PREPARED REMARKS OF
ASSISTANT ATTORNEY GENERAL WAN J. KIM
TO NASS/NASED
7/12/2006

                   

          Good morning.   My thanks to your President, Sam Reed, and to your Executive Director, Leslie Reynolds, for inviting me to speak today.  Sam and Leslie have done an excellent job in promoting an open and productive dialogue between the Department and the States.  We appreciate their efforts.

          I’m really delighted to be here today and I look forward to working with all of you as we engage in the important business of the people.  Please allow me to begin by telling you a little bit about the organization that I am privileged to head.  The Civil Rights Division was founded in 1957; next year, we celebrate our 50^th Anniversary.  Much has changed since we were first formed nearly a half-century ago with a staff of only a few dozen dedicated public servants.  Today, we have some 700 employees, including about 350 attorneys.  But our core mission has never changed: the Civil Rights Division exists to protect and preserve the equality of opportunity afforded to every American. 

          Not surprisingly, the protection of voting rights has always played a central role in what we do.   In a democratic society, there is no right more fundamental and important than the right to vote – a right that the Supreme Court has characterized “preservative of every other right.”  Abraham Lincoln remarked that “ballots are the rightful and peaceful successors to bullets.”  The Civil Rights Division has been privileged to enforce the landmark Voting Rights Act since its passage in 1965, a law that has been hailed as the most effective civil rights legislation every enacted.  Both the President and the Attorney General have been strong supporters for reauthorization of the provisions of the Voting Rights Act that are due to expire next summer.  The Administration’s position on reauthorization of the Voting Rights Act is in keeping with its strong overall commitment to voting rights, as evidenced in acts such as our record levels of enforcing the language minority provisions of the Voting Rights Act, the record number of federal observers that we have dispatched to ensure voter access to the ballots, and the creation of a national conference each year on ballot access and ballot integrity.  We are grateful that you – the state and local officials who play the central role in securing the voting rights of Americans – are such valuable partners in these nationwide efforts.

          I’d like to now speak with you in a little more detail about three things.  First, I want to stress that the Department of Justice views the Help Americans Vote Act as a priority.  As everyone always says, HAVA’s goal is to make it “easier to vote and harder to cheat.”  We understand that state election officials face a number of unique challenges this year, but I know that we all agree on the importance of this underlying goal. 

          Second, I want to discuss compliance with other federal laws, including the National Voter Registration Act and Uniformed and the Overseas Citizens Absentee Voting Act.  These statutes likewise serve important purposes.  Properly implemented, the NVRA serves the twin goals of helping to ease voter registration and to eliminate fraud.  UOCAVA protects the voting rights of our citizens abroad, including our brave servicemen and servicewomen around the globe. 

          Finally, and perhaps most importantly, I want to underscore our willingness to cooperate with state election officials to achieve our joint goals - to have fair, accurate, and accessible elections for every voter in this country.  The Department of Justice views litigation as the last resort, not the first, and we will strive to reach a just and amenable consensus agreement whenever possible.

I.  HAVA - Challenges and Expectations

          Let me start with a well-deserved vote of confidence in the states.  As you know, HAVA and the NVRA both expand the role of the states in the election process.  Both statutes envision that the states will pro-actively monitor local election administration efforts.  With HAVA and the NVRA, Congress expected the states to provide statewide uniformity in voting and limit potential problems.  We applaud the states that have embraced that statutory command and encourage all the states to do so.

          A.  Positive Recognition for States 

          In particular, I’d like to commend a handful of states for their hard work in implementing the requirements of HAVA.  This list isn’t exhaustive – I don’t want to turn this into an Academy Awards speech – but I’d like to highlight a few of the states that have done outstanding work in relatively short time periods: Illinois, Kentucky, Pennsylvania and Texas.  Each of these states faced early spring primaries.  In the run-up to their primaries, these states’ officials realized that local elections offices were falling short in having accessible voting equipment in place, as mandated by HAVA for the 2006 federal elections.  In response, each state closely monitored the situation in each county and offered assistance as needed, such as by helping to resolve vendor problems. 

          To give you a sense of the lengths these states went to, and the extent to which some counties have attempted to hide their heads in the sand, let me tell you about one county in Illinois.  About 3 weeks before Illinois’ March primaries, the state and the Department held a conference call about the deployment of accessible voting equipment.  One county was well behind the curve in planning for how to provide the equipment.  Everyone agreed that the county had to commit to a plan, so the county was conferenced into the phone call. 

          Suddenly, this clerk from a small, rural county in Illinois found himself on a conference call with a number of people, including several attorneys from the Department of Justice in Washington.   In the course of the conversation, it became clear that county officials themselves disagreed over how to provide accessible voting equipment.  The county officials had essentially agreed to disagree – and to ignore the requirement.  Indeed, at one point the clerk commented that they didn’t think that “you guys in Washington would really notice what did, or didn’t happen in one small, Midwest county.” 

          With only three weeks to go, the state officials stepped in.  They got on the phone and located accessible equipment in a neighboring state.  By primary day, they were able to borrow enough equipment to meet the HAVA requirements for this county.  Even more impressively, even after the state had done all the hard work, the state had to monitor the clerk to make sure he deployed the equipment and trained everyone to use it! 

          The list only starts with the states that I’ve just mentioned.  States such as Florida, Maryland, Georgia, and Arizona all moved early to acquire improved voting equipment.  Ohio tackled statewide contracts for local choice on voting equipment and made its contract prices and terms public early, to the benefit of many other states and localities.  Michigan moved forward early to  acquire optical scan systems, and made the cost and procedural material publicly available for other states to use.  Still other states move quickly to define a valid vote.  Oklahoma and Puerto Rico, for example, have had specific, extensive rules in effect for many years, and Virginia put their rules for uniform vote-counting in place soon after the 2000 elections.  Finally, other states, including Arizona and South Dakota, worked very quickly after HAVA to have brand new databases up and running by the original January 1, 2004 deadline.

          In the end, these kinds of  pro-active efforts prevented a significant number of localities from failing to provide accessible voting equipment for their voters with disabilities.  We commend these and other states for their  early efforts, hard work, and foresight to improve their elections administration.  As early adopters, these states served as pioneers for the challenge of improving elections. 

          B.  DOJ Cooperation with the States

          The Department of Justice appreciates your hard work.  In turn, we have tried very hard to work cooperatively with you.  We take quite seriously our efforts to provide advice and technical assistance, particularly during the period after passage of HAVA but prior to the establishment of the Election Assistance Commission, when everyone had so many questions and no clear place to turn for answers.   For example, we want to ensure that each state adopts a uniform definition of a valid vote for each type of equipment used, and that the state clearly articulates in advance how it will count various marks.  A bare statutory statement that the standard for determining a valid vote is the voter’s intent merely punts the question until there may be a real problem and seems insufficient to meet the requirements set by HAVA.  The Department will continue to work cooperatively to help each of you obtain full compliance with the requirements of HAVA over the coming months and years.

          C.  DOJ Role as Enforcer

          Of course, the Department of Justice’s core mission is to enforce federal law.  That includes the full and timely implementation of HAVA.  Sometimes that core mission requires that we initiate litigation.  For each state and territory, we keep apprised of the status of such things as the deployment of accessible voting equipment in every precinct, a fully functioning statewide database, and linkage with the Social Security Administration for list matching. 

          Since the start of the year, the Department has filed two statewide HAVA enforcement actions.  We have initiated these suits as a last resort only when there has been significant non-compliance due to apparent state level inaction and an inability to reach an amicable agreement.  The Department has also brought three local HAVA compliance claims regarding HAVA’s election day polling place signage requirements, and in one case with HAVA’s provisional ballot requirements.

          Where states have come to us to self-identify a problem, we have tried to work with them cooperatively.  We typically ask the states to propose a reasonable plan for compliance given the individual circumstances.  Some states have achieved much progress after a substantial setback.  For example, California’s new Secretary of State was appointed to the office after the resignation of his predecessor, and found that much of the necessary HAVA planning had not been conducted.  The new Secretary of State reached out to the Department and arranged a model agreement under which California could bring its legacy voter registration database into near compliance with HAVA in a short time, while still working on a fully compliant permanent system over the longer term.

          To be candid, other states have appeared less committed to meeting HAVA deadlines when compliance challenges arise.   When the Department considers its enforcement options, it is certainly fair to take into account the state’s level of cooperation and commitment to full HAVA compliance.  We fully appreciate that states face many challenges in complying with HAVA, including, new legislation, litigation, budget constraints, small staffs, and vendor delays.  Under whatever circumstances are at play, however, we expect election officials to take significant steps to meet in good faith, and as fully as possible, the requirements that Congress passed into law almost four years ago.  We believe that the states are up to the task and we will continue to work together to meet those challenges.

II.  Other Election Law Requirements

          Although HAVA has been at the forefront of much activity given its newness, we must not forget, nor neglect, the other important federal voting laws. 

          A.  NVRA

          One key example is the NVRA and its list maintenance procedures.  The NVRA expressly establishes that states bear some responsibility for voter registration, and for ensuring, as the Act states, “that accurate and correct voter registration rolls are maintained.”  In particular, the state has a responsibility for both adding eligible voters and removing ineligible ones.  This responsibility rests with each state’s Chief State Election official.  The statewide voter registration lists are a great resource for promoting full and fair elections, but they’re a resource that must be monitored and developed.  They can only realize their potential and purpose if they are accurate.

          As many of you know, some local officials have not maintained accurate voter files.  Some voters’ names stay on these lists after the voters move to another county – and another, and another.  Some voters names stay on these lists after they die.  In fact, we have seen counties where there are more registered voters than people - not just voting age citizens, but people of all ages.  We have seen registered voter lists that include people born before the Civil War and people born as recently as 2004.  Now I’m all in favor of encouraging young voters, but I think that two-years olds should focus a little less on Pennsylvania Avenue and a little more on Sesame Street.  Of course, in some cases these may be typographical errors, but in others it is almost certainly poor list maintenance or inattention to the requirements of the statute. 

          These requirements have real consequences.  Inflated voter lists invite mischief and seriously undermine the confidence of voters in the integrity of the election process.  We all know that in an any election, every vote should count, and a few votes can tip the outcome of a particular race.

          Because of the importance of the NVRA, the Department of Justice has initiated litigation to ensure accurate voter registration lists.  Sometimes, we bring suit in part to help Chief Elections Officials do their job.  For example, we recently filed an NVRA lawsuit against the State of Indiana, where local control over voter registration lists had left the voter rolls badly overinflated.  Indiana had more registered votes than voting age population in over 20 percent of the state’s counties.  The lists contained 29,000 dead persons, and nearly 300,000 duplicates.  My hat is off to all the Indiana state officials who quickly agreed to a reasonable and effective procedures to clean up the voter registration lists, allowing us to file an agreed consent order that resolved the lawsuit.

          B.  UOCAVA

          Another statute requiring statewide oversight is UOCAVA, the Uniformed and Overseas Citizens Absentee Voting Act.  We all understand the importance of UOCAVA while America’s sons and daughters are in harm’s way.  As a former Army reservist, I feel very strongly about UOCAVA’s protections.  Our servicemembers deserve everything we can do for them, and working together, we can and will deliver for them.  We look forward to working with each of you regarding your UOCAVA activities.  Each state has the responsibility to ensure compliance with UOCAVA.

          We especially want to monitor compliance with the new requirement that those who requested ballots in 2004 also get them this year.  We also want to ensure that localities are sending out their absentee ballots on time.  States should monitor when the first absentee ballots are mailed in each locality.  If a locality is not mailing absentee ballots by September 25^th, you should know why, and when they will start to mail them.  The sooner we all know ballots will go out late, the easier it is for us to work out a solution. 

          For example, earlier this year, we resolved long-standing structural issues affecting UOCAVA voters in three states, Alabama, North Carolina and South Carolina.  These issues involved the states’ run-off elections, which were too close in time to the primary to allow UOCAVA voters to receive and return ballots.  We appreciated the prompt and willing cooperation of state election officials in each of these cases to resolve the issues. 

          We also had terrific cooperation earlier this year in Pennsylvania, which had been more closely monitored due to a consent decree.  Everyone was surprised when it appeared that a county had sent out no –  zero – UOCAVA ballots as the primary deadline approached, even though it sent a number of UOCAVA ballots in 2004.  I also want to commend officials in Texas and Illinois who also responded well to UOCAVA absentee ballot issues in their states.  Working together, we can ensure that those who serve our country abroad continue to play an active role in electing our public leaders.

          C.  Section 5

          For more than 40 years, the Department of Justice has worked hand in hand with covered jurisdictions in our Section 5 review process.   As many of you have learned, we can review a voting change very promptly when we work together.  When warranted, we have turned around submissions within 24 hours.  We have conducted particularly prompt reviews recently with Texas, which found that it had certain UOCAVA issues, with Mississippi, which found that no one had submitted a batch of voting changes until the eve of the primary election, and with Louisiana, which had to deal with Hurricane Katrina’s consequences for the New Orleans mayoral elections.  I would be remiss if I did not acknowledge the efforts of Louisiana’s election officials for pulling off a successful election there under the most trying of circumstances.

          This year, our Section 5 submission load has been huge: through April it was running at triple the normal rate.  In a normal year we process approximately 4000-5000 submissions; this fiscal year we have already processed over 6000 submissions, and we still have 3 months to go.   My dedicated staff works tirelessly to process each of these submissions on a timely basis, but we could not do so without your cooperation and help. 

          D.  Section 203

          As many of you know, the language minority requirements of the Voting Rights Act have been a priority for this Administration.  In the past five and one-half years, we have brought more language minority cases than all of the cases brought in the previous history of the Act combined.   If a locality is covered by these requirements, it should provide all materials available to voters in English in the other covered languages as well.  This includes materials at the state level, such as voter registration applications, and brochures geared to voters.  Your locales also should provide sufficient bilingual polling place officials to assist the minority language community where they are voting.  Texas, which has been covered by these requirements now for over thirty years, recognizes their state-wide responsibilities in this area, and provides guidance and oversight to their localities.  We encourage all states with covered localities to become similarly involved in meeting these federal requirements.

           E. Observers/Monitors

          Finally, we also cooperate with the states who have asked us to send federal observers or Voting Section monitors to particular locations.  As many of you know, these observers and monitors can help calm tense situations, identify problems, and provide voters and election officials with an extra measure of confidence.

          The Division has expanded our election monitoring coverage dramatically in recent years, both in numbers and in geographic scope.  In 2004, we conducted a record level of election monitoring.  We dispatched 1,996 federal observers and career Division personnel, the largest number in any year, to the largest number of counties and States in history.  We monitored elections across the United States, from Massachusetts to California and Florida to Alaska.   In 2000, the last comparable election year, the federal government sent only 743 federal observers and career Division personnel.  Last year, an off election year, we still sent 821 personnel to 47 elections in 36 cities and counties in 14 states.  In each of these locales, we worked with and through the local election officials.  Where problems occurred, we reported them to local officials rather than intervening ourselves.  Where they expected problems, we dispatched personnel.  This sort of cooperation underpins all of our work.  And like all of our work, it is intended to benefit voters and the voting process.

III.  Conclusion

          Let me  again thank Sam, Leslie, and all of you for the opportunity to share my thoughts with you.   If you have questions or issues, both John Tanner, the Chief of the Department’s Voting Section, and Cameron Quinn, a former colleague of yours who now works on my staff, are here at the conference and happy to speak with you.

          As we approach the November elections, I want to stress that the Department of Justice is at your service.  Our goal is to help the voters and you who serve the voters.  It is a privilege to work with all of you to do what we do - serve the voters and give them the freest, fairest, and most honest elections in the world.