[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
VOTING WRONGS: OVERSIGHT OF THE JUSTICE DEPARTMENT'S VOTING RIGHTS
ENFORCEMENT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
__________
APRIL 18, 2012
__________
Serial No. 112-114
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina JERROLD NADLER, New York
ELTON GALLEGLY, California ROBERT C. ``BOBBY'' SCOTT,
BOB GOODLATTE, Virginia Virginia
DANIEL E. LUNGREN, California MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana MAXINE WATERS, California
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio MIKE QUIGLEY, Illinois
TED POE, Texas JUDY CHU, California
JASON CHAFFETZ, Utah TED DEUTCH, Florida
TIM GRIFFIN, Arkansas LINDA T. SANCHEZ, California
TOM MARINO, Pennsylvania JARED POLIS, Colorado
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
MARK AMODEI, Nevada
Richard Hertling, Staff Director and Chief Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel
------
Subcommittee on the Constitution
TRENT FRANKS, Arizona, Chairman
MIKE PENCE, Indiana, Vice-Chairman
STEVE CHABOT, Ohio JERROLD NADLER, New York
J. RANDY FORBES, Virginia MIKE QUIGLEY, Illinois
STEVE KING, Iowa JOHN CONYERS, Jr., Michigan
JIM JORDAN, Ohio ROBERT C. ``BOBBY'' SCOTT,
Virginia
Paul B. Taylor, Chief Counsel
David Lachmann, Minority Staff Director
C O N T E N T S
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APRIL 18, 2012
Page
OPENING STATEMENTS
The Honorable Trent Franks, a Representative in Congress from the
State of Arizona, and Chairman, Subcommittee on the
Constitution................................................... 1
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Ranking Member, Subcommittee on the
Constitution................................................... 2
The Honorable Lamar Smith, a Representative in Congress from the
State of Texas, and Chairman, Committee on the Judiciary....... 5
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, Ranking Member, Committee on the
Judiciary, and Member, Subcommittee on the Constitution........ 6
WITNESSES
Cleta Mitchell, Partner, Foley & Lardner
Oral Testimony................................................. 8
Prepared Statement............................................. 11
M. Eric Eversole, Director, Military Voting Project
Oral Testimony................................................. 25
Prepared Statement............................................. 28
Wendy Weiser, Director of Democracy Program, New York University
School of Law
Oral Testimony................................................. 37
Prepared Statement............................................. 39
J. Christian Adams, Attorney, Election Law Center, PLLC
Oral Testimony................................................. 62
Prepared Statement............................................. 64
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Material submitted by the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, Ranking
Member, Committee on the Judiciary, and Member, Subcommittee on
the Constitution............................................... 86
Material submitted by Wendy Weiser, Director of Democracy
Program, New York University School of Law..................... 95
Material submitted by the Honorable Trent Franks, a
Representative in Congress from the State of Arizona, and
Chairman, Subcommittee on the Constitution..................... 97
Material submitted by the Honorable Jerrold Nadler, a
Representative in Congress from the State of New York, and
Ranking Member, Subcommittee on the Constitution............... 103
APPENDIX
Material Submitted for the Hearing Record
Material submitted by the Honorable Trent Franks, a
Representative in Congress from the State of Arizona, and
Chairman, Subcommittee on the Constitution..................... 126
Material submitted by the Honorable Jerrold Nadler, a
Representative in Congress from the State of New York, and
Ranking Member, Subcommittee on the Constitution............... 157
Response to Post-Hearing Questions from Cleta Mitchell, Partner,
Foley & Lardner................................................ 175
Post-Hearing Questions submitted to M. Eric Eversole, Director,
Military Voting Project........................................ 189
Response to Post-Hearing Questions from Wendy Weiser, Director of
Democracy Program, New York University School of Law........... 191
Response to Post-Hearing Questions from J. Christian Adams,
Attorney, Election Law Center, PLLC............................ 200
VOTING WRONGS: OVERSIGHT OF THE JUSTICE DEPARTMENT'S VOTING RIGHTS
ENFORCEMENT
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WEDNESDAY, APRIL 18, 2012
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to call, at 9:07 a.m., in
room 2141, Rayburn House Office Building, the Honorable Trent
Franks (Chairman of the Subcommittee) presiding.
Present: Representatives Franks, Chabot, King, Nadler,
Conyers, Scott, and Quigley.
Also Present: Representatives Smith.
Staff Present: (Majority) Paul Taylor, Subcommittee Chief
Counsel; Zachary Somers, Counsel; Dan Huff, Counsel; Sarah
Vance, Clerk; (Minority) David Lachmann, Subcommittee Staff
Director; and Veronica Eligan, Professional Staff Member.
Mr. Franks. Good morning, and welcome to this Constitution
Subcommittee hearing on Voting Wrongs: Oversight of the Justice
Department's Voting Rights Enforcement.
Without objection, the Chair is authorized to declare
recesses of the Committee at any time.
I want to welcome the panelists here and welcome all of you
here this morning.
Today, we examine what the Voting Section at the Department
of Justice has been doing and what it has not been doing. As
the 2012 Presidential election nears, the Voting Section must
ensure that those military members who are defending our
Republic have the opportunity to participate in it.
There are approximately two million military voters, many
in combat zones, many risking their lives on behalf of all of
us, but with limited access to ballots. Accordingly, in 2009,
Congress passed the Military and Overseas Voter Empowerment
Act, MOVE, which requires States to mail absentee ballots to
all military voters at least 45 days before a Federal election.
The Military Voter Protection Project analysis shows that
inadequate enforcement of the MOVE Act in the 2010 cycle
disenfranchised thousands of service members. This year, DOJ
must identify violations early, negotiate strong settlements
that deter repeat offenses, and ensure military recruitment
centers and bases offer opportunities to register or request
ballots as required by law.
In 2010, there were at least 14 States with counties that
failed to meet the 45-day deadline. Nonprofit watchdogs
discovered that DOJ failed to prosecute most of these
illegalities, leaving insufficient time for corrective action
that would fully protect thousands of military voters.
Where DOJ sued violators for missing the 45-day deadline to
mail the ballots, it settled for an extension of time for
military voters to return them. But that does not solve the
problem, because the absentee ballot must reach the voter by
election day to count, no matter when it is returned.
Therefore, DOJ's so-called solution systematically
disenfranchises military voters.
DOJ didn't require jurisdictions in violation to use
Express Mail to send the ballots. While it costs more, DOJ does
not hesitate to impose heavy costs on jurisdictions when it
suits their ideological agenda, for example, by requiring
bilingual ballots for voters who claim to speak English well.
Similarly, the Justice Department seems unconcerned about low
registration rates for military recruiting centers, even though
it aggressively sued States which it thinks register an
insufficient number of people at welfare offices.
The Voting Section needs to make a first priority of
protecting service members whose first priority is protecting
all of us. Instead, the Voting Section is seeking headlines in
opposing voter ID laws that an overwhelming majority of
Americans support as necessary and non-discriminatory.
In a 2008 case, the Supreme Court recognized, ``The
electoral system cannot inspire public confidence if no
safeguards exist to confirm the identity of voters.'' It hardly
inspires public confidence that a White 20-something can obtain
the ballot of the first Black Attorney General. Let me say that
one more time. It hardly inspires the public confidence that a
White 20-something can obtain the ballot of the first Black
Attorney General. There is a little video here to illustrate
that point.
[Plays video.]
Mr. Franks. Opposing voter ID is consistent with the Voting
Section's pattern and practice of making strained legal
arguments in areas it favors ideologically.
A starker example of DOJ's uneven priorities is its
selective enforcement of the National Voter Registration Act.
DOJ is aggressively suing States for not registering sufficient
voters at welfare offices, and at the same time it has not
brought a single case under Section 8 of the law requiring
States to maintain the accuracy of their voter lists, despite
documented inaccuracies. The result is the identities of
illegal or dead persons could be used to cancel out lawful
votes.
With that, I would now recognize the Ranking Member, Mr.
Nadler, for his opening statement.
Mr. Nadler. Thank you, Mr. Chairman.
We are back again with another oversight hearing airing
allegations, most of them demonstrably false, against the
Department of Justice without inviting the Department of
Justice to testify.
I have served in the House since 1992 and never before this
Congress have I ever seen anything quite like what has become
standard practice in this Committee. We hold hearings on
legislation stripping the District of Columbia of its basic
home rule rights without the courtesy of allowing the Delegate
from the district to testify. We have hearings on the
Department of Justice and other executive branch agencies in
which witnesses allege misconduct without inviting the
Department or the Administration to testify or to rebut.
I suppose I should be grateful that the minority is allowed
a single witness. Evidently, some Republican Chairman believe
that even this is optional.
This conduct is unbecoming of this Committee and of this
House. If we are going to turn these hearings into veritable
able kangaroo courts, then we should drop the pretense that we
are actually engaged in objective oversight or legitimate fact
finding. And I hope that no one will insult our intelligence by
telling us that the minority could have invited the
Administration to testify as our one sole minority witness that
we are allowed.
I say this because the issue before us today, the right to
vote in a free and fair election and the right to have our
votes counted, is at the heart of our system of government.
Indeed, it is a fundamental part of who we are as Americans.
Without free and fair access to the ballot for all Americans,
our democracy would be a sham.
Devices to suppress voting, like restricting voter
registration or selectively requiring photo IDs that are more
commonly possessed by White voters and not by minority, young,
or elderly voters, betrays our right to a republican form of
government--small ``r''--as guaranteed by Article 4, Section 4
of the Constitution.
We are even going to have a rehash of long-discredited
allegations about the New Black Panther Party case, one in
which no voter has ever complained of having been intimidated.
As Abigail Thernstrom, a Republican member of the Civil Rights
Commission, put it succinctly, ``This doesn't have to do with
the Black Panthers. This has to do with Republican fantasies
about how they could use this issue to topple the
Administration. My fellow conservatives on the Commission had
this wild notion that they could bring Eric Holder down and
really damage the President.''
I think it is also important to keep in mind that
widespread voter fraud is a talking point, not a demonstrated
reality. One Republican witness has submitted a list of alleged
voter fraud cases stretching back to the 1990's. What is
striking about this list is that many of the cases have nothing
to do with voter ID, such as alleged cases of vote buying or
stealing ballots; that some States have only one case; and that
some States are not even on the list. Very pervasive.
It is especially interesting that the list makes no mention
of voter suppression, when just recently former Maryland
Governor Bob Ehrlich's campaign manager was convicted and
sentenced for using fraudulent robocalls to suppress the vote
in the African American community.
I also see no mention of the recent unsuccessful effort by
the Republican National Committee to get out from under a 1982
consent decree in which the Republican National Committee
agreed to stop engaging in various voter suppression tactics
aimed at suppressing minority votes.
The Third Circuit's decision, handed down just a few weeks
ago, makes for interesting reading. In the 1982 consent degree
the RNC agreed ``to refrain from undertaking any ballot
security activities in polling places or election districts
where the racial or ethnic composition of such districts is a
factor in the decision to conduct or the actual conduct of such
activities there and where the purpose or significant effect of
such activities is to deter qualified voters from voting.''
I hope that we will have the opportunity to discuss the
issue of voter suppression and the pretextual and nonsensical
allegations of voter fraud as an excuse for voter suppression
which we see all over the country now.
The Supreme Court has noted the rarity of in-person voter
fraud, and I would point out that cases of ballot stuffing or
other kinds of alleged fraud have nothing to do with voter ID.
It is only in-person voter fraud that has anything to do with
voter IDs. In Crawford versus Marion County Election Board, the
Court found that ``there was no evidence of any in-person voter
fraud actually occurring in Indiana at any time in its
history.''
There have, however, been instances of individuals who are
duly qualified voters being turned away. Perhaps most
notoriously, again in the State of Indiana, 12 nuns in their
80's and 90's were denied their right to vote because they did
not have drivers' licenses and had outdated passports. Sister
Julie McGuire, who turned the nuns away, said they hadn't been
given provisional ballots because it would be difficult to get
the nuns to a motor vehicle branch for non-driver IDs in time
for the 10-day window allowed for provisional IDs. Sister
McGuire told the Associated Press, ``You have to remember that
some of these ladies don't walk well. They are in wheelchairs
or walkers or electric carts.'' They were all denied their
right to vote.
This Committee in our investigation of the U.S. Attorney
firing scandal--I think it was about 4 or 5 years ago--and in
another investigation by the IG and the Office of Professional
Responsibility uncovered evidence showing that some of the U.S.
Attorneys had been fired at the direction of high-level Bush
White House officials because of complaints that the U.S.
Attorneys did not pursue voter fraud prosecutions that they had
determined to be meritless. So they were fired.
In one case, in addition to White House personnel, evidence
was uncovered that a Republican Senator and a Republican Member
of this House had applied political pressure to get
prosecutions initiated before the elections.
I hope that as we receive testimony from Republican party
attorneys alleging pervasive voter fraud, we can remember these
facts.
Mr. Chairman, it wasn't too many years ago that I had the
privilege of working on a bipartisan basis with the Republican
Chairman of this Committee to reauthorize the Voting Rights
Act. It was a reflection of our belief that the right to vote
must be inviolate and that there are still too many challenges
to making that a reality for all Americans, especially members
of minority communities. Chairman Sensenbrenner and Ranking
Member Conyers demonstrated what a genuine commitment to voting
rights can accomplish when we put our minds to it.
I also realize that the vote to reauthorize the Voting
Rights Act was not unanimous and that some Members of this
Committee did not vote for it. That is certainly a Member's
prerogative, and I have to respect it. Nonetheless, I would
hope that at some point we could return to that bipartisan
consensus in favor of the right to vote. Without it, we cease
to be the America that all of us believe in. I don't believe we
can ever allow that to happen.
I join the Chairman in welcoming our witnesses, and I look
forward to the testimony.
Mr. Chairman, I thank you, and I yield back.
Mr. Franks. Thank you, Mr. Nadler.
I now yield to the distinguished Chairman of the full
Committee, Mr. Smith, for his opening statement.
Mr. Smith. Thank you, Mr. Chairman.
The foundation of our democracy rests on secure and fair
elections. Unfortunately, voter fraud undermines the electoral
process and can sway the ultimate outcome of elections. Illegal
votes negate the votes of legal voters.
Voter ID laws help ensure the integrity of our elections
and protect the rights of lawful voters. So far, 16 States have
photo ID requirements for casting a ballot.
We must safeguard the integrity of our voting process in
order to safeguard our democracy. But rather than support
commonsense proposals to help protect our democratic process,
the Justice Department's Voting Section wastes taxpayer dollars
in fighting the very laws that promote fair and accurate
elections.
Photo identification is part of everyday American life.
Citizens are required to show a valid form of identification to
open a bank account, cash a check, drive a car, or board a
plane. If valid identification is required for these daily
tasks, then why is it not required to exercise one of our most
valuable democratic rights? Voter ID opponents insist that
voter fraud is not a serious problem, but voters disagree. The
majority of Americans overwhelmingly support laws that require
people to show photo identification before being allowed to
vote.
A recent Rasmussen poll survey found that 64 percent of
likely U.S. voters agree that voter fraud is a serious problem,
while just 24 percent disagree, and 73 percent of respondents
believe that a photo ID requirement before voting does not
result in any discrimination. In fact, the Supreme Court in a
6-3 decision authored by liberal Justice John Paul Stevens
rejected the argument that voter ID laws are discriminatory
when it upheld Indiana's strict voter ID law in 2008.
In upholding the Indiana law, the Court cited flagrant
historical examples of in-person voter fraud as well as the
State's administrative interest in carefully identifying who
has voted. The Court also noted the State may have a legitimate
interest in requiring photo ID for voters even without evidence
of widespread fraud. The Court's opinion quoted the report from
the bipartisan Commission on Federal Election Reform co-chaired
by former President Jimmy Carter that stated, ``The electoral
system cannot inspire public confidence if no safeguards exist
to deter or detect fraud or to confirm the identity of
voters.''
Most forms of voter fraud are difficult to detect,
especially if photo IDs are not required. That same Commission
report found voter fraud does occur and could affect the
outcome in a close election.
Having lost in both the Federal courts and the Court of
public opinion, you would think voter ID opponents would give
up. But just last month the Obama administration announced it
will challenge the Texas voter ID law which is based on the
Indiana law and was overwhelmingly supported by Texas voters.
The Justice Department also seeks to challenge a similar law in
South Carolina.
The Department claims that the laws are discriminatory
because minorities are less likely to have the required IDs,
but a closer look at the Department's math shows that their
arguments simply don't add up. For example, in South Carolina,
90 percent of Blacks have photo IDs, compared to 92 percent of
Whites, so the Justice Department seeks to override a State law
because of a difference of less than 2 percent.
The Department's case against the Texas voter ID law is
equally troubling. Assistant Attorney General for the Civil
Rights Division, Tom Perez, claims that the disparity between
photo ID possession by Whites and Hispanics is statistically
significant. Data shows that 95 percent of White voters have
photo ID, as do 93 percent of Hispanic voters. Once again, the
disparity is only 2 percentage points. Even that slight
difference may be within the margin of error since Texas, in
gathering some of the data, had to guess who is Hispanic based
on surname.
Ironically, the Justice Department's own policy requires
visitors to show valid photo ID before being allowed to enter
its own buildings. If it takes valid identification to walk the
halls of the Justice Department, maybe it should take at least
that much to determine the outcome of our elections.
If the Department wants to protect the rights of voters,
they should work to ensure that States remove ineligible voters
from their rolls as required by Federal law. The rights of all
voters should be protected and respected by the Obama
administration. The misplaced priorities of the Department of
Justice wastes taxpayers' money and does little to protect the
rights of legal voters.
Thank you, Mr. Chairman. I yield back.
Mr. Franks. Thank you, Mr. Chairman.
Without objection, other Members' opening statements will
be made part of the record.
Mr. Conyers. Pardon me, Mr. Chairman.
Mr. Franks. Please forgive me. The distinguished former
Chairman is recognized.
You snuck up on me, Mr. Chairman.
Mr. Conyers. Thank you, Chairman Franks.
There is a bit of irony connected with this hearing, isn't
there? Here we have the great work of Dr. Martin Luther King in
terms of breaking down the segregation in voting that was
historic in the South. We have the incident of the Edmund
Pettus Bridge in which people were marching to get the rights
to vote and were brutally oppressed by law enforcement and
other citizens that were not prepared to open up voting for
everybody.
Here, 3 years ago, we elected the first African American
President as the 44th leader of this great country. Here we
have an Attorney General Eric Holder, another distinguished
lawyer of color, in charge of the Department of Justice. And
now we come this morning to discuss how the Department of
Justice is encouraging voter wrongs instead of continuing to
work on making this a more open society.
I am the only Member here that was present when the Voting
Rights Act of 1965, which came out of this Committee, became
law and has been continued on three different occasions. And it
seems to me, based on the very complete contrast between
Ranking Member Jerrold Nadler's comments and those of the
Chairman, it seems to me that there ought to be room in this
great Committee of the House Judiciary, which I joined when
Emanuel Celler of New York was the chair, that we ought to be
able to, without the formality of witnesses, try to get some of
the facts straightened out here. This is not complex, and I
propose that myself and Jerrold Nadler, Bobby Scott, and Mr.
Quigley join with the Chairman of the Subcommittee and the
Chairman of the full Committee to try to get some of these
matters straight.
Now, share with me the fact that during the previous
Administration the Department of Justice utilized its
infrastructure and politicized the hiring process that has come
out in our own hearings here, overriding the objections of
career attorneys in voting rights cases, firing United States
Attorneys for not pushing politically motivated prosecutions,
and pressuring States to purge voting rolls.
We also found out that since the days of the former acting
head of the Civil Rights Division, Brad Schlozman, who the
Office of Professional Responsibility and the Office of the
Inspector General both found ``violated Federal law in order to
stock the division with his political equals'' the integrity,
thank goodness, of the Civil Rights Division has since been
restored.
So what we need to do now is examine the unprecedented
array of State restrictions on the right to vote. Thirty-four
States have introduced legislation, fifteen State laws have
been enacted that seriously impact voting in terms of limiting
voting by requiring the presentation of photo ID, excluding
common forms of identification, declaring proof of citizenship
as a condition to vote, limiting or eliminating early voting
opportunities, and stalling or eliminating registration
efforts.
So, Mr. Chairman, I think we have a huge responsibility on
our hands; and I urge all of the Committee--all of the Members
of the Committee on both sides of the aisle to join us in
seeking the truth about what brings us here today.
I thank the Chairman for the time.
Mr. Franks. I thank the gentleman and apologize for
overlooking him.
So, without objection, other opening statements by other
Members will be made part of the record.
I would like now to introduce our witnesses.
Cleta Mitchell is a partner at Foley & Lardner, LLP, and a
member of the firm's political law practice. Ms. Mitchell is
also the president of the Republican National Lawyers
Association. She has more than 30 years experience in law
politics and public policy, even though she is only 35. She
advises candidates, campaigns, and individuals on State and
Federal campaign finance law and election law.
Mr. Eric Eversole is the Executive Director of the Military
Voter Protection Project and formerly served as litigation
attorney in the Department of Justice's Voting Section. He is a
Navy JAG officer who served on active duty from 1999 until
2001. Eric is an expert on military voting issues and has
testified on numerous occasions before Congress.
Wendy Weiser is the Director of the Democracy Program at
NYU School of Law. She has authored a number of reports and
papers on election reform and has provided legislative drafting
assistance to Federal and State legislators and administrators
across the country. She is also an adjunct professor of law at
NYU School of Law. Professor Weiser is a graduate of the Yale
Law School.
J. Christian Adams is a former Justice Department Voting
Rights Attorney and runs the online blog Election Law Center.
He served 5 years as an attorney in the Voting Section of the
Justice Department where he brought a wide range of election
cases to protect racial minorities. Prior to that, he served as
General Counsel to the South Carolina Secretary of State.
I would just thank all of the witnesses for appearing
before us today.
Each of the witnesses' written statements, their entire
written statements, will be entered into the record; and I
would ask each of you to summarize his or her testimony in 5
minutes or less.
To help you stay within that time, there is a timing light
on your table. When the light switches from green to yellow,
you will have 1 minute to conclude your testimony. When it
turns red, it signals that the witness's 5 minutes have
expired.
Before I recognize the witnesses, it is the tradition of
this Subcommittee that they be sworn in, so if you would please
stand.
[Witnesses sworn.]
Mr. Franks. Thank you. Be seated, please.
Also, the witnesses, I would just warn you to please turn
your microphone on before beginning to speak.
I would now recognize our first witness, Ms. Mitchell, for
5 minutes.
TESTIMONY OF CLETA MITCHELL, PARTNER,
FOLEY & LARDNER
Ms. Mitchell. Thank you, Mr. Chairman.
Mr. Chairman, Lamar Smith as well, Mr. Chairman, Mr.
Conyers, thank you so much for hosting this hearing and holding
this hearing, because it is an important issue. I have been
before this Committee and this Subcommittee previously to talk
about the issues that are pressing in this country with regard
to voter integrity and open, fair, and honest elections.
The Republican National Lawyers Association is an
organization of attorneys nationwide who are dedicated to fair,
open, and honest elections, and I am proud and honored to serve
as its President.
We are here today to talk about the fact that we have an
Attorney General who, rather than acting as the chief law
enforcement officer of this country who is responsible for
enforcing more than 15 Federal laws that make various types of
activity criminal activity in the area of elections, that
rather than spending his time and the time of his Department of
Justice working to ensure that our elections are indeed free of
fraud and free of criminal activity, instead, this Attorney
General is doing everything in his power to fight the State
authorities who are trying to ensure the integrity of our
elections.
He has become, instead of being the chief law enforcement
officer, a partisan political operative, carrying water for the
Democratic National Committee, liberal interest groups, and the
Obama reelection campaign. He attacks voter identification laws
without regard to the law or the facts.
It is amazing to me that this is yet another example where
the Attorney General has decided that he is the arbiter of what
the law is, not what the Supreme Court has said but what
Attorney General Eric Holder and his political allies believe
to be the law, and has ignored the fact that the United States
Supreme Court has indeed ruled in the Crawford case that has
been referenced earlier here this morning that, despite what
the chairman of the Democratic National Committee and the
Department of Justice Attorney General Eric Holder say, that
voter ID laws are not a poll tax.
The Supreme Court rejected that argument in the Crawford
case, and indeed the Court said that a voter identification
requirement is not a poll tax because there is a balance. And
because the purpose of a voter identification, a photo
identification, is to ensure and protect the integrity of the
election, that whatever burden may exist is offset by the need
to protect the integrity of the elections.
The trial court in that case--the Federal trial court had
found that, notwithstanding the arguments put forward by the
plaintiffs that there were hundreds of thousands of people
without photo identification, an argument that persists to this
day but which is not true, in fact that fewer than 1 percent--
this was a finding by the Federal trial Court in the Crawford
case, that fewer than 1 percent of Indiana voters would not
have a photo ID. And the court found that since 99 percent of
the voters would in fact have photo identification that it was
not an impermissible burden to require that a photo ID be
presented.
The Attorney General further ignores the facts, and I could
go on and on about the factual evidence that the Attorney
General ignores, but let me give you a case study of just 2
weeks ago in Tennessee.
In Tennessee 2 weeks ago, there was an election which
required, a Statewide election, where photo identification is
required. There were 645,775 votes cast in that election. Of
those people who appeared to vote, there were 266 who did not
have photo ID or who did not present photo ID, and that
included some people who came protesting the new photo ID
requirement.
Those people under the law had the right to go--they were
able to cast ballots provisionally, were able to go and
retrieve photo ID and present it within a period of time. One
hundred and twelve of those 266 people did so and returned with
photo ID, and their votes were counted. So out of 645,775 votes
cast, there were 154 people who, for whatever reason, either
did not return, and their votes were not counted. That is.023
percent of those who participated in the election. It seems to
me that is well within the finding of the Indiana Federal trial
judge in the case that was upheld by the U.S. Supreme Court.
The Attorney General further mystifyingly decided last week
to quote the Republican National Lawyers Association as his
source for the fact that no voter fraud exists. If Chairman
Nadler will remember, when I last testified before this
Committee in 2008 I asked and the Chairman allowed at the time
for me to put into the record evidence of voter fraud cases
from across the country. And since that time the Republican
National Lawyers Association has on its Web site a voter fraud
page where we post cases of voter fraud. I have attached that
as part of the record, nine pages, 44 States. It is not
intended to be exhaustive, but just since February the RNLA has
written about 11 cases of voter fraud, all of which have been
brought not by the Department of Justice but by State and local
authorities.
So the point is that I don't know why the Attorney General
would cite RNLA as the source of no voter fraud. I guess
believing is seeing.
I would urge this Committee to please continue its
oversight, to ask questions. I agree with Chairman Conyers, ask
some questions of the Department of Justice and what it is
doing to publicize its intent to prosecute election crimes in
this election.
I will just close with this one comment, a statement which
is from the manual, the Department of Justice Manual on Federal
Election Crimes Prosecution. And the manual states that in the
United States, as in other democratic societies, it is through
the ballot box that the will of the people is translated into
government that serves rather than oppresses. Our
constitutional system of representative government only works
when the worth of the honest ballots is not diluted by invalid
ballots procured by corruption.
The RNLA couldn't agree more. We stand ready to assist this
Committee in its oversight of the Department of Justice to
ensure the protection and the integrity of our elections.
Thank you, Mr. Chairman.
[The prepared statement of Ms. Mitchell follows:]
ATTACHMENT
__________
Mr. Franks. Thank you, Ms. Mitchell.
I would remind the panelists there that we would like to
keep you within the 5-minute timeframe, if possible.
I would now recognize Mr. Eversole for 5 minutes.
TESTIMONY OF M. ERIC EVERSOLE, DIRECTOR,
MILITARY VOTING PROJECT
Mr. Eversole. Good morning, Chairman Franks and Members of
the Subcommittee. Thank you for allowing me to testify today
regarding the enforcement of military voter rights and in
particular the enforcement of those rights by the Voting
Section of the Department of Justice.
As many of the Committee Members know, in 2009 Congress
passed the most sweeping military voter reform in over 20
years. That new law, the MOVE Act, promised to usher in a new
era for military voters, one that would provide those voters
with enough time to receive and return their ballots so that
they would be counted on election day.
But a law, no matter how well written, cannot deliver on
its promise if the agency responsible for enforcing that law
fails to do so or fails to do so in a timely or an effective
manner. The agency with that responsibility, the Voting Section
of the Department of Justice, has failed to uphold its end of
the bargain.
From day one after the MOVE Act was passed in 2009, the
Voting Section showed an unwillingness to aggressively enforce
the MOVE Act, to conduct meaningful investigations, or to bring
actions in a timely manner. These failures were well-documented
in 2010, and they continue to occur in 2012. The Voting
Section's only response to these failures, one that rings
hollow, is that it vigorously enforces the law because it
brought 14 cases or reached agreements in 14 States to protect
military voting rights.
But numbers alone mean nothing. The questions that must be
asked and answered is whether the military voter rights were
actually protected in those agreements, were the cases brought
in a timely manner, and did the agreements help ensure that
service members would be able to have their voices heard on
election day. On each count, the Voting Section failed in its
responsibility.
The first thing I would say about these 14 agreements is
that at least five of them aren't agreements at all. Five of
the cases are actually letters of compliance written from the
State or the Territory saying that they got the Department of
Justice's letter about complying with the law and that they
agree to comply with the law. But that is not an agreement. No
matter how you slice it, it is a smoke screen.
But even in the cases where there weren't agreement, the
other nine cases, it is important to look at the dates of those
agreements. All of them are signed just a few weeks before the
election, and when you settle a military voter case just a few
weeks before the election when our service members are in all
four corners of the world, you don't provide them with
sufficient time and sufficient remedies to make sure that their
rights are protected when violations occur. Justice delayed is
justice denied.
But, more importantly, if you look at each of these
agreements, many of these agreements do not fully protect our
men and women in uniform. Take the cases against New York and
Illinois. In both States the Voting Section allowed local
jurisdictions to mail absentee ballots to service members in
overseas locations less than 30 days before the election, even
though they are well aware of the fact that mail to forward
deployed locations can take 30 or more days.
The flawed nature of these agreements, especially in New
York, became very clear after the election. Of the more than
5,000 military ballots that were turned by New York in 2010, 30
percent of those ballots were rejected in New York,
notwithstanding the settlement agreement reached by the
Department of Justice.
Finally, and it can't be overemphasized, all of these
agreements fail to address the source of the problem. That is,
local election officials have not or will not comply with the
law. When local election officials like the ones recently in
Wisconsin fail to send out ballots or fail to answer simple
questions about whether they mailed out ballots and there are
no consequences for that refusal to comply with simple law,
then those violations will continue to occur time and again.
Ultimately, for our men and women in uniform to have any
hope of having their voices heard on election day, then the
Voting Section has to aggressively enforce the MOVE Act, has to
do so in a timely manner, and has to ensure that the remedies
fully protect their voting rights.
Thanks again for the opportunity to testify today, and I
look forward to any questions that the Committee Members have.
Thank you.
[The prepared statement of Mr. Eversole follows:]
__________
Mr. Franks. And I thank you, Mr. Eversole.
Professor Weiser, you are recognized for 5 minutes.
TESTIMONY OF WENDY WEISER, DIRECTOR OF DEMOCRACY PROGRAM, NEW
YORK UNIVERSITY SCHOOL OF LAW
Ms. Weiser. Thank you, Mr. Chairman and Members of the
Subcommittee, for this opportunity to testify.
This is a critical time for voting rights in America, and
the Department of Justice has a critical role to play. I will
make three points today.
First, as Chairman Conyers noted, the past 2 years have
seen a massive wave of new State laws making it harder for
eligible American citizens to vote. Overall, 22 new State laws
and two executive actions have been put in place in 17 States
restricting voting. These range from requiring certain forms of
photo identification to vote, to making it harder to register
to vote, to cutting back on early voting, among other things.
This is the biggest setback in voting rights in decades and an
abrupt reversal of the longstanding trend in American history
to expand access to the franchise. Millions will be affected,
and some will be especially hard hit: minorities, the poor,
people with disabilities, students and older Americans.
Second, the Department of Justice has a critical role to
play with respect to these new laws. Under the Voting Rights
Act, States with a history of discriminating in voting must get
pre-clearance from the Department or a Federal court before
implementing changes to their voting laws. States have the
burden to show that their new laws will not discriminate
against minorities, and the Department must review the evidence
and make a determination as to whether States have met that
burden. And that is exactly what the Department has been doing
with respect to these new voting restrictions: applying the
law, nothing more, nothing less.
It has appropriately found that Florida, Texas, and South
Carolina have not met their burden of showing that their new
laws won't discriminate against minorities. And the Brennan
Center is in fact involved in those matters. The new law in
Florida has made it so hard for civic groups to register fellow
citizens to vote that the League of Women Voters and groups
across the State have shut down their voter registration
drives. And this especially hurts minorities, who register at
voter registration drives at twice the rate of White citizens.
Florida also cut back on Sunday early voting, which was used
especially by African American and Hispanic churches.
New strict photo ID laws in both Texas and South Carolina
also disproportionately harm minorities. Texas' own data show
that as many as 795,000 registered voters--that is not just
eligible but registered voters--do not have State photo IDs,
and Latino citizens are between 46 percent and 120 percent more
likely than White voters to lack those IDs.
A quick word on voter ID laws. There may be disagreements
about voter ID as a policy matter, but everyone should agree
that voter ID laws should not gratuitously disenfranchise
voters. Unfortunately, that is what many of the new laws we are
seeing this year do. They are far more restrictive than the ID
laws of the past, limiting the forms of ID that will be
accepted, cherry-picking the IDs that certain groups may not
have, and eliminating exemptions and fail-safe protections for
voters who don't have IDs.
These aren't reasonable ID laws. They require IDs that 11
percent of eligible Americans don't have, and those who
participate in primaries are disproportionately among those who
do have those IDs. And these laws don't have a way for people
without IDs to verify their identities and to vote, as Virginia
Governor Bob McDonnell just complained when he sent back a bill
in that State last week.
I should add that Section 5 of the Voting Rights Act is not
the only law that these new restrictions may run afoul of. Just
yesterday, for example, the Ninth Circuit Court of Appeals
ruled 9-2 that a law in Arizona that requires proof of
citizenship to register to vote violates the Federal Motor
Voter Law.
Third, in contrast to these controversial new voting laws,
there is a commonsense bipartisan solution that would actually
improve the integrity of our elections and public confidence:
modernizing our ramshackle voter registration system. As Mr.
Adams noted in his written testimony, the voter rolls are a
mess. A Pew Study recently found that one in four eligible
Americans are not registered to vote and that one in eight
voter registration records have serious errors.
Better enforcement of the NVRA, including Section 7 and
Section 5, would certainly help, but the real problem is that
in most of the country we still rely on an antiquated, error-
prone, paper-based voter registration system. Congress can help
the States bring our voting system into the 21st century by
passing a law to modernize voter registration across the
country. This would add millions of eligible voters to the
rolls, increase accuracy, reduce opportunities for fraud and
abuse, and cut costs. It is a solution everyone can get behind.
Thank you very much.
[The prepared statement of Ms. Weiser follows:]
__________
Mr. Franks. Thank you, Professor Weiser.
Mr. Adams, you are recognized for 5 minutes, sir.
TESTIMONY OF J. CHRISTIAN ADAMS, ATTORNEY,
ELECTION LAW CENTER, PLLC
Mr. Adams. Thank you.
Chairman Franks, Ranking Member Nadler, and Members of the
Committee, thank you for this opportunity to testify.
Free and fair elections are the cornerstones of our
constitutional Republic. The Department of Justice has a long
and admirable role in securing the right to vote free from
racial discrimination. Ahead of the November, 2012, election, I
can report on some encouraging developments regarding the
Justice Department's enforcement of voting laws as well as
several discouraging ones.
An area where the Justice Department deserves some praise
is in the relatively smooth redistricting process after the
2010 census. Some of this is attributable, of course, to States
going to court for approval instead of only to the Voting
Section. This was a calculated strategy by the States. Because
in the 1990 redistricting cycle, for example, the Justice
Department was forced to pay out nearly $2 million in court-
imposed sanctions for lawyer misconduct during the
redistricting process. Some of the lawyers and staff who worked
on those cases which were the subject of sanctions are still at
the Justice Department, and States have understandably sought
to bypass the administrative process and go straight to Federal
court.
Unfortunately, there is some troubling behavior from the
Justice Department. First, let me note that it is a false
perception that the Obama administration has more vigorously
protected minority voting rights than the Bush administration.
The numbers prove otherwise. The current Justice Department is
woefully lacking in enforcing Section 2 of the Voting Rights
Act. Section 2 of the Act is the broad prohibition on racial
discrimination in elections.
While the Bush administration vigorously enforced Section
2, enforcement under the Obama administration has flatlined. In
fact, the current Administration has failed to initiate a
single Section 2 investigation which resulted in an enforcement
action since taking office.
Loud critics of the Bush administration claim that
enforcement of Section 2 during that time was lacking, when in
truth it was vigorous. The Bush administration filed multiple
Section 2 cases to protect national racial minorities. In fact,
if you include all Section 2 cases to protect national racial
minorities, the Bush administration filed 14 cases. Again, the
Obama administration has filed exactly one, and that is a case
against Lake Park, Florida, a matter which I brought which was
launched during the Bush administration and filed in March of
2009.
In response to criticism for failing to enforce Section 2,
this Justice Department has recently adopted a curious new
public policy position saying that they have initiated a record
number of Section 2 investigations. This is in fact a public
relations sham, and I describe how in my written testimony.
These investigations do not even reach the preliminary
point of whether it is possible to draw a minority-majority
district in most cases. Numbers can't lie. Not a single case
has been filed by the Obama administration since the Lake Park
case in March of 2009, a case which I brought and the Bush
administration started.
A couple of other points are important about voter ID to
understand. The Department's use of Section 5 to block election
integrity measures has now taken place in numerous examples.
The first example was in 2009 when a Section 5 objection was
entered to stop Georgia's law that required that only citizens
be registering to vote. The most recent example, of course, is
in South Carolina and Texas with voter ID.
Under the interpretation by this Justice Department, unless
the States can prove an absolute absence of the slightest trace
of disparate statistical impact, then the DOJ will object to
voter IDs in covered States. Mississippi and Virginia should
take careful note. For example, in the South Carolina voter ID
law, 90 percent of African Americans were shown to have photo
ID and 91.6 percent of Whites.
Justice refused to consider as determinative the practical
safe harbors contained in the voter ID statutes. In South
Carolina, for example, the State would provide free rides to
State offices to obtain free voter ID. Voters would even be
allowed to cast a ballot on Election Day if they didn't have ID
if they filled out an affidavit saying they had a reasonable
impediment to obtaining voter ID and swearing to their
identity. The burden was on the State to prove the affidavit
was false.
I believe it is unlikely that the courts will permit such
an unreasonable interpretation of Section 5 of the Voting
Rights Act. If the courts do, however, then Congress must step
in and examine whether Section 5 should be amended so the
Justice Department cannot in these circumstances block
implementation of State election laws designed to ensure
election integrity.
Thank you very much.
[The prepared statement of Mr. Adams follows:]
__________
Mr. Franks. Thank you, Mr. Adams.
I want to thank all of you for your testimony, and I will
now begin the questioning by recognizing myself for 5 minutes.
Mr. Eversole, there are approximately 2 million military
voters; and hundreds of thousands of those, of course, have
been deployed throughout combat zones across the world. And as
they risk spilling their blood to defend their country, it is
clear to me that their Justice Department is failing to ensure
that they can exercise their right to vote.
In 2010, only 4.6 percent of military voters were able to
cast an absentee ballot that counted, and only 5.5 percent
could do so in 2006. The total military voter turnout for 2010
was just 11.6 percent. By contrast, the national voter
participation rate in 2010 was 41.6 percent.
So, Mr. Eversole, how is the Department of Justice failing
to ensure the deployed members of the military can cast their
legal vote for their commander in chief?
Mr. Eversole. Thank you, Mr. Chairman.
At the very beginning, they have to make sure to conduct
timely investigations when those ballots are supposed to go
out, 45 days before the election. You can't wait one or 2 weeks
after that 45-day deadline to start your investigation and then
take two or three more weeks to conduct the investigation and
file an action, like they did a couple months ago or a month
ago in Alabama 18 days before the election. When you settle
cases 18 days before the election, that timeframe provides
very, very limited remedies, if any at all, other than adding
some days, and it prevents service members, especially those
serving on the front lines, the ones who need the most time, an
opportunity to get their ballots. So that is where it starts.
Then once you have a case you have to make sure that your
remedies actually protect the service members. The New York
case was atrocious in 2010 where 30 percent of the service
members, notwithstanding a Department settlement agreement,
were still disenfranchised under the Department's agreement.
Those voters were abandoned, and it has to do better on that
end as well.
Mr. Franks. Thank you, Mr. Eversole. It does seem to me
like one bipartisan conclusion should be that those who are
dying to protect this country and this Republic should see
their constitutional right to vote protected by this Republic.
Let me, if I could, go to you, Ms. Mitchell. You know, you
formulated a pretty compelling argument the DOJ is aggressively
trying to block State efforts to protect against election
fraud, and it reminds me of DOJ's efforts to block State laws
cracking down on illegal immigration, in a sense, because it
almost seems that, instead of enforcing the law without fear or
favor, the Obama Justice Department is spending a lot of time
making sure laws it doesn't like do not get enforced by anyone.
And the recent Rasmussen polls show that the overwhelming
majority of Americans support voter ID laws as necessary and
nondiscriminatory. Why do you think DOJ is insisting on
fighting the American people on this issue?
Ms. Mitchell. Well, Mr. Chairman, that is the $64,000
question. I don't understand how it is possible for anyone to
object to the simple practice of showing identification to
demonstrate that you are who you say you are when you go vote.
That polling place that we saw on that videotape is where I
vote. It is across the street from where I live.
I mean, I got from the District of Columbia my new voter
registration card. It is on a piece of typing paper. One of our
RNLA members lives in the District of Columbia, and she got
five of them, five different names sent to her apartment. Now,
if she were not an honest person, she could just walk in and
pretend to be each one of those people.
And what mystifies me is why anybody would oppose simple
procedures that will protect the integrity of our election. And
what is troubling is that the Justice Department, rather than
taking steps as a law enforcement entity, an agency, and as our
chief law enforcement officer Eric Holder should be out among
the public saying we are going to publicize what their election
crimes manual says, we are going to prosecute vigorously
election crimes, they are not doing any of that.
And it just strikes me that when you have the Pew
Charitable Trust report to which Dr. Weiser referred where 24
million--one of every eight--voter registrations is either--it
says either no longer valid or significantly inaccurate, where
you have 1.8 million deceased individuals listed as voters, you
have 2.75 million people who have registered in more than one
State, the simple act of producing an ID to say that you are an
authentic, eligible voter under the law seems to me completely
reasonable, and that is what the law of the land is. The
Supreme Court has upheld that; and our Attorney General, our
Justice Department should be enforcing that.
Mr. Franks. Thank you, Ms. Mitchell.
And I would now recognize the distinguished Ranking Member,
Mr. Nadler, for 5 minutes.
Mr. Nadler. Thank you.
First, I never want to impugn the integrity of our
witnesses, so I will presume that Mr. Eversole was not aware of
what I am about to say. Because he told us that the Justice
Department refused to enforce the law for military ballots in
New York and let New York get away with 30 days when that
wasn't enough time.
The fact is the Justice Department sued the State of New
York, resulting in a Federal court decision that ordered the
primary in New York moved from September to June in order to
enforce the 45-day law. It was the Republican majority in the
State Senate that refused to move the State primary because
Congress only has jurisdiction over Federal elections.
So that we now have a primary in June for Congress and for
U.S. Senate in order to comply with the 45-day law because the
Justice Department brought suit, and the State lost in court,
in Federal court, but we have a September primary for State
elections because the Republican majority in the State,
apparently not caring about enforcing the law on 45 days,
refused to move the State primary to match the Federal primary.
So we are going to waste $50 million.
So don't tell me or this Committee or anybody else that
the--at least in New York, that the Federal--the Justice
Department hasn't enforced that provision. They brought suit
against the State of New York, they won the lawsuit, and the
Federal court ordered the primary moved from September to June
for that reason. And since I am running in that June primary, I
know the facts.
Thank you.
Ms. Weiser--Professor Weiser, I am sorry--no, that wasn't a
question. It was a statement of fact. I will give him a
question to answer if none of this will count toward the 5
minutes.
Mr. Franks. You have got it.
Mr. Nadler. Thank you. Mr. Eversole?
Mr. Eversole. Well, you know, 1,700 ballots were rejected
in New York, so they brought an action in 2010. 1,700--more
than 1,700, I think it was 1,789 military voters were denied
their ballot, notwithstanding the settlement agreement that the
Department of Justice brought. Those ballots were thrown in the
trash.
Mr. Nadler. In your testimony, you didn't bother mentioning
the Justice Department then sued the State of New York.
Mr. Eversole. You are right. They did recently sue the
State of New York. That is a factual matter. But, again, they
allowed for a remedy here that does not require----
Mr. Nadler. So the remedy--so the truth is, then--so the
truth would be, I think you and I would agree, although I don't
know the facts about the first step, but assuming what you are
saying is true, the facts would be that for the 2010 election
they did not act adequately, but they corrected it for the 2012
election, brought suit, did not reach a consent decree, won the
lawsuit, and moved--and the court ordered the primary moved.
You didn't bother mentioning this to the Committee.
Mr. Eversole. Well, and that is a fair point. But the point
I would also make that I think needs to be made very clearly is
that they did not protect those military voters in the State
race, and there is a 2010 decision in the district of Maryland
that says that when you deprive a service member of their State
rights, their State right to vote, that that is a
constitutional violation.
Mr. Nadler. Well, except that the fact is that they--that
the Justice Department, I believe, argued for that in the
Federal court, and the Federal court ruled otherwise. The
Federal court said that they had no jurisdiction to order the
State to move the State primary.
Mr. Eversole. Okay.
Mr. Franks. Mr. Nadler, you are back on the clock here.
Mr. Nadler. Thank you.
Ms. Weiser.
Mr. Franks. He did mention in his testimony exactly as you
have said.
Mr. Nadler. I am sorry?
Mr. Franks. It is in his written testimony exactly as you
have said.
Mr. Nadler. Okay.
Professor Weiser, Ms. Mitchell said that the Attorney
General's cases against voter ID laws lack merit on the law. Is
that correct?
Ms. Weiser. Absolutely not.
I should start by noting that the Crawford case that has
been mentioned a number of times has no bearing on the Voting
Rights Act cases that the Department is currently involved in.
That was a constitutional action against Indiana's voter ID law
before the law had ever been put in place, and it did not
involve allegations of discrimination on the basis of race.
Right now, under the Voting Rights Act, what the Department
is required to look at is whether or not the States have met
their burden of showing that these laws will not harm
minorities. The evidence that the States themselves put forward
show that minorities will, in fact, be disproportionately
harmed by these laws and that tens and in some cases hundreds
of thousands of minority voters who are already registered to
vote won't be able to vote under the laws in place.
Mr. Nadler. Now, Ms. Weiser, there is, I believe, in Texas
or in some States the voter ID laws prevent use of the State-
issued student ID for college that is necessary to get the in-
State tuition rate. So, in other words, to protect their own
fisc I presume that they are pretty serious about making sure
they give a State ID card and a State University ID card only
to a State resident.
Ms. Weiser. Uh-huh.
Mr. Nadler. And this is specifically precluded from being
used as a voter ID, but gun-carrying registrations are allowed.
Is there any justification in terms of accuracy? In other
words, is it harder to get a gun card than--do you have to
prove your residency more to get a gun registration than you do
to get an in-State student voter? Is there any possible
justification for this, other than the fact you don't like
student voters and you like hunters?
Ms. Weiser. There are certainly different requirements for
obtaining student IDs and for obtaining the concealed handgun
licenses. Both of them, though, are fairly rigorous, and both
of them require--look at a variety of pieces of evidence. So
there really is no justification for this kind of cherry-
picking.
Most earlier photo ID laws that have been passed in the
past recognize all forms of State-issued photo IDs, including
student--State-issued student photo IDs, State-issued
employment IDs. These kind of IDs are now being excluded by the
laws that we are seeing this year and for no good reason.
Mr. Nadler. Has there any reason been stated?
Ms. Weiser. I am not aware of any good reason that has been
stated.
Mr. Nadler. Thank you.
Could you finally--before my time runs out, could you
elaborate on how voter ID laws disenfranchise certain classes
of voters?
Ms. Weiser. Yes. Pardon me?
Mr. Nadler. Could you elaborate on how these voter ID laws
disenfranchise certain classes of voters?
Ms. Weiser. Certainly.
The evidence is and all--study after study shows that
minorities, young people, low-income people are far less likely
to have the kinds of State-issued photo IDs required by these
laws. This has been confirmed repeatedly. And even in the few
elections where photo ID laws have already been put in place,
there have been a number of people who have been denied the
right to vote, some even mentioned by Ms. Mitchell today. But
there have been thousands of provisional ballots cast across
the country by people who did not have a photo ID at the polls
and countless more people who didn't show up because they
couldn't meet those requirements, and I would be certainly
happy to provide more information to the Committee on that.
Mr. Nadler. Thank you.
Mr. Franks. I now recognize Mr. King for 5 minutes.
Mr. King. Thank you, Mr. Chairman.
I apologize, I slipped in here a little bit late after you
had opened your opening remarks, and I missed that video, and I
would ask if they could run that video again, at least for my
benefit.
Mr. Franks. Absolutely.
Mr. Conyers. Mr. Chairman, I will not object.
Mr. Franks. The Chairman appreciates that.
It is the gentleman's time, I believe, anyway.
[Played video]
Mr. King. Thank you, Mr. Chairman. I thank staff for
queuing that up for me again.
I am shocked that the Attorney General isn't shocked. I am
shocked that the Attorney General hasn't offered a response to
this in a meaningful way.
I sit in this Committee, and I have a friendly relationship
with the former Chairman of the Judiciary Committee. And I
remember and he will remember me presenting an acorn to him
about 2007 asking for hearings on ACORN, and we had a good
discussion on that. We had private meetings working that to try
to get that done.
I remember the gentleman from New York, Mr. Nadler, say
before this Committee that he thought it would be a good idea
to investigate ACORN and walk that back some subsequent to that
time. But it would have been a good time to investigate ACORN.
It took a James O'Keefe to get this ACORN issue brought
before America, and I carry this acorn in my pocket every day
to remember what happens to the foundation of American liberty
when you have corrupt elections, when you have elections and
votes that are being disenfranchised by fraudulent votes.
Mr. Nadler. Mr. Chairman, point of personal privilege.
Mr. King. We can suspend the clock.
Mr. Franks. We will suspend. Please, sir.
Mr. Nadler. I don't believe I ever at any time said that I
thought it would be a good idea to hold a hearing on ACORN. I
did not, and I do not think that. I said at the time, if memory
serves, that I would be happy to hold a hearing if credible
evidence were developed that would justify that, but I never
said it would be a good idea to hold a hearing on ACORN.
Mr. Franks. Has the gentleman reconsidered since?
Mr. Nadler. I have not.
Mr. Franks. Okay, just wanted to make sure.
Mr. King. I think I am reclaiming my time that I didn't
lose, and I will acknowledge the clarity that is in the memory
of Mr. Nadler. However, it gave me a high degree of optimism
that we would do the investigation that we needed to do and
should have done. And at that point if there had been a follow-
through on the part of the then majority we would have had a
bipartisan approach to cleaning up corruption in elections.
We did not get that. Instead, we got a waived vote on the
floor of the House and the Senate that shut off all funding to
ACORN itself, and so that has to be a part of the thought
process that we are looking at at corrupt elections. And they
admitted to over 400,000 false or fraudulent voter
registrations, and there have been multiple prosecutions for
fraud, as Ms. Mitchell said. And so I would turn my----
Maybe I do have a couple other narratives quickly. And that
is I went to Massachusetts for Scott Brown's election, 3 days,
and I went into the voting booth or into the voting area in a
Vietnamese region in Boston. And there a fellow came up that
did not speak English. They asked him who he was, and they
couldn't understand the name that he was giving. They turned
the voting rolls around and said, which one are you? He picked
one and went in and voted. That is just a snapshot of what goes
on in the polls in America.
We have had the witness or the Secretary of State of New
Mexico before this Committee, and when I asked her--this is
several years ago--when I asked her, if I am working the voting
area in New Mexico and I am a registered voter and I decide I
am going to vote when I leave my shift and someone walks in and
says they are Steve King, can I stop them? Can I challenge
them? Answer, no.
So on down to Venezuela, if you want to go vote for Hugo
Chavez, you have to show a picture ID.
In my short time that I have remaining, I would like to
direct my question to Ms. Mitchell. In the States you have
listed in your testimony, the 10 States--it starts with Iowa
and it ends with Florida--can you tell me whether it is the
Attorney General or the Secretary of State that is moving these
actions for voter fraud and what the political affiliation
would be of those who are advocating cleaning up the voter
fraud that is taking place in America?
Ms. Mitchell. No, Mr. King, I don't know the partisan
affiliation. But what I can tell you is that they are State and
local authorities, both election officials and local law
enforcement or district attorney. There is not a single
instance where the Department of Justice is assisting in the
prosecution. And that is one of the things that is disturbing
to me, is that it is convenient, isn't it, to announce that--to
not prosecute these cases of voter fraud or election crimes and
then to announce there are none. That to me is quite
convenient, and I think that is what this Committee needs to
ensure does not continue to happen.
Mr. King. I thank the witnesses, and I yield back the
balance of my time.
Mr. Franks. Thank you, Mr. King; and I will not overlook
you this time, Mr. Conyers. You are recognized for 5 minutes.
Mr. Conyers. Thank you, Mr. Chairman.
May I have unanimous consent to put in the Election
Protection--You Have the Right to Vote document?
Mr. Franks. Without objection.
Mr. Conyers. Thank you.
[The information referred to follows:]
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Mr. Conyers. Now, we have a serious set of problems about
voting, and we need to do as much about it as possible. But it
is hard for me to imagine that the Attorney General of the
United States, the chief law enforcement officer, Eric Holder,
is somehow laying down on the job about getting people
registered and able to vote more easily and to have--to ensure
that their votes are counted.
What we are in need of in this Committee is to have a
hearing that examines the number of laws that significantly
impact access to voting, and that is the presentation of voter
ID, and I am going to ask our attorney, Ms. Weiser, to expand
on why some of these forms of identification are, in fact,
restrictive.
Second, that we don't have any massive fraud problems. We
have no record of people voting in great numbers who should not
be voting. And then there is this old scheme going on in many
States to eliminate early voting opportunities, same day
registration, and even registering people to vote. I think
these are the kind of problems that this Committee could do
much more with, and I am going to ask the Chairman and the
Ranking Member to join me and Chairman Smith in additional
hearings in this area.
I would like now to yield to our distinguished witness.
Ms. Weiser. Thank you. Thank you, Mr. Chairman.
As I noted, the ID laws that we have seen passed this year
are far more restrictive than the ones we have seen in the
past, and they ask for IDs that 11 percent of Americans,
largely minorities, younger voters, older voters, people with
disabilities, the poor, do not have. The fact that 73 percent
of Americans might think this is a good idea is not surprising,
when 89 percent of them actually have these forms of IDs, but
we do not allocate--but this kind of support is not a good
enough reason to exclude the 11 percent of people who do not
have those IDs. That is not what constitutional rights or the
Voting Rights Act are for.
And I should note that, despite what has been said, the
reason, the justification put forward for these laws is one
that is actually nonexistent. The kind of voter fraud that
these laws address, in-person impersonation fraud, has been
shown investigation after investigation, study after study to
be virtually nonexistent. An American is more likely to be hit
by lightning than to commit this kind of voter fraud.
And it is not because people have not been looking or
because the Department of Justice has not made this enough of a
priority. From 2002 through 2005, this was, in fact, a top
priority of the Department of Justice to investigate and
prosecute voter fraud. And what they came up with is 38
possible cases and only one that involved in-person
impersonation fraud over hundreds of millions of votes cast. So
this is really something that we already have good laws in
place that prevent this.
Mr. Conyers. Professor, do you have any view of Crawford v.
Marion that we need to clear up in this discussion before the
Subcommittee today?
Ms. Weiser. Well, certainly I should add that the Crawford
case did not hold that voter ID laws generally are
constitutional or that they are not discriminatory. What the
Crawford court said is that the Indiana law on the record, the
very limited record before it, before the law had ever been put
in place, could not be invalidated on its face. The plaintiffs
had to come back if they wanted to and actually show that the
law, as applied in real life, would actually discriminate or
would actually disenfranchise eligible voters before the Court
would actually consider that kind of challenge. So it actually
made no pronouncement about the legality under the Constitution
or any other law of voter ID laws in particular as applied in
the real world.
Mr. Conyers. Thank you. And thank you, Mr. Chairman.
Mr. Franks. Thank you, Mr. Conyers.
I would now recognize Mr. Scott for 5 minutes.
Mr. Scott. Thank you, Mr. Chairman.
Ms. Weiser, following up on that, there appears to be a
difference in challenges whether you are a noncovered State in
a constitutional challenge in free clearance under section 5.
In the Crawford case that you have indicated there was no
evidence of a discriminatory effect, and if you don't know one
way or the other, what happens to a constitutional challenge?
Ms. Weiser. In a constitutional case, you need to actually
prove--you need to prove the discriminatory intent. In the
Voting Rights Act, the burden is on the State.
Mr. Scott. And if there is no--if you don't know one way or
the other, you lose the constitutional challenge?
Ms. Weiser. That is correct.
Mr. Scott. But the State does not carry its burden to show
that it is not discriminatory, so it cannot be precleared if
nobody knows. Is that right?
Ms. Weiser. That is right.
Mr. Scott. And the covered States, the covered--isn't it
true that the covered States are covered the old-fashioned way,
they earned it?
Ms. Weiser. Certainly they covered--this Congress amassed a
very extensive record in 2006 demonstrating that the States
that are covered under section 5 of the Voting Rights Act still
have a problem of discriminating against minorities in voting
and still merit coverage under that law.
Mr. Scott. Thank you.
Ms. Mitchell, you mentioned somebody that got multiple
voter cards, presumably because people didn't bother to change
address, and they all got sent to the same person. Are you
suggesting that we need procedures to protect against somebody
showing up multiple times in the same precinct, claiming to be
different people in the same precinct? Is that something we
need to concentrate on?
Ms. Mitchell. I think whatever steps we can take to ensure
the integrity of the election is appropriate.
Mr. Scott. You are not suggesting that somebody showing up
multiple times in the same precinct is a problem?
Ms. Mitchell. You think that that can't happen? I
absolutely believe it can happen. These polling places are
chaotic.
Mr. Scott. Okay. Somebody showing up multiple times in the
same precinct is a problem that needs a focus.
Can you tell me the process, Ms. Mitchell, of obtaining an
ID sufficient to comply with voter ID laws, what the process is
if you don't have an ID?
Ms. Mitchell. If you do not have an ID, it varies from
State to State. But I can tell you that in most of these
States, generally speaking, certainly in the case of South
Carolina and in the case of the Virginia law that is pending at
the moment, in most of these cases, there are alternatives. You
can cast provisional ballots. The States will issue free IDs,
will provide transportation to obtain the IDs.
Mr. Scott. Okay. What is the process? What documents do you
need?
Ms. Mitchell. To be able to get an ID? I do not know the
answer to that question. You go and have your photograph taken
at a----
Mr. Scott. Are you a lawyer?
Ms. Mitchell. I am, but that varies from State to State.
Mr. Scott. Okay.
Ms. Mitchell. So which jurisdiction are you asking about?
Mr. Scott. Well, maybe that is the point. If you don't have
an ID, you don't even know where to--a lawyer doesn't even
know, can't even articulate where you would start.
Ms. Mitchell. Well, different States would have different
requirements. For instance, if you move into the District of
Columbia--when I moved into the District of Columbia, you can
present a utility bill, you can present a copy of a--you can
show your check, a checkbook that has your name on it, you can
show a lot of different kinds of information.
Mr. Scott. But that is not a photo--that is not with your
photo ID.
Ms. Mitchell. No, that is in order to obtain your photo ID.
Mr. Scott. You can get a photo ID sufficient with a utility
bill?
Ms. Mitchell. In most jurisdictions, yes.
Mr. Scott. Okay. How do you prove your citizenship?
Ms. Mitchell. Well, the Federal law requires that you have
to have a birth certificate or a passport. And, actually, it is
the Federal law today, as enacted by Congress in 1986, that in
order to get a job every employer in this country is supposed
to require two forms of proof of citizenship.
Mr. Scott. Ms. Weiser, can you explain how long it takes to
get some of these documents and some of the problems? Like if
you were adopted or if you are old and no hospital records are
available and if your name doesn't agree with the birth
certificate, like you were married or divorced or something,
what kind of complications can occur and how long it can take
to get an ID?
Ms. Weiser. Certainly. Ms. Mitchell is correct that the
requirements for obtaining photo ID do vary State by State, but
in virtually every State a birth certificate is required, and
that is something that certainly has caused a lot of problems
for many potential voters seeking to get IDs.
There was a highly publicized case of a 96-year-old woman,
Dorothy--I forget her last name--from Tennessee who did not
have a copy of her birth certificate and was unable to obtain
photo ID in order to vote, and she had been voting for 70
years. This is something that many individuals get caught up in
a catch-22 of needing a birth certificate to get a photo ID,
and of needing a photo ID in order to get a birth certificate
issued, as one example.
Many States certainly do not have expedited procedures for
people to get photo IDs. There is a lot of processing that goes
into that, and that could also create a lot of snafus for
people seeking to vote, as another example.
Mr. Scott. How long can this take?
Ms. Weiser. I don't know the range of time, but I am happy
to provide that in writing after.
[The information referred to follows:]
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Ms. Weiser. And I should also add that the documents that
are required to obtain photo IDs that are supposedly free now
in the States that are requiring them typically cost money and
typically are not made available for free, with the single
exception of the Kansas birth certificate, which now can be
made available for free. And so these IDs will also create
financial burdens for those seeking to obtain them simply for
voting.
Mr. Scott. And so it doesn't prevent you from voting, it
just puts a little barrier. So you can't identify a single
person who was denied the right to vote. But if you are trying
to register--if a thousand people are trying to register, a lot
of them are just not going to get their paperwork in on time to
be able to register and show up to vote; is that true? Some of
them----
Ms. Weiser. That certainly sounds accurate. But there are
also many people who, no matter how hard they try, are still
unable to obtain photo IDs, even those who think about it
months and months in advance of the election. So, for some
people, it is actually an absolute barrier as well.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Franks. And thank you, Mr. Scott.
Without objection, the Chair would submit for the record an
article by Hans von Spakovsky, Every Single One: The
Politicized Hiring of Eric Holder's Voting Section. I commend
it to your reading.
[The information referred to follows:]
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Mr. Franks. And without objection all Members will have 5--
--
Mr. Nadler. Mr. Chairman.
Mr. Franks. Please.
Mr. Nadler. I ask to be recognized for two unanimous
consent requests.
Mr. Franks. Please.
Mr. Nadler. First, Mr. Chairman, I ask unanimous consent to
place in the record the recent Third Circuit Court of Appeals
decision in RNC versus DNC rejecting the RNC's motion to get
out from under the 1982 consent decree barring the RNC's--that
is Republican National Committee's--historic practice of voter
intimidation and disenfranchisement. The court said the
continuation of the consent decree was still necessary. I ask
unanimous consent this be placed in the record.
Mr. Franks. Without objection.
Mr. Nadler. Thank you.
[The information referred to follows:]
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Mr. Nadler. I also ask unanimous consent to say that I
have, since speaking earlier, read Mr. Eversole's prepared
testimony, and in his prepared testimony he does reference the
2012 decision of the court, the Federal court in New York, so
what I took to be his misleading testimony was--it was
misleading but only by omission of what was in the written
record. So I want to acknowledge that he was in his written
testimony completely honest and complete.
Mr. Eversole. Thank you.
Mr. Franks. Thank you, Mr. Nadler.
Without objection, all Members will have 5 legislative days
to submit to the Chair additional written questions for the
witnesses which we will forward and ask the witnesses to
respond as promptly as they can so that their answers may be
made part of the record.
Professor Weiser, we will be forwarding you questions from
my office related to the claims of 11 percent of the people. We
don't know if that includes incapacitated people, incarcerated
people, former felons, those 60 percent who decide not to vote
at all. So we will be forwarding that.
And without objection all Members will have 5 legislative
days within which to submit any additional materials for
inclusion in the record.
With that, again, I thank the witnesses sincerely for
coming, thank the Members and observers, and this hearing is
now adjourned.
[Whereupon, at 10:30 a.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Material submitted by the Honorable Trent Franks, a Representative in
Congress from the State of Arizona, and Chairman, Subcommittee on the
Constitution
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__________
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Material submitted by the Honorable Jerrold Nadler, a Representative in
Congress from the State of New York, and Ranking Member, Subcommittee
on the Constitution
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Response to Post-Hearing Questions from Cleta Mitchell, Partner,
Foley & Lardner
Post-Hearing Questions submitted to M. Eric Eversole, Director,
Military Voting Project
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Note
July 31, 2012: In reply to follow-up requests to respond to the
post-hearing questions for the record, Mr. Eversole opted to
decline to respond to these questions.
Response to Post-Hearing Questions from Wendy Weiser,
Director of Democracy Program, New York University School of Law
Response to Post-Hearing Questions from J. Christian Adams, Attorney,
Election Law Center, PLLC
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Note
July 31, 2012: In reply to questions for the hearing record,
Mr. Adams' responses would be identical to those of Ms.
Mitchell's. Please refer to Ms. Mitchell's responses and the
attachments submitted with her response.