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 50th 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 25th, 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.