<DOC>
[109th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:24606.wais]
VOTING RIGHTS ACT: SECTIONS 6 AND 8--THE FEDERAL EXAMINER AND OBSERVER
PROGRAM
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HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
NOVEMBER 15, 2005
__________
Serial No. 109-77
__________
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
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, General Counsel-Chief of Staff
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on the Constitution
STEVE CHABOT, Ohio, Chairman
TRENT FRANKS, Arizona JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana MELVIN L. WATT, North Carolina
MARK GREEN, Wisconsin CHRIS VAN HOLLEN, Maryland
STEVE KING, Iowa
TOM FEENEY, Florida
Paul B. Taylor, Chief Counsel
E. Stewart Jeffries, Counsel
Hilary Funk, Counsel
Kimberly Betz, Full Committee Counsel
David Lachmann, Minority Professional Staff Member
C O N T E N T S
----------
NOVEMBER 15, 2005
OPENING STATEMENT
Page
The Honorable Steve Chabot, a Representative in Congress from the
State of Ohio, and Chairman, Subcommittee on the Constitution.. 1
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........ 2
The Honorable Robert C. Scott, a Representative in Congress from
the State of Virginia, and Member, Subcommittee on the
Constitution................................................... 4
The Honorable Melvin L. Watt, a Representative in Congress from
the State of North Carolina, and Member, Subcommittee on the
Constitution................................................... 5
The Honorable David Scott, a Representative in Congress from the
State of Georgia............................................... 7
WITNESSES
Ms. Nancy Randa, Deputy Associate Director for Human Resources
Products and Services, U.S. Office of Personnel Management
Oral Testimony................................................. 9
Prepared Statement............................................. 10
Ms. Penny L. Pew, Elections Director, Apache County, Arizona
Oral Testimony................................................. 12
Prepared Statement............................................. 13
Mr. Barry H. Weinberg, former Deputy Chief and Acting Chief,
Voting Section, Civil Rights Division, U.S. Department of
Justice
Oral Testimony................................................. 17
Prepared Statement............................................. 20
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable John Conyers, Jr. a
Representative in Congress from the State if Michigan and
Member, Subcommittee on the Constitution....................... 63
Appendix to the Statement of Penny Pew: Election Materials....... 65
Appendix to the Statement of Penny Pew: Prepared Statement of
Penny Pew submitted to the National Commission on the Voting
Rights Act..................................................... 145
Appendix to the Statement of Barry Weinberg: Problems in
America's Polling Places: How They Can Be Stopped; Temple
Political and Civil Rights Law Review, Spring 2002............. 146
Prepared Statement of the Honorable Bradley J. Schlozman,
Principal Deputy Assistant Attorney General, Civil Rights
Division, Department of Justice, Concerning The Voting Rights
Act: Sections 6 and 8, Federal Examiner and Observer Programs.. 194
Inserted into the Record by Congressman Watt during the hearing:
Letter from William Jenkins, Director, Homeland Security and
Justice Issues, Government Accountability Office, to the
Honorables Joseph Lieberman, Henry Wazman, and John Conyers,
Jr. regarding the Department of Justice's activities to address
past election-related voting irregularities.................... 197
VOTING RIGHTS ACT: SECTIONS 6 AND 8--THE FEDERAL EXAMINER AND OBSERVER
PROGRAM
----------
TUESDAY, NOVEMBER 15, 2005
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 12:38 p.m., in
Room 2141, Rayburn House Office Building, the Honorable Steve
Chabot (Chair of the Subcommittee) presiding.
Mr. Chabot. Every Chairman should have a gavel when it was
missing. So now we have it, we can get started.
This is the Subcommittee on the Constitution. I'm Steve
Chabot, the Chairman.
I want to thank you all for attending this afternoon. This
is the Subcommittee, as I said, on the Constitution, and the
ninth in a series of hearings this Committee has held in the
last several weeks examining the impact and effectiveness of
the Voting Rights Act.
I'd like to thank all my colleagues again for their
assistance in making each of these hearings informative and
thought provoking, as we continue our efforts to look closely
at those provisions of the Voting Rights Act which are set to
expire in 2007.
Today, we will focus our attention on sections 6, 7, and 8
of the Voting Rights Act, each of which is set, as I said, to
expire in 2 years, in 2007, unless Congress acts otherwise and
reauthorizes.
Section 6 authorizes the Attorney General to send Federal
examiners to cover jurisdictions to register new voters.
Section 7 outlines the procedures to be followed by these
examiners when registering new voters.
And section 8 authorizes the Attorney General to send
Federal observers into these covered jurisdictions to ensure
that the rights afforded by Federal law are protected.
We have another distinguished panel of witnesses with us
here this afternoon, and we want to thank them all for being
here, and we look very much forward to their testimony.
The assistance provided by Federal examiners and observers
in the election process has played an instrumental role in
increasing minority voter participation.
After almost a century of racial discrimination in voting
and several unsuccessful attempts to curtail these pervasive
practices, Congress enacted the Voting Rights Act back in 1965.
Among the many different tools provided by Congress is the
intervention of Federal examiners and observers. This Federal
oversight was deemed necessary as result of the failure on the
part of covered jurisdictions to openly accept minority voters
in the political process.
In the initial years after enactment of the Voting Rights
Act, Federal examiners and observers were used in record
numbers. The impact these provisions have had on minority
voters is reflected in the increasing number of minority voters
registering to vote.
Over 112,000 minority voters have been registered by
Federal examiners over the life of the Voting Rights Act.
And while the number of examiners sent to jurisdictions has
decreased in recent years, the importance of Federal oversight
in protecting minority voters has not diminished.
In the last 25 years, Federal observers have been sent to
over 98 covered counties to ensure that minority voters are
protected.
In fact, the Department of Justice just last week sent
Federal observers to 16 jurisdictions in 7 States to monitor
elections, to ensure compliance with the Voting Rights Act and
other Federal voting and election statutes.
Today, we will examine the impact that Federal examiners
and observers have had on increasing minority participation in
the political process and the continued need for these
provisions in the future.
Again, we look forward to hearing from all our witnesses
here this afternoon.
And at this time, I will recognize the distinguished
Ranking Member of the full Committee, Mr. Conyers of Michigan,
if he would like to make an opening statement.
Mr. Conyers. Thank you, Mr. Chairman.
Before I begin, could I ask the Chair a question about the
absence or withdrawal of the Department of Justice witness that
was scheduled to have been here?
Mr. Chabot. Yes. If the gentleman will yield?
Mr. Conyers. And I'll yield.
Mr. Chabot. We've been informed, and, in fact, I would note
that the Department of Justice was scheduled to be our fourth
witness today, but due to a scheduling conflict, they couldn't
be here. They have submitted written testimony, and it's been
made available to us, and they've offered to make themselves
available at a later date, and to respond to any written
questions that this Committee might have.
Mr. Conyers. Thank you very much for making that clear
because their presence is very critical in how many of us will
proceed under these--this very important consideration.
Mr. Chabot. Would the gentleman yield one more time,
please?
Mr. Conyers. Of course.
Mr. Chabot. I thank the gentleman for yielding. I might
note that Mr. Weinberg is a former attorney with the Justice
Department, and may be able to answer some of the questions
that would be answered if the Justice Department were here.
But again, they--we will be able to provide those questions
to them in writing and maybe an appearance down the road as
well.
Thank you.
Mr. Conyers. Oh, you're more than welcome.
This is a very important part of extending the Voting
Rights Act of 1965, and I'm very interested from hearing--in
hearing from the witnesses about the relationships between the
examiners and the observers.
We're--it seems to me, frankly, Mr. Chairman and Members of
the Committee, that we may need to resort to a little rewriting
of this section to clear up some parts of it.
The one thing I would love to hear commented on and maybe
we'll do it in the questions is that we have a sent Members in
for--we have sent either observers--people have been certified
to come in to monitor elections, but it's usually about
language barriers. It's not about racial exclusion or
harassment or coercion or discouraging the vote.
For example, in the city--my city of Hamtramck, Michigan,
in which there were some problems with Arab-Americans being
harassed at the polls, and they--we sent in Federal observers,
but in many parts of the country, where we really need somebody
looking at some very fundamental questions, which leave it
unnecessary for me to even discuss why we have to justify this
extending and improving on these provisions 3 and 6 and 8.
Every election cycle in our offices, we field numerous
complaints involving election day mischief and worse from
around the country--plenty of it.
As a matter of fact, we should write a report about it or
Mr. Weinberg or Ms. Pew should write a book about it.
Baltimore, 2002--intentions to confuse and suppress the voter
turnout, where flyers misstated the date of the election and
implied that overdue parking tickets, moving violations, behind
in your rent were qualifications that could preclude you being
allowed to vote.
Kentucky gubernatorial election, 2003--59 precincts with
significant African-American populations targeted for vote
challenges by local campaign officials.
May I have an additional minute, sir?
Mr. Chabot. Without objection, so ordered.
Mr. Conyers. Thank you.
In North Carolina, in 1990, the Department sued over
postcards mailed to African-American voters designed to
discourage them from coming to polls by providing
misinformation about the voter requirements.
They finally--there was a consent decree.
Now, the failure--one of the problems that were corrected
from 1957 to 1965 is that we were giving retrospective relief
for interference with the right to vote.
What we needed was prospective relief, and that's what's up
for renewal now, and I hope we can gather a hardcore
congressional group of Members that realize that that's the
heart of this--one of the hearts of the hearing that we're
holding here today.
We've had an election day last week. The Department sent
Federal observers and personnel into 16 jurisdictions in 7
States.
In 2004, the Department coordinated and sent 1,463 Federal
observers and 533 Department personnel to monitor 163 elections
in 105 jurisdictions and 29 States.
So we're here about something that is really fundamental to
improving the voter process in America.
I cannot get it out of my head that we have had two
presidential elections in a row where one State in each
election determined the outcome of the election, and each time
more election violations and accusations of violations occurred
in they State that provided the winner of the election with the
presidency.
And so I ask unanimous consent to revise and extend my
remarks and to include it in the record.
Mr. Chabot. The gentleman's time has expired, and so
ordered.
I would just note--the Chairman would just take a very
brief not necessarily rebuttal, but I would just note that in
the most recent election, the State that the gentleman was
referring to happens to be my State, the State of Ohio, and
there were many accusations of problems at polling places and
things, and study after study that's been done really indicated
that it was a fair election and that the vote was accurate; and
I believe it was 118,000 was the margin in Ohio. So it wasn't
like Florida, where there were 500 or something that made the
difference.
So, for the record, Mr. Conyers.
Mr. Conyers. Well, for the record----
Mr. Chabot. Yeah.
Mr. Conyers. --there is a book out called ``What Went Wrong
in Ohio,'' based on a report by the minority staff of the
Judiciary Committee that has not been rebutted to my knowledge.
Mr. Chabot. Yeah. I would just note that I believe that's
the minority's opinion on that particular book and isn't--so
I'd. But we could get on and on about that. But I--the one
thing we do agree on is that the Voting Rights Act is very
important and has been significant in protecting the rights to
vote for many people in this country, and we're looking
seriously at reauthorizing this, and so I think we agree on
most of what the gentleman said in his opening statement.
And so I thank the gentleman for that.
Mr. Conyers. Thank you, Mr. Chairman.
Mr. Chabot. The gentleman from Virginia, Mr. Scott, is
recognized for five minutes.
Mr. Scott of Virginia. Thank you, Mr. Chairman.
Mr. Chairman, sections 6 through 8 of the Voting Rights Act
contain the Federal Examiner and Observer provisions of the
act, which allow Federal employees to observe polling place and
voter counting activities and serve to document and deter
inappropriate conduct.
Although these provisions are permanent, the primary way
these provisions are utilized is through the section five
preclearance coverage formula, which is set to expire in August
2007.
Federal observers have been deployed in every year, just
about every year. From 1966 through December 8, 2003, almost
25,000 observers have been deployed in approximately a thousand
elections.
While observer coverage in the early years was almost
exclusively designed to protect the rights of Black voters in
the Deep South, in recent years it has been approximately a 50-
50 split between traditional election coverage and election
coverage designed to protect the rights of minority language
voters in various areas of the country.
In addition, the Department has routinely deployed its own
civil rights personnel to serve as civil rights monitors in
jurisdictions not covered by the Voting Rights Act.
During the 2004 election, the Department of Justice sent
approximately 840 Federal observers and more than 250 Civil
Rights Division personnel to 86 jurisdictions in 25 States to
monitor general election activities to ensure voters were free
from harassment, intimidation, and other illegal activity.
Over the last 40 years, the nature of the Federal examiner
has changed. The examiner now usually plays a more
administrative role; whereas, the observer's role has become
more central to protecting voting rights.
Observers monitor elections in any certified jurisdiction
for the purpose of observing whether eligible voters are
allowed to vote, and whether votes cast by eligible voters are
properly being counted.
Observers essentially serve as witnesses for what occurs in
the polling place and during the counting of the vote.
In the case U.S. v. Berks County, that case shows the value
of observers in documenting problems within the polls. The
United States won the case, based upon the court-appointed
observers' substantial evidence of hostile and unequal
treatment of Hispanic and Spanish-speaking voters by polling
officials.
The Berks case also illustrates why observers have a
deterrent effect, because poll workers, election officials, and
others involved in the election process know that their actions
are being observed and recorded, some individuals are going to
be discouraged from engaging in inappropriate behavior.
Sections 6 and 8 and other expiring provisions are
essential to ensuring the fairness of our political process and
equal opportunity for minorities in American politics.
It's imperative that we work together to strengthen these
provisions, and I look forward to the testimony of our
witnesses.
I yield back.
Mr. Chabot. I thank the gentleman for yielding back.
The gentleman from North Carolina, Mr. Watt, is recognized
for the purpose of making an opening statement.
Mr. Watt. Thank you, Mr. Chairman, and thank the Chairman
again and the Chairman of the full Committee for this series of
hearings.
I think this is the ninth one we've had on the
reauthorization.
Mr. Chabot. That's correct.
Mr. Watt. And I think we're getting close to building the
record that we need related to the expiring provisions and the
necessity for their extension.
Today's hearing turns to the last set of provisions
scheduled to expire in 2007. Although much of the media
coverage and public interest in the Voting Rights Act has been
focused largely on section 5 and section 203, the Federal
Examiner and Observer Program has historically played an
integral role in ensuring that voting rights are actually
shielded from Election Day abuses and the violation of those
rights are properly documented.
While there is some question about the necessity of the
Federal examiner provisions going forward, the role and
continued need of well-trained Federal observers assigned to
monitor elections in certified jurisdictions is absolutely
critical.
The value to the average citizen of a Federal presence at
the polls in those jurisdictions with a pattern of voting
irregularities and infractions is simply incalculable.
Voters feel more at ease and confident when the Government
places a high priority on election monitoring.
Conversely, those who might otherwise commit fraud or
harass or intimidate eligible voters are deterred from doing
so.
Despite significant gains in preventing blatant acts of
discrimination at the polls, intentional efforts to undermine
racial and language minority voters persist.
Last week the Voting Rights Initiative of the University of
Michigan Law School issued its final report entitled
``Documenting Discrimination in Voting: Judicial Findings Under
Section 2 of the Voting Rights Act Since 1982.'' And I'm going
to ask unanimous consent that we enter this report in the
record, Mr. Chairman.
Mr. Chabot. Without objection, so ordered.
Mr. Watt. Combing through the over 700 court cases, the
researchers document repeated and sometimes egregious evidence
of intentional discrimination against Native Americans, elderly
African-Americans, and others on election day.
Just last year, at the request of Ranking Member Conyers,
Congressman Waxman and Senator Lieberman, the GAO reviewed the
Department of Justice's activities to address--acknowledged
election-related voting irregularities, including conduct
prohibited by the Voting Rights Act in Florida and other
jurisdictions during Election 2000, and I would ask unanimous
consent that that report be entered into the record also.
Mr. Chabot. Without objection, also so ordered.
Mr. Watt. Although a DOJ witness could not be here today,
or at least not a current employee of the DOJ, I would
encourage the continued deployment of DOJ attorneys and other
professionals on a judicious and non-political basis to
supplement, but not to replace the work of statutorily
authorized observers.
Federal observers have statutory rights to access not
shared by Department of Justice attorneys.
It is important that this access to the polling place be
preserved to guarantee every voter's ability to cast their vote
and to have their votes counted free of unlawful
discrimination.
Finally, Mr. Chairman, one final thing I want to deal
with--that's--really we haven't had a hearing on yet, but
there's been some testimony about over the course of our
hearings, and that's we need to make sure that the award of
expert fees to prevailing parties in litigation is put into the
reauthorization.
The fees of experts in these cases are just--have become a
real burden for everybody. I understand that prior to the 1982
reauthorization, there was an agreement to put this provision
in, and because of the crunch at the last minute, the provision
actually just never got put into the law.
And I don't think there's really any controversy about it.
Prior testimony has already established the incredible expense
imposed on bona fide victims of voting rights violations to
assemble the necessary evidence to sustain their burden of
proof in a private action.
By allowing expert fees to prevail in parties, we would
bring the Voting Rights Act into conformity with other Civil
Rights legislation and promote the continued partnership
between individual and Government enforcement that has made the
act the success it is today.
I thank you, Mr. Chairman, and yield back and look forward
to the witnesses; welcome them and thank them for being here.
Mr. Chabot. I thank the gentleman. The gentleman's time has
expired.
The Chair would also note the presence of a distinguished
Member of the House, Congressman David Scott of Georgia, whose
attendance has been exemplary at these hearings. Not actually a
Member of this Committee, but I'd ask unanimous consent that he
be recognized and have all the rights of a Committee Member
today and be allowed to make an opening statement should he
chose to do so, and also be allowed to question witnesses.
The gentleman is recognized, if he'd like to make an
opening statement.
Mr. Scott of Georgia. Well, thank you, Mr. Chairman.
I would just like to associate my remarks with my
distinguished Democratic colleagues who've spoken eloquently on
the statements so far in the interest of time.
But there is--and my Republican colleague, the Chairman,
quite naturally. Thank you, Mr. Chairman. I also recognize you
first.
If it were not for your graciousness, I wouldn't be here
with this excellent opportunity.
Mr. Chabot. Thank you. I was listening. Thank you.
Mr. Scott of Georgia. Well, I may add, I had already gone
over and shaked [sic.] his hand and thanked him personally.
Mr. Watt. I just didn't want him to engage in that
oversight, Mr. Chairman.
Mr. Chabot. When all this goodwill is over. Yeah.
Mr. Scott of Georgia. And only one point that I certainly
want to--a point that I think we would--I'm interested in is
the why Federal observers are--you think they are--Mr.
Weinberg, especially I was reading over your testimony earlier
today--and your point about why Federal observers are
necessary, but Federal examiners are not, certainly begs for
some good discussion. So I look forward to that.
Thank you, Mr. Chairman.
Mr. Chabot. Thank you. The gentleman's time has expired.
I'd like to--before I introduce the panel--note that
without objection all Members will have 5 legislative days to
submit additional materials for the hearing record.
And I'd now like to introduce our very distinguished panel
of witnesses here this afternoon. Our first witness will be Ms.
Nancy Randa, Deputy Associate Director for Talent Services,
Human Resources, Products, and Services Division, at the U.S.
Department of Personnel Management.
As Deputy Associate Director, Ms. Randa oversees the
services and support provided to Federal agencies in staffing
and human resources, organizational and individual assessment,
training and management assistance, and technology services.
Included in her responsibilities is overseeing OPM's Voting
Rights Program, which deploys observers to designated polling
sites to monitor elections.
Prior to serving as Deputy Associate Director, Ms. Randa
served as Acting Associate Director for Merit Systems Oversight
and Effectiveness, where she spearheaded a variety of projects
that support human capital management and accountability.
Ms. Randa is an active supporter of human resources
workforce transformation efforts, working on HR curriculum
efforts at the graduate school operated out of the U.S.
Department of Agriculture, and with the Human Resources
Management Council.
We welcome you here this afternoon, Ms. Randa.
Our second witness will be Ms. Penny Pew.
Ms. Pew has served as Apache County Elections Director
since 2001. She has been a certified Elections Officer with the
Arizona Secretary of State's Office since 2001, as well as
Arizona's League of Cities and Towns.
In 2003, Ms. Pew successfully completed the Southwest
Leadership Program for Local and State Government from the
University of Arizona Institute for Public Policy and
Management.
In 2004, Ms. Pew partnered with the Navajo Nation Office of
the Speaker on the successful Get Out the Vote 2004 Campaign.
She most recently served as a panelist for the National
Commission on the Voting Rights Act. We welcome you here this
afternoon, Ms. Pew.
And our third and final witness will be Mr. Barry Weinberg.
Mr. Weinberg is a former Deputy Chief and Acting Chief of
the Voting Section at the U.S. Department of Justice.
From 1965 until 2000, Mr. Weinberg served in many key roles
at the Department, including supervising investigations and
litigation under the Voting Rights Act.
In December 1999, the Barry H. Weinberg Award was
established by the Department of Justice, recognizing an
individual who has made an outstanding contribution to the
effectiveness of the Federal Observer Program for monitoring
polling place procedures under the Voting Rights Act.
Mr. Weinberg is the author of numerous articles on the
Voting Rights Act, including a 2002 law review article, co-
authored with Lynne Utrecht, titled ``Problems in America's
Polling Places: How They Can be Stopped.''
Welcome, Mr. Weinberg, as well, as all the panelists. And I
would--as I had noted before, the--for the record, the
Department of Justice was scheduled to be our fourth witness
here today, but due to a scheduling conflict, they were unable
to be here.
The Department of Justice has submitted written testimony,
which has been made available to us, and has offered to make
themselves available at a later date and to respond to any
written questions that this Committee might have, and those
could be submitted to the Department of Justice.
A couple of other items I just need to mention is some of
you have testified before; some of you may not be aware of
this. We have what's called a 5 minute rule. There are two sets
of lights there. They'll go for 5 minutes. For 4 minutes,
they'll be green. When there's 1 minute left, it'll turn
yellow, and red light will come on when your 5 minutes is up.
I won't gavel you down immediately at that time, but we'd
ask within reason to try to stay within that 5 minutes as much
as possible.
It's also the practice of the Committee to swear in all
witnesses appearing before it, so if you wouldn't mind, if you
could each stand and raise your right hand.
[Witnesses sworn.]
Mr. Chabot. Each witness has indicated in the affirmative.
Thank you.
And we'll now hear from our first witness. Ms. Randa,
you're recognized for 5 minutes.
TESTIMONY OF NANCY RANDA, DEPUTY ASSOCIATE DIRECTOR FOR HUMAN
RESOURCES PRODUCTS AND SERVICES, U.S. OFFICE OF PERSONNEL
MANAGEMENT
Ms. Randa. Thank you, Mr. Chairman and Members of the
Subcommittee. I am pleased to be here this afternoon to discuss
the Office of Personnel Management's role in carrying out
sections of the Voting Rights Act of 1965.
OPM works closely with the Department of Justice,
specifically the Voting Section of the Civil Rights Division to
assign voting rights observers to locations designated by the
Department.
OPM's ultimate success with this program depends on its
ability to recruit, train, deploy, and supervise observers of
Election Day procedures.
Under the Voting Rights Act, at the request of a U.S.
District Court or the U.S. Attorney General, OPM provides for
appointment of 1: examiners, to examine and register qualified
individuals denied the right to register in covered
jurisdictions; 2: hearing officers, to entertain challenges to
the actions of examiners; 3: support staff; and 4: observers to
monitor actual polling places on Election Day and the
subsequent tabulation of the votes.
Since 1966, we have deployed over 26,000 observers in a
total of 22 States. Prior to 1976, we sent observers to only
five States--Alabama, Georgia, Louisiana, Mississippi, and
South Carolina.
However, in the past 10 years, as more jurisdictions have
been subject to coverage under the Minority Language provisions
of the act, we sent the next largest number of observers after
Mississippi to these States: Arizona, New Mexico, New Jersey,
California, Michigan, Pennsylvania, and New York.
Voting Rights observers serve as neutral monitors,
witnesses, who do not intervene if there are violations. They
only watch, listen, and record events that occur at particular
polling sites on election days.
At present, we have a pool of approximately 900
intermittent employees, called into service on an as needed
basis, who come from all walks of life, including Federal
employees and retirees, students, and other public and private
sector workers.
We schedule 1-day classroom sessions for observers to
provide in-depth training on the overall process, on specific
observer responsibilities, and on administrative issues.
We also provide refresher training during pre-briefing
sessions on the day before the election. Whenever possible, we
do role playing in the training to demonstrate to the observers
the proper way of handling themselves at the polling sites.
In brief, the deployment process works this way: Prior to
an election, the Department of Justice notifies OPM as to when
and where it will need observers.
OPM then assigns a Voting Rights Coordinator to work with
Justice's lead attorney to allocate observers to polling sites,
coordinate logistics, and assign a captain to oversee the
execution of the deployment.
The day before an election, a Department attorney briefs
the observers, specifying issues of concern and activities to
be reported. Throughout the day, observers report such
information to the captain, who passes this information to a
Department attorney. Only the Department of Justice determines
if intervention is necessary, and only the Department of
Justice takes action.
Toward the end of election day, the attorney determines
when to call back the observers. The observers then return to
their staging site and prepare a written report, one for each
polling site, to document what they saw and heard throughout
the day.
This is the bulk of what OPM does. But the statute also
calls on OPM to have an examiner for each jurisdiction where
observers will be assigned.
Originally, these examiners prepared a Federally-maintained
list of voters who were denied the right to register in covered
jurisdictions and they received calls from citizens regarding
election day issues or incidents.
This function, however, has changed over the years. No
voters have been added to the Federally-maintained list since
1983, as registration barriers have largely been eliminated.
Moreover, since there have been no challenges to
registration decisions in the past 30 years, there has been no
need for hearing officers.
Also due to advances in technology, toll-free numbers now
allow citizens to report incidents and information to these
examiners remotely in real time and 24 hours a day during the
election period.
Under the act, OPM is required to publish voter
registration qualifications of each covered State in the
Federal Register, as well as to publish the list of examiners,
places for voter registration, and examiner assignments.
However, these publications requirements may no longer be
necessary since they are now covered nationwide by provisions
of the Help America Vote Act and the National Voter
Registration Act, which set out Federal standards for voter
registration.
That concludes my testimony, and I would be pleased to
respond to any questions the Subcommittee may have.
[The prepared statement of Ms. Randa follows:]
Prepared Statement of Nancy Randa
Mr. Chairman and Members of the Subcommittee:
I am pleased to be here this afternoon to discuss the Office of
Personnel Management's (OPM) role in carrying out sections 3, 6, 7, 8,
9, and 12 of the Voting Rights Act of 1965 (the Act).
Currently, implementation of the Voting Rights Act at OPM is
managed by the Division for Human Resources Products and Services in
the Center for Talent Services. This office works closely with the
Department of Justice (the Department), specifically the Voting Section
of the Civil Rights Division, to assign Voting Rights observers to
locations designated by the Department. OPM's ultimate success with
this program depends on its ability to recruit, train, deploy, and
supervise observers of election-day procedures.
With regard to responsibilities assigned to OPM (prior to 1979, the
U.S. Civil Service Commission), the Voting Rights Act provides, at the
request of a U.S. District Court or the Attorney General of the United
States, for the appointment of examiners to interview, ascertain
qualifications, and register, if appropriate, qualified individuals
denied the right to register by State and local officials in covered
jurisdictions; hearing officers to entertain appeals and challenges to
the actions of examiners; support staff as necessary to allow these
individuals to perform their responsibilities; and observers to monitor
actual polling places on election day and the subsequent tabulation of
the votes. These provisions have not materially changed since initial
passage of the Act in 1965. The Voting Rights Act also requires OPM to
promulgate regulations on procedures for challenging the actions of
examiners and to publish in the Federal Register individual State
registration qualifications.
Since 1966, we have deployed over 26,000 observers in a total of 22
States. Prior to 1976, we sent observers to only 5 States: Alabama,
Georgia, Louisiana, Mississippi, and South Carolina. In the past 10
years, as more jurisdictions have been subject to coverage under the
minority language provisions of the Act, we sent the next largest
number of observers, after Mississippi, to these States (in this
order): Arizona, New Mexico, New Jersey, California, Michigan,
Pennsylvania, and New York.
Voting Rights observers serve as neutral monitors, who do not
intervene if there are violations. They only watch, listen, and record
events that occur at particular polling sites on election days. At
present, we have a pool of approximately 900 intermittent employees--
called into service on an as-needed basis--who come from all walks of
life, including Federal retirees, students, other public- and private-
sector workers, and some full-time employees of various Federal
agencies.
We schedule one-day classroom sessions for observers to provide in-
depth training on the overall process, specific observer
responsibilities, and administrative issues. We also provide refresher
training during pre-briefing sessions on the day before the election.
Whenever possible, we do role-playing in the training to demonstrate to
the observers the proper way of handling themselves at the polling
sites.
In brief, the deployment process works this way: Prior to an
election, the Department notifies OPM as to when and where it will need
observers. OPM then assigns a Voting Rights Coordinator to (1) work
with Justice's lead attorney to allocate observers to polling sites;
(2) coordinate logistics, such as arranging hotel meeting space and
sleeping rooms for observers, leasing mobile phones, and making rental
car and airline reservations to transport observers; and (3) assign a
captain to oversee the execution of the deployment.
The day before an election, a Department attorney briefs the
observers, specifying issues of concern and activities to report. For
example, if a jurisdiction has been suspected of hampering non-English
speakers' right to have interpreters or of not providing ballots in
other languages as directed by consent decrees or court orders, the
Department's attorney may ask that observers witness the provided
assistance and/or make note of how many voters received language
assistance. Observers may also be asked to note how many non-English
speakers were turned away from polling sites or were given provisional
ballots. Throughout the day, observers report such information to the
captain, who passes this information to a Department attorney. Only the
Department determines if intervention is necessary, and only the
Department takes action. Toward the end of an election day, the
Department determines when to call observers back. The observers then
return to their staging site and prepare written reports--one for each
polling site--to document what they saw and heard throughout the day.
That is the bulk of what OPM does. The statute also calls on OPM to
have an examiner for each jurisdiction where observers will be
assigned. Originally, examiners prepared a Federally maintained list of
voters who were denied the right to register by State and local
officials in covered jurisdictions, and they received calls from
citizens regarding election-day issues or incidents. This function,
however, has changed over the years. No voters have been added to the
Federally maintained list since 1983 as registration barriers have been
eliminated. Moreover, since there have been no challenges to
registration decisions in the past 30 years, there has been no need for
hearing officers. Also, due to advances in technology, toll-free
numbers allow citizens to report incidents and information to examiners
remotely, in real time, and 24 hours a day during the election period.
Under the Act, OPM is required to publish voter registration
qualifications of each covered State in the Federal Register. It has
also been required to publish the list of examiners, places for voter
registration, and examiner assignments. However, these publication
requirements may no longer be necessary, since they are now covered
nationwide by provisions of the Help America Vote Act (HAVA) and
``Motor-Voter'' statute (National Voter Registration Act), which set
out Federal standards for voter registration.
OPM's Voting Rights Program costs have ranged from under $1 million
in earlier years to a high of $4 million in the Fiscal Year that
included the 2004 general election. Putting aside the expected increase
in 2004, the overall trend has been for an increase in program coverage
and cost, particularly for minority-language coverage.
That concludes my testimony, and I would be pleased to respond to
any questions the subcommittee may have.
Mr. Chabot. Thank you very much. Ms. Pew, you're recognized
for 5 minutes.
TESTIMONY OF PENNY L. PEW, ELECTIONS DIRECTOR, APACHE COUNTY,
ARIZONA
Ms. Pew. Thank you, Mr. Chairman, Members of the
Subcommittee, for the opportunity to testify today for the
reauthorization of section 6 and section 8, as they relate to
section 203 of the Voting Rights Act.
As stated before, my name is Penny Pew, and I've been the
Elections Director in Apache County since 2001.
And one of our primary focuses has been providing the
minority and prospective voters the necessary election
materials to ensure that each vote cast is an informed vote.
While this education began in the 1990's as a mandate, we
continue to provide these services to our electors so that the
rewarding changes that we have experienced will continue.
I would like to speak to the Federal Observer Program,
which I believe was implemented following guidelines from the
consent decree.
The Observer Program has successfully functioned as a check
and balance feature in the translator program. One of the
three-member teams sent to the 33 precincts on the Navajo
Nation speaks Navajo, who I view as a partner.
During the day, these observers are able to witness poll
workers and translators assisting the voters as they impart
ballot information. The observers ask voters if they may
observe the process. They do not interfere with the process and
have never, to my knowledge, given any instruction to improve
or to correct a process.
The observers note different scenarios occurring during the
course of the day to ensure that fraudulent information is not
given to voters. In some instances, the observers report
happenings to their DOJ central contact, who I meet with on
each Federal Election Day.
We are able to discuss the information relating to the
day's events at the polling places. This is absolutely the best
way for me to know instantaneously of situations that can be
rectified in a very timely manner.
I explain to those poll workers that the individuals have
been invited to help us do our duties. Observers are greeted by
the inspector of the polling place in an attempt to put all
parties at ease and to assure the poll workers that the
observers should not be viewed as hostile.
Identification is presented and worn by each observer
throughout the day. Due to the rural area of Apache County and
in an attempt to minimize their presence, observers are
requested to dress casual to better fit their surroundings.
In follow-up post-election meetings, these notes are
discussed, and, if necessary, changes are made in personnel or
training procedures to ensure that no repeat incidents occur.
As you are aware, the Navajo language is unique and could
be very easily misinterpreted. Translators who serve on these
election boards attend exclusive training classes, which are
taught by full-time outreach workers, using written copies,
flip charts, cassette recordings.
During these classes, members are asked to read aloud the
information together as a whole group. Open questions and
clarifications are given by the outreach workers to ensure that
each translator is uniform in their ballot translation, voter
to voter, precinct to precinct.
In 2004, Apache County extended partnership to include the
Navajo Nation Office of the Speaker. We provided various
educational materials through chapter meetings, community
forums, fair booths, and frankly anywhere there were voters.
I am pleased to report that this was a worthwhile project.
As it turned out, Navajo Nation increased to 17,955 voters,
comparatively to 14,277 voters in 2000. Additionally, the
numbers increased in a precinct on the White Mountain Apache
land from 44 voters in 2000 to 62 in 2004.
Now, as an Election Director, I've spent untold hours
developing a program that is indigenous to Apache County. I've
spent time in the polls and in the communities listening to
these voters, learning what we as election directors can do to
ensure that the most fundamental right as citizens of this
great nation enjoy the right to an informed vote, with the
knowledge that it will be counted without worry of fraudulent
actions in or out of the polling place.
In closing, I fervently believe that is incumbent upon this
Committee to use the expertise of each witness to further the
Voting Rights Act, sections 6 and 8, Federal Examiner and
Observer provision; and continuing programs such as the one
used in Apache County.
The observer program has proven successful for us, and has
given us insight to the happenings at each polling place that
would otherwise go unnoticed.
For these and other additional reasons, which are stated in
my written testimony, the reauthorization of these sections is
critical to maintaining the robust program in Apache County.
And, again, thank you for your--for this opportunity.
[The prepared statement of Ms. Pew follows:]
Prepared Statement of Penny L. Pew
Thank you Mr. Chairman and committee members for the opportunity to
testify before you today regarding the reauthorization of Section 6 and
Section 8 as they relate to Section 203 of the Voting Rights Act, 42
U.S.C. 1973c.
My name is Penny L. Pew, and I am the elections director of Apache
County in northeastern Arizona. I have had the pleasure of this
position since June of 2001. My primary focus has been on providing the
minority and prospective voters, the necessary election materials to
ensure that each vote cast is an informed vote. While this education
began in 1982 as a mandate, we continue to provide services to our
electors so that the rewarding changes that we have experienced will
continue.
FEDERAL OBSERVER PROGRAM
Following a lawsuit charging Apache County with discrimination
against Native Americans, as it related to election procedures and
materials, a 1989 Consent Decree was entered establishing the Navajo
Language Election Information Program. A portion of this program was
the observer program which has successfully functioned as a check and
balance feature to this program.
According to the 2000 census, the total population of Apache County
is 69,423 persons, of whom 53,375 are Native American (76.9%). The
voting age population of 42,692 persons, of whom 31,470 are Native
American (73.7%); and that of all Native Americans of voting age, over
one-third are limited-English proficient (11,377 persons).
Most of the 3 member teams sent to the 33 precincts located on the
Navajo Nation have at least one Navajo speaking member, who I view as a
``partner''. During the day, these observers are able to witness poll
workers and translators assisting the voters as they impart ballot
information. The observers ask voters if they may observe the process.
They do not interfere with the process and have never to my knowledge
given any instruction to correct or improve a process. The observers
note different scenarios occurring during the course of the day to
ensure that fraudulent information is not given to voters. In some
instances, the observers report happenings to their DOJ central
contact, who I meet with on Election Day. We are able to discuss the
information relating to the days events at the polling places. This is
absolutely the best way for me to know instantaneously of situations
that can be rectified in a timely manner.
I explain to the poll workers that these individuals have been
`invited' to help us as we do our duties. Observers are greeted by the
Inspector of the polling place in an attempt to put all parties at ease
and assure the poll workers that the observers should not be viewed as
hostile. Identification is presented and worn by each observer
throughout the day. Due to the rural area of Apache County and in an
attempt to minimize their presence, observers are requested to dress
casual to better fit their surroundings.
In a follow-up post election meeting, these notes are discussed and
if necessary, changes are made in personnel or training procedures to
ensure no repeat incidents.
Translators who serve on the election boards attend extensive
training classes which are taught by full-time outreach workers using
Power Point presentations, flip charts, cassette recordings as well as
written copies, of the ballot information. Each translator and
Inspector (lead poll worker) are provided a cassette and also written
ballot information. During the training classes, each member is asked
to read aloud the information. This is accomplished in a relaxed
atmosphere where the class participates as a whole. Open questions and
clarification are given by the outreach workers to ensure that each
translator is uniform in their ballot translation, voter to voter,
precinct to precinct.
VOTER OUTREACH AND EDUCATION
Advertisements
Apache County has provided bulletin boards to each chapter house
facility where upcoming election information is posted and kept
current. Voters have learned to use this tool in gaining the necessary
election information. Periodic checks are done to ensure that only
current information is posted.
Radio stations and newspapers have been instrumental in
distributing the necessary election information. This was originally
outlined in the Consent Decree 1989 with many additional measures added
for further enrichment.
Language Training
As each of you are aware, the Navajo language is unique and without
extensive linguistic training, could be misinterpreted. A Navajo
Language Election Glossary has been developed over the years with input
from outreach workers in Arizona, New Mexico, Utah, and the Navajo
Nation in an effort to make the election terminology used county to
county and state to state as uniform as possible. As times and
technology change, the glossary is updated through proper approval.
The outreach workers use this glossary to translate ballot issues
in a Tri-County forum to further ensure uniformity. This is imperative,
as many precincts lie on county lines where voters may see more than
one county ballot, radio or newspaper ads or other informational
materials.
Translators/Poll workers
Poll workers are given a detailed manual to use as a guide in
fulfilling their obligations on Election Day, in a uniform manner.
Additional items are distributed to ensure that the poll worker has all
the tools necessary to assist the voter. In an effort to further
educate, role playing was implemented and has proven to be a valuable
tool in explaining ballot measures, as they are often very complicated.
Due to the extensive land area of over 11,000 square miles,
training classes are held in various locations throughout the county to
allow the poll workers and translators easier access to training. Each
individual is compensated for their time to attend these classes.
After the training class, poll workers are encouraged to listen to
their audio cassette and practice the issues. Many mentioned that they
didn't have access to a player. So, in 2003, we established a cassette
player library for workers to check out a player to listen and study
the information. This was well received and the post election remarks
indicated improvement; additionally, all cassette players were returned
to the county library.
State and County Monitoring of Effectiveness
Meetings are schedules on Tri-State and Tri-County levels to
discuss any issues that may need to be remedied. Any/all issues are
handled by each county official to keep uniformity in the informational
disbursement process. Tri-county personnel work closely on translations
and exchanges of information to better ensure uniformity in the
disbursed information. NEA officials are invited and usually attend
these meetings with valuable input on the issues.
NEA (Navajo Election Administration)
All information is approved by the NEA prior to distribution
including but not limited to announcements (radio and print), ballot
translations, audio tapes, and any other training information. All
training schedules are provided to the NEA and an open invitation to
attend any/all class.
The following is taken from a letter written to me by Kimmeth
Yazzie, Navajo Nation Program Coordinator/Language contact:
``The purpose of the minority language Consent Decrees has
generated a much greater cooperation and assistance to provide
the necessary election and voter registration services to the
Navajo Nation within the counties, much more than was
anticipated from the beginning. Although the Consent Decree
specific to Apache County expired in 1992, the county and the
Navajo Nation continue to strive forward to this day to make
voter registration and elections easier for the citizens in
Apache County. Such services as situating outreach offices and
Navajo speaking personnel in local areas with additional
personnel when it becomes necessary, has made voting easier for
the people of Apache County. An example, the development of the
Navajo Glossary has opened doors to better communication with
the Navajo Nation citizens as well as other tribes seeking
development of the same methods of outreach. Developments of
graphic materials and video and audio recordings provide our
people with a better understanding of the elections. Bringing
voter registration to the local area eliminates the long
distance travels just to register to vote for outlying areas.
Setting up and coordinating events together with the Navajo
Nation and the county provides voters with two services at one
location and a better understanding of the two distinctive
elections. The clearance of all materials and information
through the Navajo Election Administration provides assurance
to the Navajo Nation that the proper and sufficient election
information is provided to the people of the Navajo Nation,
thus developing trust and alliance. Ideas to better provide
services are always being exchanged between the county and the
Navajo Nation. We learn from each other. Since the expiration
of the Consent Decree in 1992, the relationship between the
tribe and the county has grown and advanced beyond the bounds
of the Consent Decree requirements.
In closing, I can honestly say that the language program has
been positive for our county in educating and promoting our
most fundamental right . . . the power of our vote.''
Outreach/Satellite Offices
Apache County has two county district offices which are on
Reservation Land; District I in Chinle houses a satellite office.
District II in Ganado houses a second office. Voters and residents of
surrounding areas visit to check voter registration and to receive any
election updates.
Regular meetings are scheduled and appear on agendas for the
chapter visits at which time presentations are given using flip charts,
PowerPoint presentations, audio aids as well as other means to convey
the necessary information. Presentations are given in the Navajo
language.
All political views of the outreach workers are kept unbiased and
neutral at all times. Implementation to `piggy-back' with the
jurisdictions has been effective in that the outreach worker gives
factual ballot information and the jurisdictions are available to
answer any additional questions that the public may have.
Deputy Registrars
Deputy Registrars have proven valuable in assisting the voters in
the ongoing voter registration and education process. Each Deputy
Registrar is trained in current procedures. Each chapter office, Navajo
Election Office and other Navajo Nation officials are trained and have
provided further election information. Each chapter maintains a current
voter listing, voter registration forms and during election cycles,
early voting request forms.
Collect Phone Calls
Apache County happily accepts collect calls to assist the caller in
election-related information. In an effort to better serve the people,
an `800' number is advertised on all out-going materials and
advertisements as well as the website.
Voter Education
Numerous items with voter information in distributed to spark
interest in what has been viewed as boring in the past. Colorful
brochures and interactive community meetings have been the focus in
gaining voter recognition. For instance, during the Presidential
Preference Election, February, 2004, in an effort to better explain who
may vote, an informational brochure was produced in English, receiving
positive input. A mirror copy was then distributed in the Navajo
language. This helped gain further notice among the voters, with the
outreach workers receiving community comments for further ideas in
education. We also provide ``I Voted'' stickers in the Navajo language
and it has been spectacular.
VOTER TURNOUT
In 2004 Apache County extended partnership to include the Navajo
Nation Office of the Speaker in an effort known as ``Get the Vote
Out''. Due to the low voter turnout experienced in past elections, we
provided various educational materials at chapter meetings, community
forums, fair booths, and anywhere there were going to be voters. I am
pleased to report that this was a worthwhile project as turnout in
precincts on the Navajo Nation increased to 17,955 voters casting
ballots in 2004, comparatively 14,277 voters participated in 2000.
Additionally, on the White Mountain Apache Lands, Apache County has one
precinct where 44 voters participated in 2000, rising in 2004 to 62.
This is due in part to the education at school and community meetings.
Political Protocol
During the 2002 election cycle, a non-Native American entered
several polling places without the proper clearance. While inside the
polling place, he intimidated the poll workers and voters, creating
chaos as he progressed to various polls. For this reason alone, we
implemented a Political Protocol presentation and accompanying
brochure. The brochure is included in each candidate packet and a
personal invitation to attend a short meeting outlining the proper
protocol when campaigning on Native Lands. This is sent to each
candidate, county, state or federal. We had great success and I am
pleased to report that during the five elections which were held in
Apache County in 2004, we had no reported violations in or around the
polling places.
Early Voting
Ballot request forms are given to the Chapter Officials, County
District offices on the Navajo Nation, State offices and the NEA.
Outreach workers keep forms with them at all times while traveling and
presenting throughout the county. These forms can also be accessed
using the website www.co.apache.az.us/recorder.
Early Voting drives are unique in Apache County. After specified
advertisements in newspaper and on radio, a trailer which has been
painted in a patriotic motif travels to scheduled locations throughout
the rural areas. This trailer can be found many places such as on fence
lines, shopping lots, trading posts, and post offices to name a few.
Election Day
Apache County employs trained bilingual poll workers at each of the
polling places on Native Lands. These poll workers are recruited with
the help of chapter officials, postings and word of mouth.
Where joint elections are held between the Navajo Nation and the
County, where polling places are shared, all efforts are made to make
certain that the poll workers are trained and that a good working
relationship is established between the Navajo Nation and the County
officials to provide an enjoyable election day. The NEA and the County
exchange poll worker lists to ensure that no candidate or close
relative appears on either ballot.
Each polling place is monitored for effectiveness by a
`Troubleshooter.' This person is a county employee who has received
training in the election process and is able to identify and correct
irregularities on-the-spot. This person is the liaison between the
county elections director and the polling place.
CLOSING COMMENTS
As election director, I have spent untold hours developing a
program that is indigenous to Apache County. I have spent time in the
polls and in the communities listening to the voters, learning what we
as election directors can do to ensure that the most fundamental right
as citizens of this great nation enjoy . . . the right to an informed
vote with the knowledge that it will be counted without worry of
fraudulent actions in or out of the polling place.
In closing, I fervently believe that it is incumbent upon this
Committee to use the expertise of each witness to further The Voting
Rights Act: Sections 6 and 8--Federal Examiner and Observer Provisions,
in continuing programs such as the one used in Apache County, Arizona
as it relates to the Native Americans. The observer program has proven
successful for us and has given us insight to the happenings at each
polling place that may otherwise go unnoticed. For these and other
additional reasons, which are stated in my written testimony, the
reauthorization of these sections is critical to maintaining the robust
program in Apache County. Again, I thank you for this opportunity.
Mr. Chabot. Thank you very much, Ms. Pew.
Mr. Weinberg, you're recognized for 5 minutes.
TESTIMONY OF BARRY H. WEINBERG, FORMER DEPUTY CHIEF AND ACTING
CHIEF, VOTING SECTION, CIVIL RIGHTS DIVISION, U.S. DEPARTMENT
OF JUSTICE
Mr. Weinberg. Thank you very much, and thank you for asking
me to come here.
I may be one of the few witnesses that you have who is not
connected with any office or organization, and probably one of
the fewer witnesses that you're going to have that was there at
the inception of the Voting Rights Act and saw the Federal
examiners listing people to vote and saw the Federal observers
when they first started.
But I know I'm the only one here among the witnesses who
was a supervisor of the Federal Examiner and Observer Program
in the Justice Department for 25 years, and it's from that
vantage point that it seems to me that there are at least three
questions that ought to be addressed now when we're thinking
about the reauthorization of these provisions.
The first question is whether the provisions for Federal
observers and Federal examiners are still needed. I think that
the answer to that question is that the provisions for the
Federal observers are crucial to the enforcement of the Voting
Rights Act, and need to be reauthorized, maybe even made
permanent; but the provisions for the Federal examiners not so
much.
The Federal examiners' functions--most of them are
outdated. The procedures are cumbersome and archaic, and I
don't think they serve any real purpose anymore. And so my
conclusion would be that they're not needed anymore in the
Voting Rights Act as it stands today.
The second question I think is whether there should remain
a link between the certification of a county for Federal
examiners and the later assignment of Federal observers to the
county.
Under the Voting Rights Act, the certification of a county
for Federal examiners is a prerequisite to the assignment of
Federal observers.
But the functions that they perform, the link that they
had, doesn't exist anymore. When Federal examiners first
registered people to vote, those people had to go to polling
places where there were hostile election officials. You had
African-American voters facing hostile White polling place
workers and voters for the first time in many, many rural areas
across the South. The Federal observers were written into the
act to watch what happened to those newly enfranchised voters
and to allow the Justice Department to take action to assure
their safety in the polling places. That situation just doesn't
exist anymore, and I think the linkage is cumbersome and ought
not to exist either.
The third question I think is whether the Federal observers
ought to be continued as a law enforcement function under the
Voting Rights Act, which is what they perform; or whether it's
possible to make the reports and information from the Federal
observers public after the election, as is done overseas.
I just got back last week from being an international
observer in an election in Azerbaijan, and I've done that a few
other times. The organizations that do that kind of work do it
in order to publicize the information that they get from the
polls immediately after the election.
But I think that would be a real mistake. I think that the
use of Federal observers in law enforcement is important and
ought to be continued and the publication of the information
they get immediately would be detrimental.
All this revolves around what I consider the most important
point, which is that the existence of Federal observers is
crucial, and it's irreplaceable in the Voting Rights Act. After
all, there's no other way for the law enforcement function of
the Justice Department to be able to be performed with regard
to harassment and intimidation and disenfranchisement of racial
and language minority group members in the polling place on
Election Day. And that's because State laws are written to keep
other people, including Federal investigators out of the polls.
State laws, almost all of them--and they vary, but
invariably they allow in the polls on Election Day the voters
and the polling place officials, and they keep everybody else
out. They allow police in if there's a disturbance, but mainly
it's to have this safe harbor for voters on Election Day. But
the effect of that, from a law enforcement point of view, is it
keeps the law enforcement officers out. There is no way that
the Justice Department lawyers could know about this harassment
and this intimidation without the Federal observers, because
the Voting Rights Act allows the Federal observers in. Federal
observers are witnesses. They are the eyes and the ears of the
Justice Department attorneys in the polling places.
Without them, the law, the enforcement of the Voting Rights
Act would be much abused, and so I would--my conclusion is that
the observer provision is necessary. It ought to be
reauthorized. It ought to be continued, and I think there
should be some consideration given to making it permanent,
taking it out of the special provisions and making it adjunct
to sections 2 and 203 of the Voting Rights Act.
[The prepared statement of Mr. Weinberg follows:]
Prepared Statement of Barry H. Weinberg
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Mr. Chabot. Okay. Thank you. The gentleman's time has
expired.
The panel up here is bound by the same rule as the witness
panel is, and it's a 5 minute rule, so we will each have 5
minutes to ask questions at this time, and the Chair recognizes
himself for that purpose.
And the question I'm going to ask--I'll just go down the
line and let each of you deal with it.
And some of you have already touched on this in your
testimonies obviously, but much of what we're doing is setting
a record here, and so some repeating I think is probably good.
It's been suggested in some of the written testimonies that the
Federal Examiner Program may no longer be necessary.
Mr. Weinberg's written testimony further suggested that
Congress should amend section 8 to make certification for the
deployment of Federal observers independent of Federal
examiners. Would each of you comment on the Federal Examiner
and Observer Program and why the assistance of Federal
observers is still necessary or not.
Ms. Randa?
Ms. Randa. Thank you, Mr. Chairman. We play--we at OPM play
a very limited support role to the Department of Justice in
this program, and I have testified to the fact that the role of
Examiner has evolved over the years and changed. But beyond
that, I would think we would defer to the Department of Justice
to make any decisions about exactly what changes should be made
in the future.
Mr. Chabot. Okay. Thank you. Ms. Pew?
Ms. Pew. I can speak to the Federal Observer Program and
believe that it is well worth the time spent. It is my--those
are my eyes and ears inside the polling places. I have very
limited examiner contact. But I can speak to the Federal
Observer Program; that it has been absolutely phenomenal. It's
been a great boon in our county.
Mr. Chabot. Thank you. Mr. Weinberg?
Mr. Weinberg. Thank you. I mean I think Ms. Pew's response
is somewhat indicative. She's been intimately involved as a
county election official with the results of the work of the
Federal observers, and has no knowledge of what the Federal
examiners do.
And I think that's not her fault. It's because the Federal
examiners just don't do much anymore. I think OPM, if we were
being candid in the back room, would say they have to maintain
all these lists of federally registered voters. They have to
keep them current, keep the addresses up. Mostly now, they're
removing people's names from those lists of federally
registered voters, because they're dying.
Yet, the counties can't take those voters off their voting
rolls without an okay from the Office of Personnel Management.
I mean I think to some extent it is now getting--what were
protections are now getting in the way of several functions,
and I think they're not needed.
As far as the certification, and you know I think observers
are important. As far as how to get them into a county the
first time, I do think a certification procedure is important.
I think it assures everyone that there is a need for this law
enforcement function to go on.
But as it stands now, the Attorney General has to
personally sign the certifications. I think that's unnecessary.
I think that function could be delegated to the Assistant
Attorney General, much the same way as the Assistant Attorney
General has authority delegated to object to voting changes
under section 5 of the act, and I think that it could go on as
a provision on its own.
I think it should.
Mr. Chabot. Thank you. And my second question, Mr. Weinberg
and Ms. Randa, if you want to comment on it, you could as well.
How does the Department of Justice determine whether
Federal observers are necessary?
Mr. Weinberg. There's sort of two tracks on that. And, you
know, I must qualify everything I say by saying I haven't been
at the Justice Department for almost 6 years. I don't know
what's changed and what's not. I doubt that it has changed very
much.
One track is where there's an investigation before the
election that starts 6 weeks before an election, and is
described in some detail in my extended remarks. It's an
investigation. It starts out with telephone calls to local
officials, to minorities who are knowledgeable in the area
about election matters and devolves down to field investigation
by attorneys who relay information up to a central person in
the Voting Section of the Civil Rights Division, who then
combines the information; is talking with OPM; puts together a
memorandum setting out the facts for each site, and
recommending how many observers are needed.
So it's a very intensive, a very detailed law enforcement
investigation. That's how it usually works in Southern areas.
Where the concern is with language minority provisions of the
Voting Rights Act, it's a little bit different. There still is
an investigation, but because the problems involved with
violations of the Language Minority provisions of the Voting
Rights Act usually are systemic and do not depend on any
particular election contest in a city, county, or school
district----
Mr. Chabot. Do you do that before each election?
Mr. Weinberg. Yes.
Mr. Chabot. Okay. Thank you.
Mr. Weinberg. In the specially covered areas.
Mr. Chabot. Okay.
Mr. Weinberg. Yes.
Mr. Chabot. Thank you. You can continue.
Mr. Weinberg. Because of the language violations of the
Language Minority provisions usually are more systemic, an
initial investigation is what's needed. Usually, these days,
there's litigation that results and a court certifies the
county. So you have everything you would have leading up to
litigation, which is a lot of work and a very intensive effort.
After that, the first election, however, the observers
could be assigned again and again without repeated
investigations. It's the information really one gets out of the
polling places for the language minority coverage that would
recommend going or not going again to the next election.
Mr. Chabot. Okay. Thank you very much. My time has expired,
but, Ms. Randa, is there anything that you want to----
Ms. Randa. I would just confirm what Mr. Weinberg said that
our involvement is to coordinate on the number sent to each
polling site.
Mr. Chabot. Okay. Thank you very much. My time has expired.
The Ranking Member of the overall Committee, Mr. Conyers,
is recognized for 5 minutes.
Mr. Conyers. Thank you, Chairman Chabot.
Three considerations. I start with Mr. Weinberg. There's
been only one certification by the Attorney General to section
6, Titus County, Texas. Does that mean a lot are coming through
the courts under section 3 or does it mean there need to be a
lot more?
My second consideration--and I'll go over these again--is
this linkage between certification of observers and its
validity.
And then finally, I had one of the witnesses tell me that
Federal observers are kept out of the polls by State law, so
it's frequently hard for them to see anything that's happening.
It's hard to be an observer if you can't get into the polls
under State law.
Can you help put some of these things into context?
Mr. Weinberg. I can help with some of them I think.
Taking the last one first, State law would keep most people
out of the polling places, but Federal observers get to in the
polling places because the Voting Rights Act lets them. It's
the authorization of the Voting Rights Act that lets Federal
observers in. Otherwise, the Federal observers are like people
off the street, and just can't walk into a polling place on
Election Day.
As far as the certifications go, as I haven't been involved
in that, I don't know. I went onto the Justice Department
website a couple days ago to see if I could tell what's been
going on in the last few years, and there have been a lot of
court certifications it looks like as a result of litigation
under the Language Minority provisions of the Voting Rights
Act. And observers are being assigned to watch elections in
those areas.
I don't know why there have been few, if any,
certifications by the Attorney General of counties.
Mr. Conyers. Well, from everything I've been hearing, you
know we've got piles of complaints that come in. Unless all of
them are invalid, I mean this doesn't add up, Mr. Weinberg.
Let me put it like this: Are attorneys who are Federal
observers precluded from coming into the voting booths?
Mr. Weinberg. The Justice Department attorneys in most
States would be precluded from going into the polling places
because they're neither registered voters there nor polling
place officials.
The Federal observers, however, can go into polling place
where they're assigned--any county jurisdiction that's been
certified.
Mr. Conyers. Ms. Pew, do you or Ms. Randa, want to add
anything to this discussion.
Ms. Pew. I will add that in Arizona, observers, with prior
approval, are welcome into our polling places. We ask that they
submit something in writing to me by the Friday prior to the
election, so that I can send that to the poll workers.
Given that a lot of them are non-Native American, and then
poses a threat. We did have an incident in 2000 that prompted
quite a chaotic sense in about 17 of our precincts, and, for
that reason, we began a political protocol that is mandatory
for our observers.
Mr. Conyers. Could you get a little outdated considering
the way the process is working now?
Ms. Pew. I can't respond to that, because in our county the
Recorder's Office and the Elections Office are separate. The
Recorder's Office maintains the voter rolls, as far as purging
those, as Mr. Weinberg has spoken to, so I can't respond to
that.
Mr. Chabot. Ms. Randa?
Ms. Randa. I wouldn't want to hazard a conclusion about
whether it should or how it should change, but I will confirm
what Mr. Weinberg said about there having been very little
activity other than removing names from the list of registered
voters. So that part of the role is what has evolved.
Mr. Conyers. Thank you, all. Thank you, Mr. Chairman.
Mr. Chabot. Thank you. The gentleman's time has expired.
The gentleman from Virginia, Mr. Scott, is recognized for 5
minutes.
Mr. Scott of Virginia. Thank you. Thank you, Mr. Chairman.
Mr. Weinberg, let me ask you a little more specifically,
just from a practical point of view, if a local civic
organization suspects problems in a certain area, how do they
get an observer into that area now, and how would you propose
changing that mechanism?
Mr. Weinberg. Getting in touch with the Justice Department
about the need for Federal observers is the easiest thing on
earth. All you need to do is call. A telephone call will do it.
In fact, the Justice Department attorneys rely very, very
greatly on information and input from people who are in the
counties, whether they are victims or witnesses or just
concerned citizens.
We always were open to those kinds of contacts. If somebody
has a particular problem in any county, we always encouraged to
call us, let us know what the concern is, and we will
investigate.
If the investigation reveals facts that show violations of
the Voting Rights Act and need for observers, the observers
will be sent.
Now, in Virginia, there are no certified counties, so that
whole certification process we were talking about before, where
there has to be an investigation, and then a recommendation to
the Attorney General to sign a piece of--he actually signs a
piece of paper that says I hereby certify, and then that's
published in the Federal Register before Federal observers can
be assigned.
Mr. Scott of Virginia. And that's the process now?
Mr. Weinberg. Yes.
Mr. Scott of Virginia. And are you proposing any change to
that process?
Mr. Weinberg. Yes. I'm proposing that in my imagined the
new process there would be an investigation and the Assistant
Attorney General would agree to a recommendation and then sign
a piece of paper that says that Federal observers would be
needed to watch proceedings in the polling place in order to
enforce the Voting Rights Act.
Mr. Scott of Virginia. Now, how long does that
certification stay active?
Mr. Weinberg. Now, it stays active forever. A jurisdiction
can petition under section 13 of the Voting Rights Act to stop
the Federal examiner appointment. I don't think anybody ever
has.
Mr. Scott of Virginia. Do the observers have any specific
qualifications?
Mr. Weinberg. Observers, by and large, OPM, as I understand
it tries to have observers be OPM personnel where that's
possible; in some instances, where language minority voters are
concerned, there may not be sufficient numbers of OPM personnel
who speak that language, especially in Indian country. And so
people from other agencies are taken in.
But the Federal observers are personnel who are trained.
There are periodic trainings through the year, and then there
are on-site trainings that are specific and briefings of the
observer before the election.
Mr. Scott of Virginia. If you didn't have the observers,
how would you investigate complaints?
Mr. Weinberg. When I started in the Justice Department, I
was law clerk in the summer of 1965. The Voting Rights Act
passed in early August, but we still had many lawsuits that
were pending. They were terribly cumbersome. They're very
difficult to investigate. The records alone are very difficult
to get, and I think the Court, in South Carolina v. Katzenbach,
which found the Voting Rights Act special provisions
constitutional, recognized how difficult it is to mount a
standard garden variety lawsuit against violations of the
Voting Rights Act.
So, absent the Federal observers, it would be terribly,
terribly difficult.
Mr. Scott of Virginia. Thank you, Mr. Chairman.
Mr. Chabot. Thank you. The gentleman's time has expired.
I'd ask unanimous consent that the gentleman be given one
additional minute, if he would yield to me for a moment?
Would the gentleman from Virginia yield to me?
Mr. Scott of Virginia. Yes.
Mr. Chabot. Okay. I just wanted to follow up with one
question, Mr. Weinberg. What criteria would you envision for
certification of observers?
Mr. Weinberg. I think the criteria would be that there is
evidence of probable violations of the Voting Rights Act. I
mean I don't know that one needs much more.
The certification procedure now is just about that. It's--
for examiners. It's not a detailed certification.
Mr. Chabot. Okay.
Mr. Weinberg. And I would think it shouldn't--certainly not
be more detailed and possibly a little less. But it would be
keyed to possible violations of the Voting Rights Act.
Mr. Scott of Virginia. Well, Mr. Chairman.
Mr. Chabot. I yield back.
Mr. Scott of Virginia. Reclaiming my time, when do they
certify it now?
Mr. Weinberg. They certify--now the certification is it's
necessary to enforce the 14th and 15th amendments.
Mr. Chabot. If the gentleman would yield? Isn't it also or
20 written complaints?
Mr. Weinberg. Yes. There's an alternative that if you get
20 written complaints. That, however, triggers the Attorney
General's consideration. And so it all devolves pretty much to
the same point, which is we in the Justice Department had to
figure out that there were violations of the law that were
probable and usually were happening and persuade the Attorney
General of that.
Mr. Chabot. Thank you. The gentleman's time has expired.
The gentleman from North Carolina, Mr. Watt, is recognized
for 5 minutes.
Mr. Watt. Mr. Chairman, let me defer to Mr. Scott, if I
can. I'm trying to see whether there are any things I need to
question about.
Mr. Chabot. Okay. All right. We'll just start from scratch
here then, and yield to the gentleman from Georgia. Mr. Scott
is recognized for 5 minutes, and then we'll come back to Mr.
Watt.
Mr. Scott of Georgia. Thank you, Mr. Chairman.
Mr. Weinberg, I wanted just start for a moment with your
suggestion that we move away from the Federal examiners,
because I--given your history, you were there at the beginning.
You understand the whole make up and need for both examiners
and observers. I'm not quite convinced, just from my own
preliminary investigation of this that we may need to do away
with examiners.
And your reason for saying we may need to modify or do away
with the examiners was that the link doesn't exist. And I think
your meaning of the link that I got was your quote was that
there were no more hostile elected officials.
Can you elaborate on that, because there is still, in my
estimation, hostile elected officials in various pockets of the
South, and, a matter of fact, all across this nation. And if
that is the link that you think doesn't exist, I am here to
assure you that it does still exist.
I'm always of the opinion that we move with and err on the
side of caution. In Georgia, for example, there are still
300,000 eligible African-Americans that are unregistered to
vote, and time after time and case after case, we have
documented hostility. Crosses are still being burned. In some
of these areas, voters are being intimated.
So I'm very concerned about doing away with that, and
especially in view of the fact that the Federal examiners are
used as the trigger to determine whether or not to send these
observers in. So how do we replace that trigger? But would you
mind elaborating on that linkage?
Mr. Weinberg. Sure. I'd be happy to.
I agree with you a hundred percent that there are hostile
polling place officials throughout the country, and that's one
of the reasons that I think the Federal Observer provision is
so important.
The link I was talking about is it was a specific link to
newly federally registered voters, as it existed between 1965
and 1972 in the South. As the Voting Rights Act was
constructed, the observers were to watch specifically to see if
those particular voters were being hostilely treated in the
polls. And the complaint structure of the Federal examiners was
as to complaints as to the mistreatment of those newly
enfranchised voters.
The passage of time has taken care of many of those
situations. Certainly, some of those same areas are areas where
Federal observers still would be assigned.
But it's not because those African-American voters have
just been put on the roles by a Federal examiner. The problem
is both broader and deeper than that. And I think Federal
observers are necessary for that.
The Federal Examiner function for registering voters,
however, has been--it hasn't been used in 30 years. There were
a couple of isolated instances of Federal registration in 1982
and 1993, but apart from that, it hasn't been used since the
1970's, in some part because of the success of the Voting
Rights Act, but also because of the enactment of new laws that
make voter registration a lot easier--the restrictive hours and
locations that people were faced with in the '60's. Now, you
can register by mail.
So there are improvements in the voter registration
process, and it is the voter registration process and the
maintenance of the names of those people who were listed in
1965 to 1972 that the examiner provisions of the Voting Rights
Act are geared to.
So it has nothing to do with the need for Federal observers
to get information on violations in the polling places--
discrimination against racial or language group members. That's
going on nationwide, and I think the observers are necessary
for that.
Mr. Scott of Georgia. Mr. Weinberg, why are then--why was
the Federal Examiner certification a prerequisite for bringing
in the observers in the first place?
Mr. Chabot. The gentleman's time has expired, but you can
answer the question.
Mr. Weinberg. All right. The Voting Rights Act after the
Selma to Montgomery March brought everything to a head in early
1965. The big focus was on getting people registered to vote.
It was--we were talking total disenfranchisement. And so we
needed to allow people to get on the voting rolls, and the way
that the Voting Rights Act is constructed, if you read the
sections 6 and 7, you'll see a very, very intricate pattern of
getting people to--into the examiners, to list them, to turn
the lists over, and this was a big deal because you were taking
a Federal employee, a Federal examiner, and inserting that
Federal examiner into what is a State and local process, which
is voter registration. The principles of federalism were very,
very strong, and this was an extraordinary remedy, the first
time ever in this country, that you had these Federal officials
coming in and just taking over, just taking over and without a
court order. It was just an administrative decision. In order
to make that administrative decision have the import that it
needed to insert those Federal people into the State function,
the Voting Rights Act drafters had the Attorney General
personally sign a certification that this was necessary to
enforce the 14th amendment and 15th amendment.
And that's how this came to be. The reason they're linked
is because the drafters then thought, well, we have all these
newly enfranchised voters coming into these terribly hostile
polling places, we can't just let them wander in there. But
what are we going to do? They say, well, we'll have authorized
Federal observers to watch what happens and get the information
back to the Attorney General so the Justice Department could
take action if it was needed.
Mr. Scott of Georgia. Thank you, Mr. Chairman.
Mr. Chabot. The gentleman's time has expired. The gentleman
from North Carolina, Mr. Watt, is recognized for 5 minutes.
Mr. Watt. Thank you, Mr. Chairman.
Ms. Randa, when observers are sent out--have been sent out
in the past, has there a history of anybody complaining about
the observers. And, if so, what do those complaints normally
consist of and who normally makes them?
Ms. Randa. Any incidents or issues that come up during a
given exercise or observation would be put in the report and it
is then passed to Department of Justice, who maintains that and
decides whether to take any action on it.
We don't actually maintain that information, historically,
so I couldn't speak to the record on that. I know anecdotally,
years ago, there were sometimes issues getting access and
getting friendly treatment. But I don't believe that's been a
problem in recent years.
Mr. Watt. Mr. Weinberg, to some extent, what you are
proposing is constructing a new model for sending out
observers, which I think probably is a reasonably good idea.
The prior model applied that the observers to cover
jurisdictions, select jurisdictions for sending observers to;
isn't that right?
Mr. Weinberg. Right. The observers in all the specially
covered jurisdictions.
Mr. Watt. Is there--in the construction of the new model
that you are proposing, if you were constructing a new model
that didn't apply only to covered jurisdictions--it applied in
some triggering fashion that triggered based on complaints or
suspicions, how would you articulate what the standard would
be? You said at one point I think in your testimony that you
thought maybe the observer provisions ought to be applied
nationally. But how would you articulate the standards that you
would use to trigger it?
Mr. Weinberg. Yes. My idea would be to keep the Federal
observers tied to the Voting Rights Act enforcement. And you
would need a finding by the Justice Department that the
provisions of the Voting Rights Act are being violated or
actions are happening which would constitute violations of the
Voting Rights Act. You need that finding before----
Mr. Watt. Are being violated or--I mean it's too late after
they've been violated. The election is taking place. So you'd--
I mean you'd have to be looking at some imminent danger.
We presumed under the old framework that there was imminent
danger because there was a history, and we know that there is
some imminent danger going forward, because people are engaging
in this--or appear to be engaging in some conduct. But I'm just
trying to figure out how you would articulate what the standard
would be for the Justice Department to trigger the observer
provisions?
Mr. Weinberg. Yes. The law now talks about circumstances
that appear to be reasonably attributed to violations of the
14th and 15th amendments.
All along, before a certification can be made and even now,
before Federal observers are assigned, the Justice Department
makes a determination that racial and language minority group
members are facing circumstances in the polling place that
would violate the Voting Rights Act. We get that information by
conducting investigations, conducting interviews in the normal
way one would investigate a possible violation of a Federal
law.
When you reach that conclusion, you don't have to have
proof by a preponderance of the evidence in a structured way
that the violations have occurred. What you need is information
that indicates that those violations are occurring, and that's
basically what happens.
Mr. Watt. So it would be some kind of good faith
determination by the Justice Department that a violation of the
14th or 15th amendment has or is about to occur?
Mr. Weinberg. Right.
Mr. Chabot. The gentleman's----
Mr. Watt. May I ask unanimous consent for one additional
minute----
Mr. Chabot. Without objection, so ordered.
Mr. Watt. --just to ask one additional question of Mr.
Weinberg.
The reports of the observers--you testified you don't think
they ought to be made public, published, unlike when we're
observing elections in other countries.
What's done with those reports now?
Mr. Weinberg. Those reports are used by the Justice
Department attorneys to determine whether more legal action is
needed, if there's already a lawsuit pending or if there's no
lawsuit, whether a legal action is needed. And I should say
also that these reports are not always kept from public view.
They're--the redacted versions have been released under the
Freedom of Information Act. I mean there are ways to see them.
Often, they're not all that illuminating since they're----
Mr. Watt. But wouldn't it serve some deterrent effect for--
to future voting rights violations to publish the reports of
the observers?
Mr. Weinberg. Yes. I think the deterrent effect is in the
legal action by the Justice Department, and I think that's been
shown to be very effective.
And since these reports often are also used if a court has
certified a county, the report goes to the court. And the
reports are used in those instances to determine liability of
the defendant or the county and whether the relief has been
adequate. So they are in that sense used right away, and I
think the deterrent effect is really adequate the way it exists
now.
Mr. Chabot. The gentleman's time has expired.
The Chair, in light of the fact that this is the ninth
hearing in this--on the Voting Rights Act and we have more to
come at some future point has been avoiding second rounds.
However, the Chair would like to ask one question. And it's my
understanding the Ranking Member has an additional question as
well, so I would recognize myself for a minute.
And if I could, Ms. Pew, ask you a question, and this is
again establishing--one of our principal goals here is to
establish a record in light of the fact that this may well be
before the Supreme Court some day.
Let me ask you what types of discrimination do minorities
sometimes continue to experience in polling places that you're
aware of?
Ms. Pew. Well, it's my experience that given the outline
and the guideline that was given to us in the consent decree
that we've complied with and continue to, even though it is now
outdated and we're not made to do that, we continue to do that,
and we're not seeing discrimination. We are--we've got a robust
program that is reaching out and based on the numbers of the
voters that are increasing, we're not seeing the
discrimination.
Mr. Chabot. Yeah. What were the discriminations based upon
in the consent decree that you----
Ms. Pew. They were based on denial. They weren't able to
read the ballot. They weren't able to understand the ballot.
Things were posted in the newspapers by statute, but they
couldn't understand them, and that's definitely a disadvantage
to someone who is not only maybe language non-speaking, but
very language limited as far as even in their cultural, their
native language. They don't read Navajo a lot of them.
And so it is a verbal language. It is important that all of
these things be looked at. And I believe that given the outline
we have in the consent decree and the things that we're still
following that it needs to continue.
Mr. Chabot. Okay. All right. Thank you very much.
The gentleman from Michigan is recognized for two
additional minutes.
Mr. Conyers. Thank you, Mr. Chairman.
Mr. Weinberg, you've noted that there haven't been any
complaints regarding federally listed voters over the last 20
years. But do we need new tools to deal with the sometimes
large-scale purges of eligible voters from the voting rolls?
How do we keep voters on the voter rolls if we eliminate
examiners and observers--as I understand are only at the polls
on election day.
Mr. Weinberg. The Federal Observer provisions don't address
all of the violations that could occur with regard to voter
registration and voting. It's really--it really has to do with
what happens inside the polling places on election day. But the
law certainly is adequate as it stands to deal with other
discriminatory actions and that would include discriminatory
purges of the rolls.
Mr. Conyers. Who would do it?
Mr. Weinberg. The Justice Department could do it.
Mr. Conyers. But they wouldn't have to be observers?
Mr. Weinberg. No. No.
Mr. Conyers. They would be what kind of personnel?
Mr. Weinberg. It would be investigations in the normal
course of business at the Justice Department, investigations by
attorneys, by the FBI. That's how it works.
Mr. Conyers. Okay. Thank you, Mr. Chairman.
Mr. Chabot. Thank you very much, Mr. Conyers.
That concludes this hearing, and I want to thank the
witnesses again for their testimony. It has been very, very
helpful.
If there's no further business to come before this
Committee, we're adjourned. Thank you.
[Whereupon, at 2:03 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable John Conyers, Jr. a Representative
in Congress from the State if Michigan and Member, Subcommittee on the
Constitution
Despite the optimistic tone struck by our witnesses and members of
this Committee, racial and language minorities still face serious
obstacles to equal participation in the electoral process. During every
election cycle, my staff fields numerous complaints involving election
day mischief from around the country. While many simply involve
hardball campaign tactics, a troubling number cross the line into
questionable race politics that raises the issue of systematic
suppression of the minority vote.
During the 2002 election, I referred a complaint to the Department
of Justice concerning fliers circulated in African-American areas of
Baltimore, Maryland, that were intended to confuse and suppress voter
turnout in those communities. The flier misstated the date of election
day and implied that payment of overdue parking tickets, moving
violations and rents were qualifications for voting. Similarly, During
the 2003 Kentucky gubernatorial election, I referred a complaint to the
Department concerning reports that 59 precincts with significant
African-American populations had been targeted for vote challenges by
local campaign officials.
These kind of tactics have been the target of injunctive relief by
the Department under provisions of the Voting Rights Act of 1957. For
example, in 1990, the Department sued over a so-called ``ballot
security'' program in North Carolina, where postcards were mailed to
African- American voters that were designed to discourage them from
coming to the polls by providing misinformation about the requirements
for voters. As a remedy to these allegations of voter intimidation, the
parties entered into a consent decree, but the damage was done, with
the major African-American candidate losing a close election./1/
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/1/ Consent Decree in United States of America v. North Carolina
Republican Party, No. 91-161-CIV-5-F (Feb. 27, 1992).
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The failure of the 1957 Act to bring prospective relief for
interference with the right to vote was the main reason behind the
enactment of Sections 3, 6 & 8 for the Voting Rights Act of 1965. These
provisions give the federal courts and the Attorney General the
authority to monitor the procedures in polling places and at sites
where ballots are counted to enforce the voting guarantees of the
fourteenth or fifteenth amendments. Unlike, mere attorney coverage or
election monitoring by the advocacy community, these provisions give
federal monitors the legal authority to enter all polling places, and
even the voting booths themselves, to provide the closest scrutiny of
the elections process.
To date, a total of 148 counties and parishes in 9 states have been
certified by the Attorney General for election monitoring pursuant to
Section 6./2/ In addition, 19 political subdivisions in 12 states are
currently certified for election monitoring by federal court order,
pursuant to Section 3./3/
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/2/ Alabama (22 counties), Arizona (3), Georgia (29), Louisiana
(12), Mississippi (50), New York (3), North Carolina (1), South
Carolina (11) and Texas (17).
/3/ California (6), Illinois (1), Louisiana (1), Massachusetts (1),
Michigan (1), New Jersey (1), New Mexico (2), New York (3),
Pennsylvania (1), South Dakota (1), Texas (1), and Washington (1).
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On election day last week, the Department sent federal observers
and Justice Department personnel to 16 jurisdictions in seven states to
monitor elections, including Hamtramck, Michigan, a jurisdiction partly
within my district which had an ugly episode of discrimination against
Arab-Americans at th polls in 1999. In 2004, the Department coordinated
and sent 1,463 federal observers and 533 Department personnel to
monitor 163 elections in 105 jurisdictions in 29 states.
I believe that the monitoring of elections by federal observers is
an important aspect of the Voting Rights Act that should be
reauthorized. As prior witness testimony has clearly shown,
discrimination at the polls remains a problem. Where jurisdictions have
a record of discrimination or current threats exist to ballot access,
minority voters should not have to wait for federal assistance to come
after the fact.
Monitors play the important role of addressing concerns about
racial discrimination and ensuring compliance, so that voters can rely
on a fair process now, rather than waiting for litigation later.
Given the fact that the Department has trumpeted its ``voter
protection'' programs, I am disappointed that they did not appear today
at today's hearing. In numerous press releases, the Department has
appeared to express a strong commitment to the monitoring program,
especially in the area of Section 203's bilingual election
requirements. There are questions, however, about the rising emphasis
on attorney coverage, the limited number of certifications under
Section 6, and whether there has been a shift in enforcement
priorities. While Mr. Weinberg can act as an able proxy for the
Department in most areas, only the Department can definitively respond
to these questions.
Before closing, I must commend the work of the Office of Personnel
Management, whose efforts at recruiting, training, and supervising
election monitors is the key to the program's success. Ms. Randa, I
look forward to your testimony and hope that you address ways of
improving the long-term viability of the monitoring program.
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Appendix to the Statement of Penny Pew: Election Materials
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Appendix to the Statement of Penny Pew: Prepared Statement of Penny Pew
submitted to the National Commission on the Voting Rights Act
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Appendix to the Statement of Barry Weinberg: Problems in America's
Polling Places: How They Can Be Stopped; Temple Political and Civil
Rights Law Review, Spring 2002
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Prepared Statement of the Honorable Bradley J. Schlozman, Principal
Deputy Assistant Attorney General, Civil Rights Division, Department of
Justice, Concerning The Voting Rights Act: Sections 6 and 8, Federal
Examiner and Observer Programs
Chairman Chabot, Ranking Member Nadler, distinguished members of
the Subcommittee:
I am Bradley Schlozman, the Principal Deputy Assistant Attorney
General of the Civil Rights Division at the Department of Justice. As I
have underscored in previous testimony before this Subcommittee, the
President has directed the full power and might of the Justice
Department to enforcing the Voting Rights Act and preserving the
integrity of our voting process. This Administration looks forward to
working with Congress on the reauthorization of this important
legislation.
It is my privilege today to provide you with an overview of the
Justice Department's use of sections 6 and 8 of the Voting Rights
Act,\1\ which pertain to Federal examiners and Federal observers. As
you know, these provisions, like section 5,\2\ are slated to expire in
August 2007.
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\1\ 42 U.S.C. 1973d, 1973f.
\2\ 42 U.S.C. 1973c.
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FEDERAL EXAMINERS
Let me begin by explaining what ``federal examiners'' are within
the meaning of the Voting Rights Act. Federal examiners are essentially
officials assigned to a particular political subdivision to whom
certain complaints of voting discrimination can be made. Governed by
section 6 of the Act, the authority to appoint Federal examiners was
first designed as a congressional response to the racially
discriminatory voter registration practices that existed throughout the
South at the time of the Act's original passage in 1965. Examiners are
charged with processing (or ``examining'') applicants for voter
registration and making a list of those applicants who meet State
eligibility rules; the list is then given to the local county
registrar, who is required to put those names on the county's voter
registration rolls. Those on the examiner's list are commonly called
``federally registered voters.'' The Voting Rights Act also requires
the examiners to be available during each of the jurisdiction's
elections, and for two days afterward, to take complaints from any
federally registered voter claiming that he/she had not been allowed to
vote.
Federal examiners can be appointed in two separate ways. The first
route is through section 6's empowerment of the Attorney General to
``certify'' for the appointment of Federal examiners any jurisdiction
falling within the coverage of the Voting Rights Act in which there is
reason to believe that voters have been denied the right to vote on
account of their race or status as a language minority. In particular,
the Attorney General must certify that either: (i) he has received
complaints in writing from twenty or more residents alleging that they
have been denied the right to vote under color of law on account of
race or color or because they are a member of a language minority and
he believes such complaints to be meritorious; or (ii) in his judgment,
the appointment of examiners is necessary to enforce the guarantees of
the 14th or 15th Amendments. The second method by which Federal
examiners may be appointed is for a Federal court to do so pursuant to
section 3(a) as part of an order of equitable relief in a voting rights
lawsuit to remedy violations of the 14th or 15th Amendment. Judicial
certifications, unlike those of the Attorney General, are not
restricted to those political subdivisions covered by section 4 of the
Voting Rights Act. Regardless of who makes the formal certification,
once the determination is made, the actual selection of the examiner is
undertaken by the Director of the Office of Personnel Management (OPM),
who then oversees the examiner's activities.
The Voting Rights Act's ban on literacy tests and other
discriminatory practices has mitigated many of the voter registration
problems that made examiners so important. As a result, the need for,
and role of, Federal examiners has greatly diminished over time.
Although there are still 148 counties and parishes in 9 States that the
Attorney General has certified for Federal examiners,\3\ nearly all of
these certifications were certified shortly after the Voting Rights Act
was passed in 1965 when conditions were radically different from
today.\4\ Moreover, many of the counties/parishes have not been the
source of any race-based voting registration complaints for decades.
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\3\ There are also 19 political subdivisions in 12 States currently
certified by court order. With two exceptions, all of these
certifications pertain to language-minority issues. An additional 14
jurisdictions in eight States previously were certified for Federal
examiners by Federal courts under section 3(a), but the designations
have since expired.
\4\ The complete list of counties certified by the Attorney
General, along with dates of certification, can be found on the website
of the Department of Justice's Voting Section. See http://
www.usdoj.gov/crt/voting/examine/activ--exam.htm.
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According to OPM, there have been no new ``federally registered
voters'' (i.e., voters registered by Federal examiners) added in any
jurisdiction throughout the country since 1983. Nor has the Department
of Justice received any complaints about covered jurisdictions refusing
to register Federal voters in decades.
In addition to the great advances in minority access to the
franchise today as compared to 30-40 years ago, the decline in
registration-related complaints is also attributable to the passage of
the National Voter Registration Act of 1993 (NVRA), which made voter
registration dramatically more accessible.\5\ Prior to this 1993 Act,
there were few Federal standards for voter registration. Through the
NVRA, however, Congress established specific, uniform requirements for
voter registration and State maintenance of voter registration lists.
All of these requirements are applicable across the United States, not
just in those jurisdictions certified for Federal examiners or
otherwise covered by the Voting Rights Act. The reality today is that
the only real importance of the Federal examiner provision from a
practical standpoint is its function as a statutory prerequisite to the
Attorney General's ability to call upon OPM to assign Federal observers
to monitor particular elections in certified jurisdictions.
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\5\ 42 U.S.C. 1973gg et seq.
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FEDERAL OBSERVERS
At any time after a Federal examiner has been appointed to a
particular jurisdiction, the Attorney General may request under section
8 that the Director of OPM assign Federal observers to monitor
elections in that jurisdiction.\6\ These observers are Federal
employees who are recruited and supervised by OPM. They are authorized
by statute to enter polling places and vote-tabulation rooms in order
to observe whether eligible voters are being permitted to vote and
whether votes casts by eligible voters are being properly counted.
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\6\ 42 U.S.C.1973f.
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The OPM observers work in conjunction with attorneys from the
Justice Department's Civil Rights Division. Department of Justice
attorneys assist OPM with the observers' training,
brief the observers on relevant issues prior to the election, and
work closely with them on election day. Federal observers are
instructed to watch, listen, and take careful notes of everything that
happens inside the polling place/vote-tabulation room during an
election. They are also trained not to interfere with the election in
any way. After the election, Justice Department attorneys debrief the
observers, and the observers usually complete written reports on their
observations. These reports are sent on to the Civil Rights Division
and can be used in court if necessary.
Most Federal observers dispatched to cover elections find no
irregularities. Still, problems occur. Over at least the last decade,
most of these have related to compliance with the language minority
requirements of section 203.\7\ Where problems are discovered, a
variety of actions may be taken depending on the relevant
circumstances. On occasion, Justice Department personnel will assess
the situation and work with county/parish officials on election day to
clarify Federal legal requirements and immediately resolve the
identified problem. Other times, the Department will send a letter to
the jurisdiction following the election in which we identify certain
incidents or practices that should be addressed or improved in the
future (e.g., removal of certain poll workers, additional training for
election-day officials, etc.). Department attorneys likewise may
recommend further investigation. If no Federal issues are identified,
the matter may be referred to State authorities. If necessary, the
Department will commence a civil action (or contempt motion if
applicable) to enforce the protections of the Voting Rights Act.
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\7\ 42 U.S.C. 1973aa-1a.
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Notwithstanding the general overall compliance with the Voting
Rights Act, the Department of Justice has taken full advantage of the
Federal observer provisions to help avoid slippage or complacency by
covered jurisdictions. In 2004, for example, the Civil Rights Division
worked with OPM to send 1,463 observers to cover 55 elections in 30
jurisdictions in 10 different States. Meanwhile, already in 2005,
Federal observers have been dispatched to 21 elections in 17
jurisdictions in 10 different States.
In areas of the country where Federal observers cannot be sent, the
Civil Rights Division will send it own staff lawyers to monitor
elections if it has received complaints or has uncovered credible
evidence of possible violations of the Voting Rights Act. In fact, the
great bulk of our recent enforcement cases since, say, 1993, have
involved jurisdictions (e.g., Massachusetts, California, New York, New
Jersey, Florida, Washington, and Pennsylvania) where there is no
statutory authority to send Federal observers. We have expended
substantial resources in this endeavor. For example, in 2004, the
Department of Justice sent 533 departmental personnel to monitor 108
elections in 80 jurisdictions in 27 different States. So far in 2005,
the Department has sent 186 personnel to cover 24 elections in 21
jurisdictions in 9 different States. Those monitors helped account for
the record-setting work we have done in enforcing the Voting Rights Act
in recent years.
As I have said before to this Subcommittee, the Civil Rights
Division has made the vigorous enforcement of voting rights a primary
objective, and we have been very successful in doing so. Our election
monitoring and observer coverage is just one small part of that effort.
I thank the committee for the opportunity to submit this statement.
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Inserted into the Record by Congressman Watt during the hearing: Letter
from William Jenkins, Director, Homeland Security and Justice Issues,
Government Accountability Office, to the Honorables Joseph Lieberman,
Henry Wazman, and John Conyers, Jr. regarding the Department of
Justice's activities to address past election-related voting
irregularities
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