mr. Agarwal. Sure. The arguments that were raised by the
plaintiffs are that the Voting Rights Act as reauthorized in
2006 is no longer congruent and proportional to the harm that
it was designed to address, namely, racial discrimination. And
the arguments are that there are fewer Section 5 objections
interposed today than the recent past than there were in the
immediate aftermath of 1965 and the 1982 objections. Our brief
and argument focused very--spent a lot of time focusing on the
evidence of continued racial discrimination.
Mr. Watt. Okay. That was a pretty direct answer. I
appreciate that. Softball question.
Can you tell me how many folks in the last 8 years that you
all have been pursuing more aggressively are voter fraud cases?
How many people have been found guilty of voter fraud?
Mr. Agarwal. My understanding from the criminal division is
that number is 86.
Mr. Watt. Eighty-six. And so, all of this emphasis that we
have placed on keeping people from voting who should not be
voting nationwide has yielded 86 cases of voter fraud?
Mr. Agarwal. That is correct, Congressman. I would add
that----
Mr. Watt. That is not a trick question. I am just
summarizing what you said. Would it be fair to say that this
Department in this Administration has put more emphasis on
catching people who might be trying to vote, although they are
not qualified to vote, than they put on trying to enhance the
ability of people who would really like to vote, who for one
reason or another have been prevented from voting?
Mr. Agarwal. I would disagree with that characterization,
Congressman. I think under Attorney General Ashcroft he sought
to increase Federal enforcement of all the election laws, both
on the civil rights side and on the criminal side.
Mr. Watt. Okay. All right. I guess I would expect you to
say that, but I don't think the numbers really support what you
are saying. And certainly, the sense in communities around the
country is that the Department has been much, much more
obsessed with trying to stop people from voting who are not
eligible to vote than they are trying to enhance the ability of
people to vote who are eligible to vote, which was the original
and historic purpose of the Voting Rights Act.
But I suppose if that is your emphasis, that is your
emphasis. And so, we can go on. I am the last person to ask
questions here. So we can go on to a more balanced picture of
that. But I appreciate you coming and testifying.
Mr. Agarwal. Thank you, Congressman.
Mr. Nadler. Thank you.
And I thank the witness. That is the conclusion of our
questions in panel one. I thank the witness, Mr. Agarwal.
And I would ask that our second panel now join us. To save
time, while we are switching panels, I will read the
introductions, which I would normally do when everybody has
gotten their seats. But I will do it now.
The first witness for our second panel is Gerald Hebert,
executive director and director of litigation at the Campaign
Legal Center, a nonpartisan organization that focuses on
campaign finance and voting rights. For nearly 20 years Mr.
Hebert served in many capacities at the Justice Department's
voting section, including as acting chief, deputy chief and
special litigation counsel.
Mr. Hebert also has his own private practice where he
specializes in voting rights and redistricting. Mr. Hebert is
an adjunct professor at Georgetown Law School.
Our second witness is Hilary Shelton, director of the
Washington Bureau of the NAACP. In that capacity Mr. Shelton
advocates for the organization's Federal public policy agenda,
including voting rights protection. Prior to his position at
the NAACP, Mr. Shelton served in the Government Affairs
Department of the United Negro College Fund and the Social
Justice Agency of the United Methodist Church.
Our third witness, we hope--I don't see him here. But our
third witness is supposed to--is coming, we hope--is Minnesota
State Representative Tom Emmer. Mr. Emmer was first elected to
that office in 2004 and currently serves as the deputy minority
leader in the Minnesota State House.
Our final witness this morning is Lorriane Minnite,
assistant professor of political science at Barnard College
where she has taught American and urban politics since 2000.
Prior to teaching at Barnard, Dr. Minnite served as the
associate director for the Center for Urban Research at
Columbia University School of International and Public Affairs.
She has also conducted extensive research into issues of
equality, social and racial justice, political participation
and voting behavior, to name only a few. She is currently
working on a book on the politics of electoral rules called,
``The Myth of Voter Fraud,'' which is a subject of some
relevance to our hearing today.
Before we begin--and I see all of our witnesses are here--
it is customary for the Committee to swear in its witnesses. If
you would all please stand and raise your right hands to take
the oath.
Do you swear or affirm under penalty of perjury that the
testimony you are about to give is true and correct to the best
of your knowledge, information, and belief?
ALL: I do.
Mr. Nadler. Thank you. Let the record reflect that the
witnesses answered in the affirmative. You may be seated.
As a reminder, your written statements will be made part of
the record in its entirety. I would ask that each of you now
summarize your testimony in 5 minutes or less. To help you stay
within that time, there is a timing light at your table. When 1
minute remains, the light will switch from green to yellow and
then to red when the 5 minutes are up.
Our first witness is Mr. Hebert.
TESTIMONY OF J. GERALD HEBERT, EXECUTIVE DIRECTOR AND DIRECTOR
OF LITIGATION, CAMPAIGN LEGAL CENTER
Mr. Hebert. Thank you, Mr. Chairman, for the opportunity to
testify this morning.
Mr. Franks, Ranking Member, good morning to you as well.
I am going to talk about two issues in particular today.
The first is vote caging and how it has been used to suppress
minority votes. And second I am going to talk about the Justice
Department----
Mr. Nadler. Yes, would you turn your microphone on or speak
into it, one or the other?
Mr. Hebert. And second I am going to talk about the Justice
Department's failure to enforce many of the provisions, not
only of the Voting Rights Act, but other Federal statutes that
should be designed to protect the right to vote.
Mr. Nadler. That is better.
Mr. Hebert. Vote caging in this context involves sending
out non-forwardable or registered mail to targeted groups of
voters and compiling caging lists of voters for those whose
mail is unable to be delivered. And although the NVRA prohibits
election officials from cancelling voter registration merely
because a piece of mail has been returned, political
operatives, primarily in the GOP, have used these types of
tactics and lists called caging lists for many years.
They have been enjoined time and time again by Federal
courts in caging operations that have challenged thousands of
minority and urban voters nationwide on the basis of returned
mail. To bring these types of schemes to an end will require
vigorous prosecution by the Justice Department. But this
Justice Department's priorities have shifted over the years.
And I ought to know because I spent 21 years there, and I was
the acting chief of the voting rights section for a number of
them.
The current Administration has not only ignored voting
caging schemes, but has actively worked--as I think the
Chairman pointed out--in Ohio to actually give vote caging
schemes a boost in the Federal courts by actually defending
them in Ohio. Now, I know that I have limited time today, so I
am going to talk in particular about a couple of things I think
Mr. Watt and perhaps Mr. Scott and Mr. Ellison asked questions
about, what the Justice Department has done in trying to get a
straight answer about are there any voting caging schemes under
investigation right now.
And, you know, Mr. Agarwal's testimony this morning is that
he wasn't aware, as I recall, what he said of a single instance
or an investigation even being conducted. So how could they
even possibly know at the Justice Department if there has been
any illegality in these voting schemes if they haven't done any
investigations of them? I mean, that is just basic law
enforcement 101.
With regard to vote caging schemes, I personally have
written letters to the Justice Department bringing to their
attention instances in which minority voters have been targeted
by political operatives. And we don't know who. They could be
Democrats. They could be Republicans.
But Black voters in Dallas, TX, in 2006 after Mr. Agarwal
joined the Justice Department received a letter that said, ``If
you were registered by ACORN, they are a fraudulent
organization. And if you try to vote, you will be prosecuted
and arrested at the poll.'' The Justice Department hasn't even
investigated that matter, even though it was brought to their
attention.
And there are other examples that I could get to along
those same lines. And to suggest that the Justice Department
didn't know about the Tim Griffin vote caging scheme--they must
have had their head in the sand because everybody knew about
that. It was reported on the BBC years ago. And there is a book
out about it. So it is just incredulous for somebody to assert
that.
With regard to the Department's enforcement of basic laws
that are supposed to expand the right to vote, look at the
NVRA. The NVRA motor voter bill was enacted primarily to get
more people, to make it easier for people to register to vote.
Its primary purpose wasn't to purge voting lists.
But what the Department of Justice has done--and Mr.
Agarwal again says, ``Since 2006 we have filed five cases to
enforce the NRVA.'' Well, four of them have been to purge
people, and one of them have been to increase voter
registration for people who are receiving public benefits. And
that actually takes the law and turns it on its head.
The final thing I would like to say is that the issue of
voter I.D. Now, I filed an amicus brief in the Indiana case
attacking the voter I.D. on behalf of 29 scholars and
historians across the country who said that basically a lot of
good government reforms, which is what I think a voter I.D.
bill is--and by the way, let us just call it like it is. The
Justice Department was not asked to file a brief in the Indiana
voter I.D. case. The most divisive issue of our time in the
area of voting rights right now is voter I.D. And the Bush
administration politically jumped into that case.
Sure, they have an interest in Federal voting rights. But
they didn't have to do it. And they certainly could have
presented a more balanced argument for it.
But the fact is--and I will close with this--you have a
better chance of being struck by lightening than you do finding
a person impersonating another at the poll. And a photo I.D.
isn't going to correct that one bit. You talk to any law
enforcement officer, and they will tell you the technology is
out there to make fake I.D.s as easy as the real ones.
Thank you, Mr. Chairman. And I will look forward to any
questions that come later.
[The prepared statement of Mr. Hebert follows:]
Prepared Statement of J. Gerald Hebert
Mr. Nadler. Thank you.
Mr. Shelton is recognized for 5 minutes.
TESTIMONY OF HILARY SHELTON, DIRECTOR,
WASHINGTON BUREAU OF THE NAACP
Mr. Shelton. Thank you very much, Mr. Chairman. And good
morning. As you mentioned, my name is Hilary Shelton. And I am
director of the NAACP's Washington bureau. The NAACP currently
has more than 2,200 membership units with members in every
State across the union.
I would like to begin by thanking the Chairman, Chairman
Conyers, many other Members of the Committee for holding this
hearing today. The right to vote is clearly the cornerstone of
our Nation's democracy.
Throughout our Nation the NAACP and countless Americans
have fought and died to protect the right of people across the
globe to cast a free and unfettered ballot and to have that
vote counted. We owe it to these men and women and their
families to ensure that the right to vote is protected here at
home.
Sadly, our struggle is not yet complete as there are still
voter suppression throughout the United States. What is even
more disturbing than the continued existence of the Americans
being denied the constitutional right to vote, however, is the
fact that for the last 8 years the U.S. Department of Justice
has not been our partner in trying to stem voter suppression.
In fact, given the fact that the U.S. Department of Justice
filed an amicus brief in the case of Crawford v. Marion,
Indiana County Election Board, which the Supreme Court heard
just last month, many would argue that the current
Administration is actually working against the goals of all
Americans enjoying their constitutional right to vote.
And as any major national civil rights organization can
tell you, the number of voter suppression cases brought by the
current Department of Justice does not even begin to reflect
the number of complaints that we receive from the folks across
the Nation who believe their rights have been violated. In
fact, although the number of voting rights violations is very
difficult to measure, the NAACP as well as representatives from
almost every civil rights voting rights organization all report
an increase in the number of Americans, primarily racial and
ethnic minority Americans, who say they have been denied their
constitutional right to register and cast their votes.
Furthermore, attempts to pass laws at the State and local
levels as well as at the Federal level that restrict or
effectively shut out entire segments of the population are on
the increase throughout the Nation. And they are not being
challenged by the current Administration.
Specifically, the NAACP has seen a dramatic increase in the
number of cases in which people have registered to vote
believing having been told that they have then done everything
correctly only to be turned away from the voting booth on
election day and being told that they are not on the rolls. We
know that the 2000 election in Florida debacle did over-
zealously purge from the rolls especially in neighborhoods with
heavy concentrations of racial and ethnic minorities can be a
standard trick by unscrupulous or corrupt election officials
trying to suppress a certain segment of the voting public.
Now it appears that not even putting these people on the
rolls is the new popular tactic. Another tactic that is being
used to keep racial and ethnic minority voters and low-income
voters out of the ballot box is the enactment by legislatures
and governors sworn to protect the rights of all their
residents of laws to require government-issue photo
identification documents before voting.
While supporters of these initiatives purport to be
combating voter fraud, a problem which as numerous studies have
shown is not really a problem, what these laws are, in fact,
doing is creating a barrier to keep out up to 20 million
Americans who do not have government-issued photo I.D.s out of
the ballot booth. And I would hasten to add that a
disproportionate number of these people who do not have
government-issued I.D.s are racial, are ethnic minorities, are
low-income Americans.
Finally, I would like to talk for just a brief moment about
an issue that the NAACP was intimately involved in crafting.
That is the 2002 Help America Vote Act. This legislation, which
was enacted in response to the election debacle of 2000, has
been under-funded and under-supported since its enactment at
almost every turn. While the NAACP and other civil rights
organizations strongly supported HAVA in part because it was
seen as a sign that the Federal Government took voting rights
protection seriously, the fact that it has been largely ignored
is discouraging, to say the least.
To close, I would like to share with the Subcommittee some
thoughts shared by the NAACP and the Mexican-American Legal
Defense and Education Fund, that is MALDEF, one of the premier
civil rights organizations investigating and protecting the
rights--invested in protecting the rights of Latino voters.
Racial and ethnic minority voters require that the civil
rights Department of the U.S. Department of Justice be fully
staffed with well-qualified attorneys and experts who are
committed to addressing voter suppression and protecting
minority voter rights. While the NAACP and MALDEF and other
civil rights organizations frequently bring legal actions on
behalf of racial and ethnic minorities whose voting rights have
been infringed, private individuals and organizations lack
sufficient resources to guarantee free and fair elections for
all voters nationwide.
Mr. Chairman, Members of the Subcommittee, the
disenfranchisement of voters, voters who are disproportionately
racial and ethnic minority Americans, due to the mismanagement
of registration bases and the restrictive laws and regulations
that are akin to discriminatory poll taxes present a much
larger threat to our national fabric than the many so-called
threats that we have been spending untold billions of dollars
defeating.
Unless Americans, all Americans, feel that they are vested
in our Nation and that they have a voice in their government,
the promise and security of democracy is hollow and left
unfulfilled.
Furthermore, I would argue that the inaction of the U.S.
Department of Justice's department of civil rights to address
voter suppression is not only unethical, immoral, and
counterproductive, it is flat out wrong. Thus, I again thank
the Subcommittee for holding this hearing and inviting the
NAACP to testify. And I look forward to your questions.
[The prepared statement of Mr. Shelton follows:]
Prepared Statement of Hilary O. Shelton
Good morning. My name is Hilary Shelton and I am the Director of
the Washington Bureau of the NAACP, our Nation's oldest, largest and
most widely-recognized grassroots civil rights organization in the
United States. The NAACP's Washington Bureau is the legislative and
public policy arm of the NAACP. We currently have more than 2,200
membership units with members in every state across the country.
I would like to begin by thanking and commending the Subcommittee
for holding this hearing. The right to vote is the cornerstone of our
Nation's democracy. Throughout our history, countless Americans have
fought and died to protect the right of people across the globe to cast
a free and unfettered ballot and to have that vote counted. We owe it
to these men and women and their families to ensure that the right to
vote is protected here at home.
The NAACP has been in existence for almost 100 years, and since our
inception we have fought for equal voting rights for all Americans.
Sadly, our struggle is not yet complete as there is still voter
suppression throughout the United States.
What is even more disturbing than the continued existence of
Americans being denied their Constitutional right to vote however, is
the fact that for the last eight years the U.S. Department of Justice
has not been our partner is trying to stem voter suppression.
In fact, given the fact that the US Department of Justice filed an
amicus brief in the case of Crawford v. Marion County Election Board,
which the Supreme Court heard just last month, many would argue that
the current Administration is actually working against the goal of all
Americans enjoying their Constitutional right to vote.
And as any major, national civil rights organization can tell you,
the number of voter suppression cases brought by the current Department
of Justice does not even begin to reflect the number of complaints that
we receive from folks across the Nation who feel their rights have been
violated.
In fact, although the number of voting rights violations is very
difficult to measure, the NAACP, as well as representatives from almost
every other civil and voting rights organization, all report an
increase in the number of Americans--primarily racial and ethnic
minority Americans--who say that they have been denied their
Constitutional right to register and vote.
Furthermore, attempts to pass laws at the state and local levels,
as well as at the federal level that restrict or effectively shut out
entire segments of the population are on the increase throughout the
Nation--and they are not being challenged by the current
Administration.
Specifically, the NAACP has seen a dramatic increase in the number
of cases in which people have registered to vote, believing or having
been told that they have done everything correctly, only to be turned
away from the voting booth on Election Day and being told that they are
not on the rolls.
We know from the 2000 Florida election debacle that over-zealous
purging of the rolls, especially in neighborhoods with heavy
concentrations of racial and ethnic minorities, can be a standard trick
by unscrupulous or corrupt election officials trying to suppress a
certain segment of the voting public. Now it appears that not even
putting these people on the rolls is the new popular tactic.
Another tactic being used to keep racial and ethnic minority voters
and low-income voters out of the ballot box is the enactment, by
legislatures and governors sworn to protect the rights of all of their
residents, of laws to require government-issued photo identification
documents before voting.
While supporters of these initiatives purport to be combating
``voter fraud,'' (a ``problem'' which, as numerous studies have shown,
is not really a problem), what these laws are in fact doing is creating
a barrier to keep the up to 20 million Americans who do not have
government-issued photo IDs out of the ballot booth. And I would hasten
to add that a disproportionate number of these people who do not have
government-issued IDs are racial or ethnic minorities or low-income
Americans.
Finally, I would like to talk for a brief moment about an issue
that the NAACP was intimately involved in crafting, the 2002 Help
America Vote Act (HAVA). This legislation, which was enacted in
response to the election debacle of 2000, has been under-funded and
under-supported since its enactment at almost every turn.
While the NAACP and other civil rights organizations strongly
supported HAVA in part because it was seen as a sign that the federal
government took voting rights protections seriously, the fact that it
has been largely ignored is discouraging, to say the least.
To close, I would like to share with the subcommittee some thoughts
shared by the NAACP and the Mexican American Legal Defense and
Education Fund, MALDEF, one of the premier organizations invested in
protecting the rights of Latino voters. Racial and ethnic minority
voters require that the Civil Rights Department of the U.S. Department
of Justice be fully staffed with well-qualified attorneys and experts
who are committed to addressing voter suppression and protecting
minority voters' rights.
While the NAACP, MALDEF and other civil rights organizations
frequently bring legal actions on behalf of racial or ethnic minorities
whose voting rights have been infringed, private individuals and
organizations lack sufficient resources to guarantee free and fair
elections for all voters nationwide.
Mr. Chairman, members of the subcommittee, the disenfranchisement
of voters, voters who are disproportionately racial or ethnic minority
Americans due to the mismanagement of registration bases, and
restrictive laws and regulations that are akin to discriminatory poll
taxes presents a much larger threat to our national fabric than many of
the so-called ``threats'' that we have been spending untold billions of
dollars defeating.y
Unless Americans, all Americans, feel that they are vested in our
Nation and that they have a voice in their government, the promise and
security of democracy is hallow and left unfilled.
Furthermore, I would argue that the inaction of the US Department
of Justice's Department of Civil Rights to address voter suppression is
not only unethical, immoral and counter-productive, it is just flat-out
wrong. Thus I again thank the subcommittee for holding this hearing and
for inviting the NAACP to testify.
Mr. Nadler. I now recognize Mr. Emmer for 5 minutes.
TESTIMONY OF TOM EMMER, DEPUTY MINORITY LEADER, MINNESOTA STATE
HOUSE OF REPRESENTATIVES
Mr. Emmer. Thank you, Mr. Chairman, Ranking Member Franks.
Thank you for the invitation here today. My name is Tom Emmer,
and I am a State representative from the state of Minnesota.
The United States Congress has enacted numerous
requirements, including registration and identification
requirements designed to increase the number of citizens who
register to vote while simultaneously protecting the integrity
of the electoral process. Some of these initiatives include the
Help America Vote Act of 2002, which requires voters to provide
proof of identification before registering or casting their
first ballot, providing the attorney general with the authority
to prosecute voter fraud in Federal elections, requiring
acceptable forms of identification under the Help America Vote
Act, including a current and valid photo identification or a
current utility bill, bank statement, government check,
paycheck, or a government document that shows the name of the
voter.
The Help America Vote Act also provides that States may
provide more strict rules and regulations regarding voter
identification. Since the enactment of this act, several
States, including some well-publicized cases and challenges in
Georgia and Indiana, have proposed voter identification bills.
The bills were specifically designed to require photo
identification.
In a world in which we have much turmoil and such contested
elections, it is imperative to maintain the integrity of the
electoral process and thus, the public confidence in that
process. Voters want to know that their vote counts and will
not be canceled out by a fraudulent vote. We simply must have
something in law that allows us to confirm that we are who we
say we are on the day of the election.
The American public agrees with this concept. In fact,
national polling shows that almost 80 percent of American
citizens agree that photo identification should be required to
verify identify prior to voting.
Voter identification laws are designed to prevent voter
fraud in our elections. There is no question that we have a
problem with fraud.
The Carter-Baker commission made such a determination in
its 2004 report. In addition, there are numerous examples from
other States that demonstrate how fraud has played a role in
elections. We as elected officials are slowly realizing the
destructive force this has on public confidence in the strength
of their vote and the outcome of the election.
In 2004, for example, the Indiana Supreme Court in the case
of Pabey v. Pastrick found that widespread fraud had rendered
election results ``inherently deceptive and unreliable.'' The
Indiana Supreme Court invalidated a 2003 East Chicago mayoral
primary based on evidence of rampant absentee voter fraud,
which included the use of a vacant lot or former address in
casting of ballots by nonresidents.
At the same time, the state of Indiana was experiencing
highly inflated voter registration rolls as a result of 35,000
deceased individuals remaining on statewide voter rolls.
Incredibly, the list of registered voters in 2004 was actually
inflated by some 41 percent, including well over 200,000
duplicate voter registrations.
In fact, on April 7, 2005, the United States Department of
Justice informed the Indiana secretary of state that numerous
counties had registration totals that exceeded their voting age
population. This is an important national issue. It is not a
political issue and should not be.
Despite efforts to the contrary, some people are selecting
to turn photo identification into a political issue that
destroys the very nature of election integrity. Protecting the
integrity of our elections and ensuring the validity of the
votes cast and the electoral process is important to all of our
children and communities, is important to the future of our
freedom and our democracy.
Those that are challenging these laws that voter photo
identification somehow violates the 1st and 14th Amendment to
the United States Constitution because it imposes an
unwarranted burden on the right to vote. In fact, they take
this position despite their inability to identify any concrete
harm stemming from a potential photo identification voter law.
In fact, despite the predictions of widespread
disenfranchisement resulting from the photo I.D. regulation in
Georgia, no plaintiff in any Georgia litigation, either as an
individual or as an organization demonstrated any injury.
The fact is that despite apocalyptic assertions of
wholesale voter disenfranchisement, there is not a single piece
of evidence of any identifiable registered voter who would be
prevented from voting. It is commonplace in virtually every
polling place in America that voters are asked to identify
themselves before they vote.
A State's interest in deterring voter fraud before it
happens is important. As the 7th Circuit Court of Appeals has
recognized, in-person voter fraud is extremely difficult to
detect. Without a photo I.D. requirement for in-person voting,
it is nearly impossible to catch an imposter.
As the pre and post-voter I.D. study and analysis has
established in Indiana after the implementation of the Indiana
voter I.D. law, there was an overall county level turnout
increase of almost 2 percentage points. There was an increase
in relative turnout for counties with a greater percentage of
minority and poor populations. There was no significant impact
on turnout in counties with a greater percentage of less
educated or elderly voters. And as has been previously been
noted today, there was a significant increase in turnout of
Democrats.
Thank you for inviting me, again, here today. And I hope
that this Committee will give serious consideration to what
should not be a political issue. And that is proving who we are
when we step up to the polling place.
[The prepared statement of Mr. Emmer follows:]
Prepared Statement of Tom Emmer
Mr. Nadler. Thank you.
Professor Minnite is recognized for 5 minutes.
TESTIMONY OF LORRAINE C. MINNITE, Ph.D.,
ASSISTANT PROFESSOR, BARNARD COLLEGE
Ms. Minnite. Thank you, Chairman Nadler.
And thank the Members of the Committee for inviting me to
testify today. I have submitted a written testimony that
explains in a lot of detail the research that I have been doing
over the last several years on this question of voter fraud.
And I would like to just take the few minutes that I have here
to highlight a couple of points.
One is the purpose of this research. As a political
scientist, we study voting behavior. And the prevailing
theories of voting suggest that, in fact, it may not even be
rational to vote, let along to vote twice. So when the rhetoric
of fraud really got ramped up after the 2000 election, I
thought it was an interesting puzzle.
On the one hand, we were hearing lots and lots of stories
of all kinds of fraud, of the system being very vulnerable to
fraud, of there being an epidemic of voter fraud. And at the
same time, the academic side, I had colleagues looking at me
and asking why are you studying this. There is very little
academic research on it. And, in fact, it doesn't make sense.
The incentives have to be huge for an individual voter to
commit fraud. In the absence of a conspiracy, there is no
rationale for a voter to take the effort to commit a felony
crime to vote twice or to vote in the name of someone else. So
it was an interesting puzzle. That is how I approached it.
And I began by trying to look at the empirical record. And
I want to address what I think are some mischaracterizations
and misunderstandings about what that record shows. I want to
focus specifically on the Federal Government's effort here to
root out voter fraud.
We heard the number 86 people. The research that I have
been able to do--and it has been quite difficult actually to
get the data from the Justice Department. But the research that
I have done to look at the success of the ballot access and
voting integrity initiative which the Justice Department began
in 2001, 2002 shows that between October 2002 and September
2005 there were only 40 voters indicted for any kind of a crime
related to illegal voting. And I have supplied in the written
testimony a table that shows for you a breakdown of the 95
indictments that the Federal Government brought under this
program, which was to address voter fraud and voter
intimidation.
And when you dig into the data--because you have to dig
into it--you find that only 40 of those people actually were
voters. Others were government officials, campaign workers,
election works, and so forth.
So looking at those 40 voters, there were 26 convictions or
guilty pleas. That is a conviction rate of 65 percent, which is
quite low for the Justice Department.
When we look at those voters and those who were convicted,
we see that one person was convicted for registration fraud.
That person did not even vote. And, in fact, that man was
deported back to Pakistan for registering to vote inadvertently
when he went to redo his driver's license.
There were 20 people who voted who were ineligible. And
these were people who had felony convictions and had not had
their civil rights restored and also noncitizens, 15 of those
and then five people for multiple voting. And most of this
occurred over the Kansas, Missouri border.
So the record, the empirical record of the Justice
Department here where they have made a vigorous effort to root
out voter fraud has produced very, very little. And in my
testimony I mention other things that I have looked at. I have
made an extensive search to try to look at State records here.
I have used open records requests in the States to request data
from every attorney general, secretary of state. I wrote
letters to 2,700 district attorneys asking for data on this.
And I am convinced that there is no problem with individual
voters trying to commit voter fraud. So this first point here
is that we must look at this data carefully. And we should look
at what voters are doing because one of the consequences of
feeding what I think really has become a propaganda effort to
convince the American public that voter fraud is a problem is
that there is a lot of confusion about who is committing fraud
and where the system is vulnerable. And it is worth taking the
time to analyze that.
The other point that I want to make and to conclude quickly
is that contrary to what has been suggested here, there is no
evidence that I.D. laws increase confidence in voting or
increase voting. You can have an increase in turnout and you
can suppress the vote at the same time. The question in Indiana
is how much larger the turnout might have been had the photo
I.D. law not been in place. So I will conclude with that
comment.
[The prepared statement of Ms. Minnite follows:]
Prepared Statement of Lorraine C. Minnite
Mr. Nadler. I thank the witnesses. I will begin by
recognizing myself for 5 minutes.
Ms. Minnite, what do you mean when you say that there is no
evidence that I.D. laws increase confidence in voting? What do
you mean by confidence in voting?
Ms. Minnite. Well, this is a term that has been used a lot
in the media. It can be taken from public opinion polls which
ask people about whether or not they think their vote is going
to count and so forth. So most of when people say confidence of
voting, I think usually they are trying to rely on public
opinion polls that ask people questions that way.
Mr. Nadler. Thank you.
Mr. Emmer, you talked about thousands of--I think you said
thousands of people who were not removed from the rolls when
they died or when they moved. Is there any evidence that any of
these people voted after they died?
Mr. Emmer. I don't have any.
Mr. Nadler. Thank you. So now, I mean, this is not a
revelation that most States--when someone dies and moves out of
the State their name remains on the rolls for a few years. But
there is no evidence. And now an attempt has been made,
including by you in your testimony, to point to that as if it
is some great problem. But is there any evidence that there has
been any substantial voting by people whose names remain on the
rolls because they died or voting in two States because they
moved from one State to another and two counties because they
moved from one State?
In other words, when you move from place a to place b, you
register in place b. You don't go normally and deregister in
place a. But is there any evidence that there is a problem with
that, that people, in fact, have tried to vote where they used
to live as well as where they live or that people voted for
them after they died?
Mr. Emmer. Yes.
Mr. Nadler. What evidence is that?
Mr. Emmer. Well, I started to read it to you. It was the
mayoral primary in Chicago in Indiana. And then there is a
couple of other instances.
Mr. Nadler. Excuse me. And how many people allegedly voted
who were dead?
Mr. Emmer. Dead, I don't know because it wasn't----
Mr. Nadler. All right. How many people allegedly voted who,
in fact, had moved out of Chicago, let us say?
Mr. Emmer. One hundred and fifty-five invalid absentee
votes is what the research that I did showed.
Mr. Nadler. Invalid absentee votes, which were counted or
which were invalidated?
Mr. Emmer. That invalidated it because the race was
determined based on a difference of 228 votes.
Mr. Nadler. No, no, no. When you cast an absentee ballot,
they validate the vote or not because it is counted. Were these
ballots counted?
Mr. Emmer. Originally they were. It was subsequent after a
court challenge, my understanding is. That is when the court
determined----
Mr. Nadler. So ultimately, they weren't counted in the
election.
Mr. Emmer. Excuse me?
Mr. Nadler. So ultimately, they were not counted in the
election.
Mr. Emmer. Ultimately, the election was determined to be
flawed, and it was thrown out, the results.
Mr. Nadler. The Chicago mayoral election?
Mr. Emmer. The East Chicago mayoral primary in Indiana,
yes, sir.
Mr. Nadler. East Chicago? Okay.
Mr. Emmer. I am sorry if I confused the Chairman.
Mr. Nadler. Mr. Hebert, could you comment on this? Is there
much evidence--or Ms. Minnite? I am not sure who to ask--that
lots of people vote, that there is a substantial problem of
people impersonating dead people voting or impersonating
someone else voting.
Mr. Hebert. Well, first of all, there is not a voter fraud
epidemic out there of people impersonating others. As I am sure
every Member of this Committee knows, it is hard enough to get
people to show up to the polls once, let alone trying to
convince people to show up twice and vote for somebody else.
Let me just say that with regard to Mr. Emmer's case, there
are cases out there that involve voter fraud occasionally being
committed by somebody in connection using absentee ballot. But
a photo I.D. requirement doesn't have any impact on an absentee
ballot. Those are votes that come in by mail, and there is no
photo I.D. involved there. So often----
Mr. Nadler. Let me ask you a different question.
Eighty-six voting fraud cases that the Department
prosecuted, Ms. Minnite. How many of them involved
impersonations that a photo I.D. card might catch of those 86?
Ms. Minnite. Well, I am not sure exactly where the 86
number comes from. But if you look at the 95 indictments
brought between 2002 and 2005, none of them involved voter
impersonation.
Mr. Nadler. Okay. None of them?
Mr. Emmer, you argue that we have this epidemic of fraud.
How many cases have been convictions? How many convictions have
we had of people impersonating other people?
Mr. Emmer. Mr. Chairman, with all due respect, that wasn't
my argument. My problem here is that there is----
Mr. Nadler. Well, wait a minute. Your argument is that a
voter I.D. card is essential to prevent fraud.
Mr. Emmer. Yes, it is.
Mr. Nadler. Aside from impersonation, what other kinds of
fraud would a voter I.D. card prevent?
Mr. Emmer. The voter I.D. card--and I will give the example
that Mr. Hebert said--it would have nothing to do with absentee
ballots. In fact, this is why these cases are so rare. Without
a voter I.D. card, Mr. Chairman, with all due respect, you
can't determine whether or not fraud has occurred.
Mr. Nadler. Wait a minute. In an absentee ballot, someone
signs a ballot, mails it in. They compare it to the records
they have. How does a voter I.D. card have anything to do with
that process? And how could it?
Mr. Emmer. Well, after the fact, you would use--we have in
Indiana and Georgia, I believe it is, you get 2 days when you
do a provisional ballot, much like an absentee ballot, to
confirm that, in fact, you are who you say you are when you
filled out the ballot.
Mr. Nadler. Wait a minute. But in a provisional ballot or
an absentee ballot--an absentee ballot you mail it in. I am
going to be in Russia. You mail it in, and you fill out the
information. I am so and so, I live at such and such address. I
am a registered voter, and so forth.
They take that. They compare it to the records. They
compare your signature. In a provisional ballot where for some
reason your information is not at the polls, you sign an
affidavit in which you say I am so and so, I live at such and
such an address, signed so and so, and I am entitled to vote,
signed so and so.
They take that after the election, after election day, I
should say. They take that. They take it to the board of
elections. They compare that information with the information
they have. They compare the signatures. And they either say it
is the same person or it is not, and they count the ballot or
they don't. In either case, how would a voter I.D. photo I.D.
card come into the picture one way or the other?
Mr. Emmer. In the example that you just gave me, Mr.
Chairman, it would be, in fact, if there is any necessary
investigation after comparing the actual absentee ballot to the
signature on the voter rolls. If somebody determined that they
needed to further investigate whether or not that signature was
valid.
Mr. Nadler. But once you compared the signatures, there is
no further investigation.
Mr. Emmer. Excuse me. If somebody determines that that is
satisfactory, you are right. You are correct, sir.
Mr. Nadler. And is someone determines it is unsatisfactory,
now you are dealing with a criminal allegation that someone
forged your signature. A photo I.D. card is irrelevant. You
call in the person. You say prove you are so and so. You don't
need the card at that point. It wouldn't help at that point.
Mr. Emmer. Well, it may or may not. I will agree with the
Chairman.
Mr. Nadler. So the only thing that it would help then,
aside from this situation where it wouldn't help in 99.9
percent of the cases, is if someone shows up to vote and says I
am Joe Smith when, in fact, he is Joe Jones. How many proven
instances of that do we have?
Mr. Emmer. Well, and that is the problem. Therein lies the
problem. Without a photo I.D., how would you ever know?
Mr. Nadler. Mr. Hebert, could you comment on that? And then
I will yield the floor.
Mr. Hebert. Yes. This is a common thing we hear.
Prosecutors have all kinds of resources. First of all, when you
go to the polls to vote, for the most part, the people who run
the polls are neighborhood people who live in your neighborhood
who know you.
And so, when you come back, if you were to claim that you
are so and so there to vote and you attempt to vote and you
impersonate somebody else, and then that person comes to vote
later in the day, and they say I am sorry you can't vote
because you already voted, that person probably would vote a
provisional ballot. And the district attorney would then have
an opportunity to go ahead and prosecute the person who showed
up first.
Then you think to yourself, who is going to take that risk,
given the current felony statutes that are on the books, to go
and commit voter fraud with eye witnesses, like voter officials
who are going to witness you committing the voter fraud, rather
than commit it through some more subtle means like absentee
voting.
Mr. Nadler. Thank you. My time is expired.
I now recognize the distinguished Ranking Member of the
Subcommittee.
Mr. Franks. Well, thank you, Mr. Chairman. Mr. Chairman,
you know, I just want to repeat what has been said many times
here today, that the process of our voting and the process of
our elections are critically important to this country because
our confidence, and not only our confidence, but their actual
accuracy is a foundation of the Nation.
With that said, I would readily admit to the majority that
sometimes when I hear about voter fraud, there are a lot of
instances that you hear about, and it does seem that the
evidence indicates that that is less than what you hear about
in the public. If you take polls, there are a lot of people
that are concerned about voter fraud. And maybe it is less than
what people think.
But isn't that the point? Part of the issue here really is
about the public's understanding that their elections are
secure. I think the testimony here has been anywhere from 40 to
86 indications of voter fraud. And yet the testimony here today
has been that there has not been one court that has ever ruled
that anyone was prohibited from voting because they didn't have
the proper I.D. based on those allegations.
And so, you know, I don't discount the majority's concern
about some type of I.D. card, trying to make sure that that
doesn't prevent someone from voting who has a right to. So
consequently, I think it is unfair to discount the concern over
voter fraud.
But with that said, I think there is a different issue here
involved as well. I think the people of this country have a
right to believe that their elections have been made among
those who were who they said they were, as Mr. Emmer has said.
And there is another issue sometimes. You know, I mean, in
Mexico, the last election they had they had two people
pretending they were president for a long time because there
wasn't confidence in the system. And there wasn't any way to be
able to put that out of people's minds. And I think that a
voter I.D. that was universally accepted is one way to create
confidence in the system.
But if I could draw everyone's attention to two letters
that were sent about a month ago that I think illustrates the
confusion that can take place. These were letters that were
sent to the Democratic party of the state of Nevada.
And I want to ask the panelists whether they think that
there is any potential Federal election law based on the
following allegations made by the Clinton campaign for
President. The allegations were that caucus chairs, who
obviously supported Mr. Obama were, number one, deliberately
miscounting votes to favor Senator Obama; number two, were
deliberately counting unregistered persons as Obama votes; and
number three, were deliberately counting young children as
Obama votes. They also went on to say many Clinton supporters
were threatened with employment termination or other discipline
if they caucused for Senator Clinton.
Now, if those allegations are true--maybe they are just
campaign rhetoric. But if they were true, Mr. Emmer, would they
be potential Federal election campaign violations?
Mr. Emmer. I would say yes. Well, the answer is yes.
Mr. Franks. Yes. Well, let me shift gears, and let us give
the Obama, Clinton campaign their fair due here. This is
allegations made by the Obama campaign. And these are quotes.
This is written to the Nevada state Democratic party in written
form.
Those Hillary people closed the doors on our people, and we
had to call the cops in some precincts to have the locks cut
from the doors. They slipped people in the back doors. They
sent people home at 11:30 when it was illegal to prevent people
from voting before noon.
In precinct 21 a Democratic worker who was clearly for
Hillary refused to register Obama supporters and said she was
only registering Hillary supporters. Another one--almost
immediately I was told by a couple of other Obama precinct
leaders that the Hillary people were turning our supporters
away by asking to see their I.D.s and telling them they weren't
valid.
And, Mr. Emmer, I ask you a question again. If those
allegations were true--and again, I have no idea. I mean, it
sounds to me like just campaign bickering. But if they were
true, would they be potential Federal elections campaign
violations?
Mr. Emmer. I believe they would.
Mr. Franks. Yes. Well, I think the point I am making here
is do you think then--and I will give others a chance to
respond. Do you think that there are potential--if that is
true, do you think that a universal I.D. card that was
universally accepted would have at least been able to dispel
those kinds of allegations to some degree?
Mr. Emmer. It may have. And, Ranking Member Franks, what I
would add is the public is asking for this. Eighty percent of
Americans are asking for it. So it is not just the example that
you are giving which would warrant it, but the public across
all different races, religions, creeds, walks of life is asking
for this.
Mr. Franks. Well, my point exactly.
Mr. Chairman, I am going to yield back as my light is on. I
am sorry.
Mr. Nadler. Thank you.
I now recognize the gentleman from Virginia for 5 minutes.
Mr. Scott. Thank you, Mr. Chairman. I couldn't help but
notice the fair and balanced approach that the gentleman from
Arizona used. He criticized all of the Democrats. That is, I
guess, his view of bipartisanship.
Anyway, Representative Emmer, we have been warned by the
old adage to avoid situations where the cure is worse than the
disease. We have heard about the handful of fraudulent cases
that would possibly be cured with voter I.D. How many people
would be prevented from voting because they couldn't get their
paperwork straight in order to register?
Mr. Emmer. Mr. Chairman, Member Scott, none.
Mr. Scott. I am sorry?
Mr. Emmer. None, sir.
Mr. Scott. Okay. You don't have to find a birth certificate
or something?
Mr. Emmer. Mr. Chairman, Member Scott, I am sure you are
going to have to put together some paperwork. But as the
experience has shown in several States over the last couple of
years, absolutely no one--there is no evidence that anyone has
been denied the right to vote. In fact, cases in Georgia have
been dismissed for that very reason because plaintiffs can't
meet their burden of proof.
Mr. Scott. Mr. Shelton or Mr. Hebert, are there examples of
people that couldn't get their paperwork straight in time to
register to vote under the voter I.D. law?
Mr. Hebert. Absolutely, there is. And in Indiana, for
example, Marion County, which is where Indianapolis is, filed a
brief in the Supreme Court of the United States in which they
talked about the people who actually had been denied the right
to vote as a result of the inability to produce the necessary
documentation. There are other examples.
Remember, too, when the Indiana voter I.D. case was
brought, they had never had an election yet under the voter
I.D. when the case went to trial. I think it is a little
misleading for people to get up there and say, well, in that
case, the court didn't find a single instance of a voter being
denied the right to vote. But as it turned out, once the
election was held, yes, there are really horrendous stories of
veterans denied the right to vote even though they were already
registered to vote.
Mr. Shelton. Let me just add that the NAACP held a series
of hearings from the 2000 election and 2004 election in
Florida, in Ohio, and other places across the country where
numerous people testified they were not able to meet that
burden, provide the paperwork you are describing. As we talk
about that paperwork, we also have to talk about in the context
of what it costs to actually get a certified copy of your birth
certificate.
Or in some cases, they want a copy of your passport for
those that have it. We are talking about expenses that run $35
and up in most States across the country.
Mr. Scott. Mr. Shelton, in your hearings did you find
examples of people intentionally misleading others about their
eligibility to vote or how to vote or when to vote?
Mr. Shelton. Yes, sir, in terms of their eligibility and
when to vote and how to vote, there were documents sent out,
misleading documents in various communities, even right here in
Prince George's County, but other places across the country in
which misinformation was distributed about what time the vote
was going to take place, where voting sites were. In one case,
they were told if you were a Democrat you can vote on
Wednesday, but Republicans would vote on Tuesday. And, of
course, Tuesday was election day.
We have also had examples of robotic phone calls going to
people, in many cases misleading, and telling them that very
well we are testing out this new system. You can vote by
telephone today. So if you want to vote for so and so, you
punch the number one, for such and such, you punch the number
two. And then when the call was over after they went through
the ballot, they told them because you have been such a great
participant and because of your voting history and done such an
excellent job in the past, don't worry about coming out to the
polls to vote on Tuesday.
Mr. Scott. Thank you.
Ms. Minnite, are you familiar with the report issued by the
Asian-American Legal Defense Fund?
Ms. Minnite. I am familiar with it.
Mr. Scott. Can you talk about what response there has been
to the allegations of excessive requests for identification for
Asian-Americans?
Ms. Minnite. That I don't know.
Mr. Scott. Do you know if there is any response to the
allegation that there was lack of interpreters at polling
places?
Ms. Minnite. I don't know the response. I am assuming you
mean by the Justice Department or by election officials.
Mr. Scott. Election officials, just somebody.
Ms. Minnite. Yes. No, I don't know that there has been any.
Mr. Scott. And clerical mistakes or lack of information
available to help people actually cast a vote?
Ms. Minnite. No, I don't know.
Mr. Scott. Mr. Hebert, are you familiar with those
allegations?
Mr. Hebert. I am just generally familiar with them. I
represent the city of New York Board of Elections. A lawsuit
was filed against the city because there was allegations of
ineffective assistance at the polls provided to Asian-American
voters. The city ended up settling the case and, in fact, now
has pending for pre-clearance, what we think is a pretty
effective plan that remedies some of these same problems, at
least in New York City.
There are other problems, though, in other cities that
still remain unremedied. And the Justice Department's long
litany of 27 cases or whatever it was they said they had filed,
you know, a lot of those are against little, bitty counties in
some rural place. And the allegation was you violated Section
203 of the Voting Rights Act because you didn't put a sign up
saying that there was a bilingual election law in effect.
And the officials generally in the Justice Department you
don't want to use your resources that way. You want to take on
the big ticket items that private litigants can't do. That is
what you do at the Justice Department. Again, there are lots of
allegations like that, Mr. Scott. And that report contains
numerous examples of them.
Mr. Shelton. Mr. Scott, if I might also add that both
MALDEF, the Mexican-American Legal Defense and Education Fund
and the Asian-American Law Center testified before the NAACP in
2006 that indeed the types of cases that you are describing
were a major problem in a number of areas, both throughout the
South as well as throughout the West. We have copies of that
testimony. We would be delighted to provide it to the
Committee.
Mr. Scott. Thank you.
Mr. Nadler. Thank you. The gentleman's time is expired.
And I recognize the gentleman from Minnesota for 5 minutes.
Mr. Ellison. Thank you, Mr. Chairman.
Let me greet Mr. Emmer. He and I served in the Minnesota
State House together. We disagreed on most policy issues, but
we did agree on some, particularly debtor privacy issues. And
it is good to see you here again, Representative.
You know, you mentioned some things that happened in
Indiana. But let us talk about the State you and I know best.
In Minnesota we have some of the highest voter turnout in
the country, don't we?
Mr. Emmer. We do.
Mr. Ellison. And in general we are either one or two in the
country election after election after election. And we also
have some voting laws that make it easy for people to vote such
as same-day voter registration. Isn't that right?
Mr. Emmer. I am sorry. Mr. Chairman, Representative
Ellison, I didn't catch the last part.
Mr. Ellison. Yes. We also have rules that make it easy for
voters to cast a vote such as election day registration. Right?
Mr. Emmer. Yes, some would say that makes it easier.
Mr. Ellison. And also we have vouching, which means that if
you have--if you can--if you live in the precinct and you can
verify that you know this person lives in the precinct, even if
they don't have an I.D., they can register and vote on that
day. That is a rule in Minnesota, right?
Mr. Emmer. That is Minnesota.
Mr. Ellison. Yes. Well, can you tell me whether we have any
verifiable fraud in Minnesota?
Mr. Emmer. We have had some allegations, but as far as I
know, there have been no outright prosecutions in the last 2 to
4 years.
Mr. Ellison. Yes. So we have got highest voter turnout,
same-day voter registration, vouching, and no verified, proven
fraud at all. Now, we did have a case in Redwing. Do you
remember that thing?
Mr. Emmer. No.
Mr. Ellison. Not Redwing, Red Lake. I am sorry.
Mr. Emmer. That one I remember.
Mr. Ellison. Yes, the Red Lake one. You know, you are
quicker than me on that one, Red Lake. Do you remember the Red
Lake incident?
Mr. Emmer. I do vaguely. Perhaps you could refresh my
recollection.
Mr. Ellison. Yes, let me do that. In 2004 in the Native
American Indian reservation on the far west part of our State
reported that somebody from Washington came there and was
challenging every voter, regardless as to having specific
information. Because in Minnesota you can challenge a voter.
And the tribal authorities actually had to escort this
person off the reservation because they were creating such a
nuisance for native American voters. Are you familiar with that
case? Do you remember that one?
Mr. Emmer. That is very unfortunate. We have the same
problem in Minneapolis and St. Paul with Republicans when they
go to vote.
Mr. Ellison. Yes, that is a good joke. I appreciate that.
But let me just ask a few other questions.
Thank you, Professor Minnite, for your work. I would like
to ask you is there--I looked on your chart, and I couldn't
find any demonstrated or documented cases of imposter voting,
specifically imposter voting. I am voting today. I am not who I
say I am. Here is my fake I.D., and I voted. Are there any
cases of that that you were able to discover?
Ms. Minnite. Not in this data. Not in the Federal record
here, no. I will add the one case of impersonation that I know
of in looking, you know, for years now and looking quite hard
was a case in a Republican primary in New Hampshire--I think it
was 2002--in which a 17-year-old who shared his father's name
and knew that his father was going to be out of town went and
voted because the polling site was in his school and the
teacher had taken the class down to say, you know, we must
exercise our civic duty and stuff. So when you turn 18, vote.
And he knew his father was out of town and that his father
wanted to vote for George Bush. I am sorry. No, it must have
been 2000. And he voted. But in that case, an I.D. card
obviously wouldn't have worked because he had the same name as
his father. So that is the only case that I have come across in
which you might say there was a kind of impersonation going on.
Mr. Ellison. Now, I am familiar with that case. And my
recollection is that it was New York. But it could have been
New Hampshire.
Ms. Minnite. It was New Hampshire.
Mr. Ellison. Was it?
Ms. Minnite. Yes.
Mr. Ellison. And in this particular case, I recall that kid
getting a criminal record.
Ms. Minnite. No, he----
Mr. Ellison. Or some sort of a juvenile----
Ms. Minnite [continuing]. Had a community service
requirement. And he was also required to make a speech to his
class about integrity in the voting process. But they didn't
want to give him a criminal record for that.
Mr. Ellison. Sully his record. Yes. And so, that is the
only case I have ever heard of.
Let me ask you this as well. What is really going on here?
I mean, we have had a lot of people say that we have got to
have these photo I.D.s because we have got to have integrity in
the vote. I haven't heard any proof that people don't believe--
you know, believe that is a widespread problem. And the number
of cases are woefully inadequate to support the case. But we
have this big P.R. campaign going on.
And now what we are seeing is scholars like yourself
saying, you know, there is no there there. So what is really
going on? Why the big furor about voter fraud?
Mr. Shelton, would you venture to enlighten us a little
bit?
Mr. Shelton. I believe it is an attempt at voter
suppression, that we know that the poorest of Americans have a
tendency to be racial and ethnic minorities. They have a
tendency to vote in one direction for a particular party. The
thrust of this seems to be the other party pushing against
those participants being able to cast that vote and have that
vote counted.
We have had other experiences in which African-Americans
would go to the polls in places that do have a photo I.D.
requirement. And when the African-American came to the poll to
vote because the poll workers have the discretion to actually
accept other forms of identification, even signature
attestation, which, by the way, is the most effective and sure-
fire way to prevent any kind of misrepresentation, that very
well they were being sent home to pick up their photo I.D.s to
come back.
But the White voters that lived in the same community were
allowed to cast votes even if they didn't have the photo I.D.
on themselves. And they were saying it is a discriminatory
application of the law that cuts across racial lines and cuts
across lines of, not only employment, but certainly income.
Mr. Ellison. Mr. Chairman, can I ask unanimous consent to
have this University of Wisconsin 2005 study entered into the
record?
Mr. Nadler. Without objection, so ordered.
[The information referred to follows:]
Mr. Ellison. Am I out of time?
Mr. Nadler. Yes, you are.
I thank the witnesses. That is our last questioner. I thank
the witnesses.
Without objection, all Members have 5 legislative days to
submit to the Chair additional written questions for the
witnesses, which we will forward and ask the witnesses to
respond as promptly as you can so that their answers may be
made part of the record. Without objection, all Members will
have 5 legislative days to submit any additional materials for
inclusion in the record.
Again, I thank the witnesses. And with that, this hearing
is adjourned.
[Whereupon, at 12 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record