<DOC>
[110 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:44821.wais]
S. Hrg. 110-545
PROTECTING THE CONSTITUTIONAL RIGHT TO VOTE FOR ALL AMERICANS
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
----------
MAY 20, 2008
----------
Serial No. J-110-96
----------
Printed for the use of the Committee on the Judiciary
PROTECTING THE CONSTITUTIONAL RIGHT TO VOTE FOR ALL AMERICANS
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S. Hrg. 110-545
PROTECTING THE CONSTITUTIONAL RIGHT TO VOTE FOR ALL AMERICANS
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
MAY 20, 2008
__________
Serial No. J-110-96
__________
Printed for the use of the Committee on the Judiciary
COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
Bruce A. Cohen, Chief Counsel and Staff Director
Stephanie A. Middleton, Republican Staff Director
Nicholas A. Rossi, Republican Chief Counsel
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 5
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement........................................... 223
Kohl, Hon. Herb, a U.S. Senator from the State of Wisconsin,
prepared statement............................................. 222
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode
Island......................................................... 3
WITNESSES
Goldman, Jonah H., Director, National Campaign for Fair
Elections, Lawyers' Committee for Civil Rights under Law,
Washington, D.C................................................ 12
Karlan, Pamela S., Kenneth and Harle Montgomery Professor of
Public Interest Law, Stanford Law School, Stanford, California. 8
King, J. Bradley, Co-Director, Indiana Election Division, Office
of the Secretary of State, Indianapolis, Indiana............... 7
Mitchell, Cleta, Partner, Foley & Lardner LLP, Washington, D.C... 10
Payton, John, President and Director-Counsel, NAACP Legal Defense
and Educational Fund, Inc., New York, New York................. 4
QUESTIONS AND ANSWERS
Responses of Jonah H. Goldman to questions submitted by Senators
Leahy, Feinstein and Kohl...................................... 24
Responses of Pamela S. Karlan to questions submitted by Senators
Leahy and Feinstein............................................ 36
Responses of Bradley J. King to questions submitted by Senators
Feinstein, Kennedy, Kohl and Schumer........................... 45
Responses of Cleta Mitchell to questions submitted by Senator
Schumer........................................................ 60
Responses of John Payton to questions submitted by Senators Leahy
and Kennedy.................................................... 63
SUBMISSIONS FOR THE RECORD
AARP, Larry White, Government Relations, Washington, D.C.,
statement...................................................... 85
Associated Press, May 6, 2008, article........................... 91
examiner.com, November 6, 2006, article.......................... 94
Goldman, Jonah H., Director, National Campaign for Fair
Elections, Lawyers' Committee for Civil Rights under Law,
Washington, D.C., statement.................................... 96
Hurd, Maude, National President, Association of Community
Organizations for Reform Now (ACORN), statement and attachment. 140
Karlan, Pamela S., Kenneth and Harle Montgomery Professor of
Public Interest Law, Stanford Law School, Stanford, California,
statement...................................................... 156
King, J. Bradley, Co-Director, Indiana Election Division, Office
of the Secretary of State, Indianapolis, Indiana, statement and
attachments.................................................... 164
Mitchell, Cleta, Partner, Foley & Lardner LLP, Washington, D.C.,
statement and attachments...................................... 225
Muhlhausen, David B., and Keri Weber Sikich, Heritage Center for
Data Analysis, Washington, D.C., report........................ 239
National Gay and Lesbian Task Force and the National Center for
Transgender Equality, Washington, D.C., joint statement........ 262
NewsBusters.org, May 6, 2008, article............................ 267
Payton, John, President and Director-Counsel, NAACP Legal Defense
and Educational Fund, Inc., New York, New York, statement...... 269
People for the American Way, Tanya Clay House, Directory, Public
Policy, Washington, D.C., letter............................... 278
Project 21, National Center for Public Policy Research, September
28, 2007, article.............................................. 282
Samples, John, Director, Center for Representative Government,
Cato Institute, Washington, D.C., statement.................... 284
Simms, Robert A., Georgia Deputy Secretary of State, Atlanta,
Georgia, statement............................................. 290
United States District Court for the Western District of
Missouri:
Davis Indictment............................................. 298
Franklin Indictment.......................................... 302
Gardner Indictment........................................... 306
Stetson Indictment........................................... 310
USA Today, May 14, 2008, editorial............................... 314
Wall Street Journal, May 20, 2008, article....................... 315
von Spakovsky, Hans A., former Commissioner, Federal Election
Commission, and Counsel to the Assistant Attorney General for
Civil Rights, Department of Justice, article and attachment.... 319
PROTECTING THE CONSTITUTIONAL RIGHT TO VOTE FOR ALL AMERICANS
----------
TUESDAY, MAY 20, 2008
United States Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, Pursuant to notice, at 2:43 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Feingold, and Whitehouse.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. As I am sure you know, we had a roll call
vote, and it delayed our opening. This Committee meeting was
going to be jointly chaired by myself and Senator Kennedy, who
is the most senior member of our Committee and a former
Chairman. And the news has been rather shocking this afternoon
about Senator Kennedy, and I would hope that each of you would
hold him in your thoughts and prayers.
Two years ago, Members of Congress stood together on the
Capitol steps to reaffirm our commitment to achieving full
democratic participation by reauthorizing the Voting Rights
Act, and this Committee played a key role in reinvigorating
that landmark law. After nearly 20 hearings in the House and
Senate Judiciary Committees, we found that modern-day barriers
to voting continue to persist in our country. Now, only months
away from an important Federal election, we are here to examine
barriers to the ballot box and to look for ways to ensure that
the democratic process is open to all Americans. Whether they
are supporting the Republican or the Democratic nominee, all
Americans have the precious right to vote.
Oftentimes we associate voter disenfranchisement with
actions from a foregone era. We all recall the courage and
resilience of Americans who were bitten by dogs, sprayed by
water hoses, or beaten by mobs simply for attempting to
register to vote. They often did not even get to vote. They
were attempting to register to vote. We remember a time when
stubborn and recalcitrant State officials used discriminatory
devices such as poll taxes, grandfather clauses, literacy
tests--some literacy tests that most members of this Committee
would have a difficult time answering--all done to exclude
certain segments of our population from voting. Progress has
been made to forge a more inclusive democracy, but new voter
disenfranchisement tactics arise every election year. When we
reauthorized the Voting Rights Act, there were those who said
that it was not necessary. Many of us said, of course, it is
necessary. We did it to make sure that everybody today can
vote. To make sure our children can vote and our grandchildren,
all of them, will be able to vote. So this year is no
different. We find disenfranchisement tactics.
During the most recent mid-term elections, we witnessed
overt threats by armed vigilantes attempting to intimidate
Hispanic-American voters at the polls in Arizona. We witnessed
cross burnings intended to intimidate African-American voters
on the eve of an election in Louisiana. We saw organized
efforts in Maryland to deceive minority and low-income voters
with false information about polling locations and phony
endorsements.
We know from the recent hearing in the Senate Rules
Committee that no credible evidence of widespread, in-person
voter fraud exists. That lack of evidence, however, has not
stopped efforts by Republican State legislators in some States
to pass restrictive photo ID laws.
We also know that photo ID laws have already
disenfranchised voters this year. Two weeks ago, a dozen
elderly nuns in Indiana were turned away from the polls because
they did not possess the required photo ID. I understand that
several of them held expired photo IDs that were not sufficient
under Indiana's restrictive laws. So these elderly nuns were
turned away.
Fortunately, last week, the Missouri Legislature opted not
to follow Indiana's lead by passing a restrictive photo ID law.
And just yesterday, Governor Kathleen Sebelius acted to protect
voter access in Kansas. In her veto statement she declared that
she could not ``support creating any roadblock to prevent our
citizens from adding their voices to the democratic discourse
that makes our Nation great.''
Several members of this Committee recently sent a letter to
the Attorney General asking him to direct the Department to
vigorously enforce the Voting Rights Act so that novel photo ID
laws would not infringe on the voting rights of racial
minorities. We look forward to his response and to continuing
our oversight of the Civil Rights Division on this issue.
Last week, the White House withdrew the controversial, very
controversial nomination of former Department of Justice Civil
Rights Division official Hans Von Spakovsky to serve on the
important Federal Election Committee. While at the Division,
Mr. Von Spakovsky played a critical role in politicizing the
Department and moving the Civil Rights Division's focus away
from its traditional mission, which, of course, is to ensure
voter participation--not to stop voters, but encourage them to
participate. I think the Senate's refusal to confirm him to the
FEC sends a strong message that we will not reward his efforts
at the Justice Department to obstruct the path to the ballot
box.
On the brink of an election with record numbers of new
voters, our Government has to remain vigilant in protecting
people's rights. That means more than ever we need a Justice
Department that will work to ensure ballot access for all
Americans.
Federal courts are also critical to the protection of
voting rights. At key moments in our Nation's history, it was
only the Federal courts that acted to protect unfettered access
to the ballot box. When Virginia passed a law four decades ago
requiring voters to pay a $1.50 poll tax, the Supreme Court
invalidated the law. Simply because the tax would apply to
every voter did not make it permissible under the Constitution.
I regret that the current Supreme Court was not as
protective of the fundamental right to vote last month when it
failed to invalidate a restrictive Indiana law requiring voters
to present specific types of photo ID. Had just two Justices
been more protective of the right, those nuns, those Sisters of
Mercy in Indiana would have been able to vote in the primary
election 2 weeks ago. Because the burdensome law was allowed to
stand, those sisters and untold others were disenfranchised. At
a time when the Justice Department has departed for political
reasons from enforcement of voting rights in favor of advancing
partisan goals, the Federal courts need to provide the check
and balance that the Framers of our Constitution intended.
Our great Nation was founded on the radical idea at that
time of a participatory democracy. Our founding document begins
with ``We, the People...'' Successive generations of Americans
have come together to amend our Constitution six times to
expand the participation of its citizenry in the election of
the Government--to former slaves, to women, to young people, to
include the direct election of Senators, and to prohibit poll
taxes. In this way, ``We, the People'' have reiterated and
affirmed the fundamental importance of the right to vote. We
should all remember Judge Wisdom's analysis in the 1963 case of
United States v. Louisiana, where he noted that a law that
burdens a citizen from access to the franchise is a wall that
must come down. And his words are as true today as they were 45
years ago.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
So I look forward to this panel, and I am delighted that
Senator Whitehouse has joined me. As I mentioned before, we all
know why Senator Kennedy is not here. Senator Kennedy was going
to co-chair this with us. Did you have anything to say before
we go to the witnesses? Senator Whitehouse has agreed to co-
chair it with me.
STATEMENT OF HON. SHELDON WHITEHOUSE, A U.S. SENATOR FROM THE
STATE OF RHODE ISLAND
Senator Whitehouse. Chairman, I appreciate very much that
you have called this hearing. I think this is a particularly
significant topic as we approach the November elections, and I
note that as I sit here, I am sitting in Senator Kennedy's
seat. His nameplate is right here in front of me. And I would
just like to join you in taking this opportunity to wish him
and his family well as they deal with the diagnosis that he has
recently received. As many of his friends and admirers in this
body have noted, he is one tough fighter. And so he certainly
has that going for him. Other than that, I am happy to go to
witnesses.
Chairman Leahy. Thank you.
Our first witness is Mr. John Payton, the new Director-
Counsel and President of the NAACP Legal Defense Fund. He is
the sixth person to lead the Legal Defense Fund in its 67-year
history. He continues the legacy of an organization started by
Thurgood Marshall. He is recognized as one of the premier
litigators in the country. His civil rights experience includes
Supreme Court arguments defending the use of race-based
remedies in the University of Michigan's admissions criteria.
He has taught at Harvard, my alma mater Georgetown, and Howard
Law School.
Mr. Payton, we are glad to hear from you, and we will go
through each one before we open it to questions. Mr. Payton?
STATEMENT OF JOHN PAYTON, PRESIDENT AND DIRECTOR-COUNSEL, NAACP
LEGAL DEFENSE AND EDUCATIONAL FUND, INC., NEW YORK, NEW YORK
Mr. Payton. Thank you very much. Before I begin, I want to
join both of you in wishing Senator Kennedy all the best. He is
a special champion for justice and equality and has championed
all the things that I personally stand for and that LDF stands
for. So I just thought I simply had to say that.
Thank you for this opportunity to appear at this very
important hearing.
Mr. Chairman, as you noted, our history is littered with
disgraced efforts to prevent significant portions of otherwise
eligible voters from voting. Initially, of course, virtually
all African-Americans were denied the vote, and more. They were
denied virtually all rights. And even after the Civil War
amendments, which were passed to address the exclusion of
African-Americans from the political process, we witnessed
intricate legislative and other actions designed to suppress
the African-American vote.
So the history of our progress, as you noted, as a
democracy is marked by measures designed to eliminate those
burdens on the exercise of the most important political right
that we have--the right to vote.
Recently, we have seen a very disturbing turn in the
opposite direction. On its face, the idea that Indiana would
require a Government-issued photo identification for registered
voters seeking to vote may initially seem sound and reasonable
to some. But just a little probing exposes the harm that it
causes without any corresponding benefit it may provide.
As Justice Stevens said in his lead opinion upholding the
law, when he was discussing and describing the law as
addressing in-person voter impersonation fraud, as he said,
``The record contains no evidence of any such fraud actually
occurring in Indiana at any time in its history.''
Let me be blunt. Nothing was broken that this law is
designed to fix. Nothing.
Obviously, we now have to look at what are the burdens, and
the burdens are quite considerable. Obviously, initially voter
identification requirements do not pose a challenge for those
Americans who already possess some form of Government-issued
identification. But for all the other people who do not possess
a Government-issue photo identification--and those are the
people who are on the margins of our economy and on the margins
of our society, those people who are less mobile and who do not
rely upon such IDs in their normal day-to-day lives, for those
people obtaining this kind of identification, such as, you
know, a passport or a driver's license, requires them to get
documents that they simply do not have, like a birth
certificate or other documents that are not easily obtained,
will cost money, and will take a lot of time, hassle, and
annoyance.
Now, some people think that this is really not that big a
deal, but I think the entire country had some insight into what
it means to live on the margins of our society just 4 years
ago, in 2005 with Hurricane Katrina. As the full horror of
Hurricane Katrina unfolded before our eyes and we saw tens of
thousands of African-Americans trapped in New Orleans' Lower
9th Ward and other places by the flood waters, some wondered
why they had simply not gotten into their cars and driven away
to safety. The stark reality of grinding poverty for those who
live on the margins of our economy is that they did not have
cars, they did not have credit cards, they did not have ATMs,
and many of them did not have driver's licenses. All of them
were part, as you said, Mr. Chairman, of ``We, the People,''
and all of them should have the right to participate in our
democracy. The Indiana law, which was enacted 5 months prior to
Katrina and the Crawford decision, all but ignored this.
At the Indiana primary 2 weeks ago, LDF had a team of
lawyers on the ground. Here is what they saw: Voters without
qualifying identifications were turned away. Indiana does not
keep track of how many were turned away at all, so we do not
really know the total numbers. LDF provided assistance to some
of those and helped them, in fact, go get their
identifications. If we had not been there, they would not have
been able to do that.
Poll workers, most disturbingly, poll workers told LDF that
those voters who showed up without IDs were not routinely told
that they could cast a provisional ballot. That was the safety
net the Supreme Court relied on. It is not enough to say that
just because some voters managed to vote in spite of these
burdens that we should overlook the effect that these burdens
have on other voters. Some people, after all, managed to get
away from the Lower 9th Ward and the flood waters of Katrina.
But we also know that no one wanted to be trapped there. These
are real and consequential burdens on our most important
critical right--the right to vote.
Democracy thrives when it is practiced, and it suffers when
practice is prevented. The challenge we now face is determining
how to structure the political process in a way that is more
inclusive and provides affirmative opportunities for broad and
meaningful participation, and I hope this Committee and this
Congress will take up that mantle and see that we have greater
voter participation and oppose all efforts that result in lower
voter participation. This is a crucial moment.
[The prepared statement of Mr. Payton appears as a
submission for the record.]
Chairman Leahy. Thank you very much, Mr. Payton.
We have been joined by Senator Feingold of Wisconsin. Did
you want to say anything before we go to Mr. King?
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. If I could, I want to join in expressing
my concern about the news about Senator Kennedy's health, and
my thoughts and prayers are with him and his family. It is a
little odd on a day like this to continue with our work as if
nothing has happened, and particularly on an issue like this,
where Ted Kennedy has been at the center of the Senate's work
on this entire issue. But, obviously, the Senator has--
Chairman Leahy. If the Senator would just yield on that, I
announced at the beginning this was a hearing that Senator
Kennedy had requested we were going to co-chair. I considered
canceling, and I thought out of respect for Senator Kennedy, we
would go forward.
Senator Feingold. Obviously, Senator Leahy, you know this
history much better than I do. But in the 16 years I have been
here, every time there has been a hearing on this issue, it is
related to the work of Senator Kennedy.
Mr. Chairman, I just want to also thank the witnesses for
joining us today for this important hearing. I was deeply
disappointed by the Supreme Court's decision in the Crawford
case. The expansion of the right to vote is one of the most
important parts of our country's history, and I fear the
decision will lead to the disenfranchisement of many citizens.
We cannot simply be disappointed. The Supreme Court now stands
on the wrong side of history. It is incumbent on us to now act.
Congress's responsibility to protect the right to vote
remains intact, and the Supreme Court's recent decision
urgently compels us to fulfill that duty. It is part of that
duty to ensure that the executive branch abides by and enforces
our election laws: the Voting Rights Act, the National Voter
Registration Act, the Uniformed and Overseas Citizens Voting
Act, and the Help America Vote Act. And it is our duty to pass
further legislation that strengthens the integrity of the
electoral process, like Senators Schumer and Obama's Deceptive
Practices and Voter Intimidation Act, and Senator Whitehouse's
Caging Prohibition Act, both of which I am pleased to
cosponsor.
I also believe that we must attempt to address the low
voter turnout that has plagued this country for the last 40
years. So 2 weeks ago, just days after the Court issued its
decision, I introduced the Election Day Registration Act of
2008. I believe that nationwide election day registration is
the single most effective reform we can implement to fulfill
the promise of full participation in our electoral system by
all eligible citizens. This system has worked very well in my
State of Wisconsin.
Let Crawford be a clarion call to the forces of progress
and reform. Senator Bob La Follette of Wisconsin once said,
``We are slow to realize that democracy is a life and involves
continual struggle. It is only as those of every generation who
love democracy resist with all their might the encroachments of
its enemies that the ideals of representative government can
even be merely approximated.''
Mr. Chairman, it is our duty, as you well know and show
tremendous leadership on, to move forward after Crawford to
protect the right to vote of all citizens, even or especially
if the Supreme Court seems to be headed in the other direction.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Our next witness is J. Bradley King. Mr. King has served as
co-director of the Indiana Election Division of the Office of
the Secretary of State for 7 years. Is that correct, Mr. King?
Mr. King. Yes, sir.
Chairman Leahy. He is responsible for advising and
assisting county election officials, candidates, and political
party officials in Indiana. From 1999 to 2002, Mr. King served
as State Elections Director for the Secretary of State of
Minnesota.
Mr. King, please go ahead.
STATEMENT OF J. BRADLEY KING, CO-DIRECTOR, INDIANA ELECTION
DIVISION, OFFICE OF THE SECRETARY OF STATE, INDIANAPOLIS,
INDIANA
Mr. King. Thank you, Mr. Chairman and members of the
Committee. I am here to present information on Indiana's voter
ID law and its effect on voter turnout. Before I begin, if I
could, Mr. Chairman, I would like to join the sentiments
expressed by yourself and the other members of the Committee
with regard to the concern that the voters of Indiana share
with regard to Senator Kennedy. We recognize he has been a
strong voice in the Senate and the Nation for nearly 50 years.
We honor him for that and wish him well.
Indiana's law requires voters to present a photo ID before
casting a ballot. An ID must meet four requirements to be
acceptable for voting: it must display the voter's photo, the
voter's name, an expiration date, and be issued by the U.S.
Government or the State of Indiana.
The Indiana law includes many provisions which safeguard
the right of an eligible voter to cast a ballot. A voter is not
required to present ID if casting an absentee ballot by mail. A
voter who is indigent and unable to obtain an ID without paying
a fee may cast a provisional ballot. If the voter executes an
affidavit before the county, the ID law does not permit the
voter's claim of indigency to be disputed or denied. The
voter's provisional ballot will be counted.
Likewise, a voter who has a religious objection to being
photographed may cast a provisional ballot. If the voter
executes an affidavit before the county, the ID law does not
permit the voter's claim of religious objection to be disputed
or denied. The voter's provisional ballot will be counted.
The law also includes an exemption for voters whose ID has
recently expired, giving these voters a grace period of up to 2
years. Voters who forget to bring ID to the polls have safety
net. Voters can leave the polls, retrieve the ID, and return to
the polls to vote. If a voter cannot present the ID before the
polls close, the voter may cast a provisional ballot. If the
voter then provides ID to the county, the voter's provisional
ballot will be counted. This voter can even obtain an ID after
election day and present that ID to the county within 10 days.
The Indiana Bureau of Motor Vehicles issues free IDs and
provides extended hours to serve voters.
With these and other safeguards, in the eight elections
conducted since the adoption of the law, there have been no
reports of widespread disenfranchisement of voters. Initial
reports from the recent Presidential primary are consistent
with the striking lack of evidence that the law has
disenfranchised any significant number of Hoosier voters. The
State's voter information hotline had more than 1,300 calls
received during the 2008 primary. Only two of these calls
related to the ID law.
The media advised the State of another ID issue that has
been referenced regarding 12 members of the Order of the
Sisters of the Holy Cross. Indiana's Secretary of State said,
``The voter ID law applies to everyone. From all accounts, the
sisters were aware of the photo ID requirements and chose not
to follow them. They could have cast a provisional ballot and
received assistance in obtaining the proper photo ID within 10
days. They also could have voted an absentee ballot by mail.''
Indiana's provisional ballot voting indicates the law has
not suppressed voter turnout. Provisional ballots may be cast
for reasons totally unrelated to the voter ID law, such as when
a voter attempts to cast a ballot in a precinct where the voter
is not registered. In 2004 and 2006 general elections, only
two-tenths of 1 percent of voters cast provisional ballots in
Indiana for any reason. For the 2008 primary election,
preliminary information indicates that, once again, provisional
ballots were two-tenths of 1 percent of the total cast.
Following the enactment of the Indiana law in 2005, the
number of provisional ballots cast has fallen, and the
percentage of provisional ballots cast has remained the same.
Finally, voter turnout increased dramatically when
comparing the 2004 to 2008 primaries. Turnout information
provides no evidence that significant numbers of voters are
choosing not to participate due to the law. The 2008 primary
turnout percentage was almost double the 2004 primary and equal
to the November 2006 general election. Despite this remarkable
increase in turnout between 2004 and 2008, there were no
increase in reports of voters disenfranchised by the law.
Achieving the goal of protecting the constitutional right
to vote of all Americans is not impeded by the Indiana voter ID
law. Instead, ensuring that each eligible voter casts one, but
only one, ballot is fundamental in protecting our right to
vote.
Thank you for the opportunity to address the Committee
today.
[The prepared statement of Mr. King appears as a submission
for the record.]
Senator Whitehouse. [Presiding.] Thank you, Mr. King.
We will next hear from Professor Karlan.
STATEMENT OF PAMELA S. KARLAN, KENNETH AND HARLE MONTGOMERY
PROFESSOR OF PUBLIC INTEREST LAW, STANFORD LAW SCHOOL,
STANFORD, CALIFORNIA
Ms. Karlan. Thank you very much, Senator Whitehouse. I,
too, want to say something about Senator Kennedy, because the
last time I was in front of this Committee was testifying in a
hearing that he chaired as one of, as Senator Leahy noted, the
20 hearings that established a massive record before Congress
re-enacted the Voting Rights Act of 1965. Contrast those 20
hearings and the thousands of pages of records there with the
complete absence of any record of any fraud in in-person
impersonating voters, and you will see the difference, I think,
between what this Congress has done and what the State of
Indiana has done.
Now, you have my prepared testimony, and so I want to focus
on three issues that are highlighted there.
The first of them is the impact of the Supreme Court's
decision, which is because the Court was split three ways, what
we have is three--and you must think of them as the good, the
bad, and the ugly. Three of the Justices said that the law was
unconstitutional and they would strike it down and, I think it
is safe to say, most of the in-person ID laws. Three of the
Justices would uphold these laws regardless of their impact on
individual Americans, which I find a kind of shocking change in
how we think about the constitutional right to vote. And then
three of the Justices, in Justice Stevens's controlling
opinion, said that they would be prepared to entertain an as-
applied challenge to the law but not a facial challenge.
I just want to identify for you one of the reasons why I
think legislation is important here, and that is that as-
applied challenges are going to be devilishly difficult to
litigate in the context in which they are going to arise, which
is they are going to happen after close elections in which
perhaps hundreds of voters have been told that they lack ID;
some of them will have been turned away from the polls and
there will be no record, as Mr. Payton pointed out; some of
them will have cast provisional ballots but will be unable to
get the required documentation or unable to make it down to the
courthouse to satisfy them. And then you are going to have to
litigate these challenges in the context of a hotly contested
election.
We all saw what happened in 2000 when there were 537 votes
separating the two Presidential candidates in Florida. Just
imagine what is going to happen this time around if we have
voter ID laws that have disenfranchised some number of
individuals.
We already know that Indiana more nuns were disenfranchised
in one election than all the examples of in-person vote fraud
in Indiana's history stretching back to the 19th century. So I
think there is going to be a serious problem with these as-
applied challenges brought after the elections.
The second point I wanted to make is the point about the
fact that there are two ways in which the integrity of the
political process can be impaired. One of them is what voter ID
laws are ostensibly directed at, so-called false positives--
that is, cases where an individual who is not entitled to vote
nonetheless casts a ballot. But there is another thing that can
threaten the integrity of elections just as much, and that is
false negatives--that is, people who are prevented from voting
who are entitled to vote. And they are not just prevented from
voting by voter ID laws when they show up at the polls, and
there are really lots of people who will not satisfy these
laws.
If you listened to Mr. King's testimony, there are two
points there that I just wanted to highlight. One of them is
the point about indigent voters, which is they can go and they
can execute an affidavit of indigency and then be permitted to
vote. But they have to do this in every election. The State
does not say once you have proved you are indigent, we will
give you a card so you can vote again without having to show up
at the county clerk's office. And so think about the burden. If
you are too poor to spend the money to get an ID, you are
certainly not going to have a lot of money to go traipsing
around the county so that you can satisfy the right to vote.
The second is the requirement that the ID have on it not
just an expiration date, but also the voting address--now, I
voted in Connecticut for many years when I lived there. I lived
there and I also went to college there, but I did not go to
college the same place I lived. My driver's license had my
parents' home address on it. I voted where my college was. I
could not have satisfied the voter ID law. And that is going to
be true for lots of college students who are entitled by law to
continue their driver's licenses in their place of permanent
residence and to vote where they live. So there are going to be
lots of people for whom this law is going to have a burdensome
effect.
And when you think about the level of burden here, it is
going to occur election after election, and it seems to me that
if we are concerned about the integrity of the voting system,
we should be as worried about people who are prevented from
voting--prevented from voting by voter ID laws, prevented from
voting by intimidation at the polls, prevented from voting by
efforts to deter people from showing up at the polls as, for
example, happened in Orange County, where 14,000 voters in
largely Latino neighborhoods received mailings telling them
that immigrants cannot vote, which is false--of course,
immigrants can vote if they are citizens--and the like. And so
it seems to me that we should be as concerned that the people
who are prevented from voting as we are about the kind of
phantom example of in-person voter fraud.
I would just like to end with a quotation from Justice
Brandeis' concurrence in Whitney v. California, where he was
talking about laws that suppress speech. And he said, ``Men
feared witches and burned women.'' And what we have here is
people fear impersonating voters, and what they do is they
disenfranchise the poor, the disabled, the elderly, the
retired, and students instead. And I think it would be a
tribute to Senator Kennedy for the Committee to think about how
it wants to respond to the scourge of voter ID laws.
Thank you very much.
[The prepared statement of Ms. Karlan appears as a
submission for the record.]
Senator Whitehouse. Thank you, Professor Karlan. We
appreciate your testimony.
Ms. Mitchell, please proceed.
STATEMENT OF CLETA MITCHELL, PARTNER, FOLEY & LARDNER LLP,
WASHINGTON, D.C.
Ms. Mitchell. Thank you, Senator Whitehouse. I, too, want
to join in commenting upon Senator Kennedy and wish his family
and the Senator best health. I was a Fellow at the Institute of
Politics at Harvard University in 1981, nominated by Senator
Kennedy, so my acquaintance with him goes back many years.
My name is Cleta Mitchell. I am an attorney specializing in
the political law. I represent conservative issue
organizations, Republican candidates and party committees, and
citizens and donors all across the country interested in
participating in the political process. I am honored to be here
today to discuss with the Committee the integrity of America's
elections and voting process. I can assure you that every
organization, every entity, every campaign, and every candidate
with which I am involved is dedicated to one principle, which
is assuring that our voting systems are secure, that only
legally eligible voters cast ballots, and that every legally
cast ballot is counted to the highest degree of certainty and
accuracy.
But there are people and activist groups in this country
who contend that there is no voter fraud and that those of us
who try to say something or do something to protect the
integrity of the voting process must be idiots or, worse, that
we must be racists. I contend, I absolutely reject that
contention. I resent it, and I reject it. And I must say I am
sorry that Senator Leahy left because I want to take a moment
to defend Hans Von Spakovsky, who has been much maligned and
mistreated by many activist groups and by the Senate of the
United States during these months and years of his nomination
to the Federal Election Commission.
What Mr. Von Spakovsky did as a member of the--as a career
attorney at the Justice Department was that he refused, he
along with others refused to interject the Department into the
legislation that had been enacted by the State of Georgia
requiring voter identification, and they refused to deny
preclearance to the State of Georgia for that law. That was
litigated in Federal court, and after 2 years, when the
plaintiffs could not produce evidence, credible evidence, of a
disparate burden on minorities, the Federal judge dismissed the
case. And now the Supreme Court of the United States has upheld
the legal position that Mr. Von Spakovsky took. So I think that
it is time to stop castigating Mr. Von Spakovsky just because
we disagree with him.
I reject the premise that we are engaged in any effort to
deny any person the right to vote simply because we want to
assure that there are voting safeguards. In 1993, President
Clinton signed the motor-voter law, the National Voter
Registration Act, which allows individuals who apply for public
assistance or driver's licenses to allow those applications to
be used as well as voter registration applications. Since the
time that that was done, what we have seen is a massive
swelling of the voter rolls in the United States without a
commensurate increase in voter turnout or participation.
In 2001, Dr. John Samples of the Cato Institute testified
before the Senate Rules Committee, and he said, ``We should not
be surprised that the registration rolls throughout the Nation
are enormously inaccurate. In some places, the voting roll
numbers are bigger than the voting age population.'' There is
more, and the fact of the matter is what we have now in our
country is a situation where people deny that there is voter
fraud and, therefore, we do not need any safeguards.
So we want people to be able to not have to show
identification, yet when they register to vote, we cannot
require that they must demonstrate proof of identity or
residence. And now then, in trying to clean up the voter
registration rolls, Senator Whitehouse, you and others have
introduced legislation to make that impossible because we have
now come up with a new term of ``vote caging,'' where sending
letters to try to ascertain whether or not people actually live
where they say they live when they register to vote, to see
whether that is true.
It is a moving target, and the bottom line is that these
efforts to deny the existence of voter fraud--and in my written
testimony, I included a number of instances of vote fraud. And
anyone with 15 minutes and access to Google can find plenty of
evidence of voter fraud.
Now today, as I say, we have a moving target. Now today we
are supposed to talk about in-person voter fraud and if there
is no in-person voter fraud. I would question, How would we
ever know? You cannot take photographs to try to ascertain that
somebody is presenting himself or herself as someone who they
are not. That is illegal. And so how are we supposed to
demonstrate that there is in-person voter fraud. It is, as
Professor Karlan may say, trying to prove a positive or a false
negative, or whatever it is. But the fact is all of the
safeguards that should be in place to assure that every person
who is legally eligible to vote should be allowed to vote, that
those votes are counted, that they are properly counted, and to
assure and affirm that people's confidence that the voting
system is not disrupted and not destroyed by fraudulent
activities of those who would seek to destroy the integrity of
our voting process.
Thank you.
[The prepared statement of Ms. Mitchell appears as a
submission for the record.]
Senator Whitehouse. Thank you, Ms. Mitchell. We appreciate
your testimony.
Mr. Goldman?
STATEMENT OF JONAH H. GOLDMAN, DIRECTOR, NATIONAL CAMPAIGN FOR
FAIR ELECTIONS, LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW,
WASHINGTON, D.C.
Mr. Goldman. Thank you, Senator Whitehouse. I want to join
the chorus of sympathy for Senator Kennedy. The entire voting
rights community owes our inspiration to his example, his
fight, and his accomplishments. And truly I think that the
entire civil rights community would not be here without his
leadership, so we all have him in our thoughts.
I want to thank you for inviting me here today and for
holding this hearing on the foundational issue of our great
democracy--the fundamental right to vote. My name is Jonah H.
Goldman, and I am the Director of the National Campaign for
Fair Elections at the Lawyers' Committee for Civil Rights Under
Law, which spearheads election protection, the leading
nonpartisan voter protection coalition.
The Congress has a constitutional duty found in the 1st,
14th, and 15th Amendments to protect the rights of all eligible
Americans to cast a meaningful ballot. This primary season,
almost 50 million voters have already cast ballots.
Unfortunately, this civic exuberance has put tremendous weight
on a crumbling election infrastructure. In a general election,
up to 6 million real, eligible voters may be prevented from
exercising the right to vote because our election
administration system is poorly funded and decentralized.
During this year's primaries, Election Protection
identified four themes that lead to eligible voters being
disenfranchised: undertrained poll workers, voting technology
malfunctions, inaccurate voter registration lists, and problems
with voter identification requirements.
There are over 1.4 million poll workers across the country.
The overwhelming majority are committed to doing their job by
volunteering up to 18 hours on election day. However, voters
are turned away because poll workers lack training and guidance
on how to effectively administer an election. Many voters
cannot stand in long lines caused by too few poll workers or
because polling places open late or close early.
Problems with voting equipment also lead to eligible voters
being disenfranchised. In addition to technological glitches,
both poll workers and voters are confused about how new voting
technology works. Many jurisdictions do not have adequate
safeguards for when voting technology breaks down.
This year, more than 3.5 million new voters have
registered. That is up 65 percent from the same period 4 years
ago. We should all be proud of this powerful chorus of new
voices engaging in the process. Unfortunately, eligible voters
who submit timely registration applications find their names
are not on the registration rolls. Americans who have been
voting for years are missing from the rolls because of
irresponsible or discriminatory purges.
Voters in every State are also being turned away because of
confusion over voter identification requirements. Poll workers
are confused about when voters need to show ID and what is
required by State law.
Unfortunately, the debate over voter ID has distracted us
from a productive discussion of how to solve the real problems
voters face. As this Committee has heard, there are no shadow
bands of ineligible voters roving from polling place to polling
place to impersonate eligible voters and affect election
results. And no wonder, penalties are quite high--up to 10
years in prison and a fine of up to $10,000--and the prospects
of affecting election outcomes are quite low. As they should,
every State has a process for verifying voters' identities.
Most accomplish that goal without sacrificing the votes of
eligible citizens, which is what restrictive ID requirements
do.
During this year's Indiana primary, Election Protection
volunteer John Borkowski walked into a polling place on the
campus of St. Mary's College in South Bend. Students from the
college were being turned away because they only had ID from
the college, which is a private institution, as opposed to
Government-issued photo identification with an expiration date,
as required by Indiana law. While talking to one of the poll
workers, Sister Julie McGuire, John discovered that many of the
nuns who lived in the convent that housed the polling place
were also victims of this misguided policy. Many of the sisters
who did not have ID did not attempt to vote, and this is the
true scope of the tragedy: the millions of eligible voters
across the country without ID who will not show up at the polls
because they know they will be turned away.
Mr. Chairman, there are real problems with our election
system that prevent real, eligible voters with a deep desire to
participate in the proud tradition of our democracy from having
their voices heard. It is critical that Congress act to make it
easier, not harder, for eligible citizens to participate by
implementing common-sense solutions to the real problems voters
face. We should move toward universal registration by
implementing election day registration. We should prevent the
real fraud that happens in elections like offensive deception
and take away the tools of intimidation and dirty tricks like
voter caging. We need to provide a real infrastructure for
training poll workers and thoughtfully arrive at the best
voting technology. Americans believe Government should provide
the best election system, and we deserve it.
As the Supreme Court has said for over a century, the right
to vote is the most fundamental right because it preserves all
of our other rights and freedoms. Our noble experiment in
providing each citizen a voice in the destiny of her country,
constantly evolving and made better through expanding the
voices of those able to participate, is now the template for
freedom around the world. We must honor this spirit by
providing the most responsive, advanced infrastructure
available. We owe our history, our future, and our country no
less.
Thank you.
[The prepared statement of Mr. Goldman appears as a
submission for the record.]
Senator Whitehouse. Thank you very much, Mr. Goldman.
While I appreciate very much the testimony of all the
witnesses, I seem to have you all to myself right now, so I
have plenty of opportunity for questions, and often new
Senators are at the tail end of the questioning and I have 4 or
6 minutes. So this is a luxury for me, and I am very happy to
be with you.
One of the things that strikes me is that there are
different views as to what problems face our voting system.
Some see our voting system as one that simply needs to be
protected from people who are not the real person. Others see
it as the locus where very organized, very strategic efforts to
make comprehensive efforts to deter voters--not necessarily a
particular individual, but a group of individuals--in order to
influence an election outcome in which all that play takes
place. And the evidence that I have seen convinces me that that
is the bigger problem.
We have some examples that we have gathered of efforts to
educate voters in various places. Here is a flyer from
something called the Milwaukee Black Voters League. ``Some
warnings for election time: If you have already voted in any
election this year, you cannot vote in the Presidential
election. If you have ever been found guilty of anything, even
a traffic violation, you cannot vote in the Presidential
election. If anybody in your family has ever been found guilty
of anything, you cannot vote in the Presidential election. The
time to register for voting has expired. If you have not
registered, you cannot anymore. If you violate any of these
laws, you can get 10 years in prison, and your children will
get taken away from you.''
That is helpful.
Then we have from the Franklin County Board of Elections an
election bulletin: ``Because of confusion caused by unexpected
heavy voter registration, voters are asked to apply to the
following schedule: Republican voters are asked to vote at your
assigned location on Tuesday. Democratic voters are asked to
vote at your assigned location on Wednesday.'' Got it? ``Thank
you for your cooperation and, remember, voting is a
privilege.''
Here is another one to the same effect from McCandless
Township, Allegheny County, Pennsylvania: ``Attention, Voters.
Due to the immense voter turnout that is expected on Tuesday,
November 2nd, the State of Pennsylvania has requested an
extended voting period. Voters will be able to vote on both
November 2nd and November 3rd. In an attempt to limit voter
conflict, Allegheny County is requesting that the following
actions be made: Party-Republican, Voting date November 2nd.
Party-Democrat, Voting date November 3rd. Thank you for
cooperating with us in this endeavor to create a peaceful
voting environment.''
And then here is another good one, from the Students for
Magnum: ``Vote Tuesday, November 2nd.'' At least they got the
day right. ``Vote at the polling place of your choice.''
Now, obviously, those are worse than the average effort,
but I do not think that vote caging efforts are very much
different than them in terms of their effects. I would like to
mention to Ms. Mitchell, who was concerned about the vote
caging bill that I have sponsored, it does not prevent proper
Government officials from trying to keep the polling lists
clean. It only deals with private actors and political entities
that come in with vote challenges. So county officials can
continue to go ahead and try to keep their voter lists clean.
The problem with vote caging has been outside groups that send
mail into heavily minority districts and for a variety of
reasons--everything from typographical errors to people in the
military to kids in college--are able to generate mail coming
back that purports to indicate that the person is a regular
voter, then you challenge them, then they are out, and, you
know, the effect that you wish to create has been effected.
I know that Mr. Goldman has reviewed the vote caging
legislation. Do you have further thoughts on that aspect of it?
Mr. Goldman. Well, Senator Whitehouse, I and the Lawyers'
Committee want to thank you for taking this bold step. Voter
caging is something that goes back for over 50 years and had
always been used to target specific populations and to try to
basically make sure that it is more difficult for particular
populations to participate in our democracy.
In 1990, when vote caging sort of got its kind of modern
renaissance, it was through a caging program done by Senator
Jesse Helms' campaign that was either focused on exclusively
minority voters, African-American voters, or on precincts that
I believe were about 92 percent African-American. That was the
low number.
Basically what happens with caging is that you see a system
that is flawed in so many ways because, number 1, the lists,
the original lists, are frequently flawed. Voter registration
lists, as we know, as I testified and as we reported in a
number of different documents that we put out at the Lawyers'
Committee, voter registration lists are often flawed. The mails
do not often get to the place where they are supposed to go.
There are multigenerational households. There are a number of
different reasons why these are poor risks, so we really,
again, thank you for your leadership in introducing this bill.
Senator Whitehouse. That is why some State parties are
actually under court order, consent agreement to cease and
desist from continuing vote caging practices, correct?
Mr. Goldman. That is right, Senator.
Senator Whitehouse. I am interested in the National Voter
Registration Act, and not the motor-voter provision, which is
the famous provision of the law. But in Section 7, that
required that there be voter registration at locations that
provide State public assistance, the information I have is that
voter registration at State public assistance agencies fell
from a high of 2.6 million voters registered in 1995 to 1996 to
just 550,000 in 2005-06, the most recent information we have
available, which is a decrease of 79 percent over that period.
In Missouri alone, Section 7 registration fell from 143,000 in
1995-96 to less than 16,000 in 2005-06, which is nearly 1 in
10.
There does not appear to be any corresponding decline in
public assistance caseloads, and, thus, it appears that non-
compliance with Section 7 is interfering with the opportunity
for many folks who are eligible for public assistance to have
this opportunity.
I note that the Department of Justice, which has
enforcement authority over Section 7, filed suit in 2002
against Tennessee. Before the suit, in 1999 to 2000, Tennessee
had received 49,636 voter registration applications through
public assistance agencies. After settlement of the suit in
2003 to 2004, when they got more seriously about their
business, that number jumped to 173,927. As a result of that,
20 percent of all public assistance registrations in the entire
country took place in Tennessee, which seems like a significant
signal that this is a real opportunity to increase voter
eligibility and voter awareness.
Several of us wrote to the Department a little while ago
urging them to enforce Section 7, and just recently, DOJ
announced an agreement to bring Arizona's Department of
Economic Security into compliance with Section 7.
I am interested in whether the information that you all
have is that you expect this to continue in other States or is
this, do you think, just an isolated incident of enforcement.
Ms. Mitchell?
Ms. Mitchell. Senator, I do not have Dr. Samples's entire
testimony before me, but it is in the record of his appearance
before the Senate Rules Committee in 2001. And, frankly, while
I understand and appreciate the statistical information that
you have presented, I would commend his testimony to you and
the studies that are referenced in there, in his testimony,
because what has been demonstrated--and his testimony was in
2001, so we cannot really blame the Bush administration for
this. But the fact is that, notwithstanding the dramatic
increase in registration, the participation and actual turnout
did not substantially increase. So that the stated goal of the
law to increase voter turnout and participation has not been
achieved. However, the other section that I talked--
Senator Whitehouse. It is hardly logical, however, to
encourage voter participation by not facilitating voter
registration. It is a logical step in the right direction,
isn't it?
Ms. Mitchell. Well, one would think so. I think it is
important to look--
Senator Whitehouse. Don't you think so as a professional
that the more people are registered, the more people are
available to vote?
Ms. Mitchell. All I am saying is that the statistics have
not proven that one begets the other. I think all of us thought
that that would be the case, but that has not necessarily
proven to be the case. What I thought you were going to address
was the other section of the motor-voter law, which has to do
with making it more burdensome and more difficult for
jurisdictions to clean their voter rolls, which I think that
has lent itself to the potential for increased voter fraud
because you have in many jurisdictions more people on the voter
rolls than you have voting age population.
So I think that all of these things matter. I think that
what would be useful for us is to look at the facts and not to
just assume that certain things are going to be true or are
true when the facts do not support that.
Senator Whitehouse. If I may, let me ask Professor Karlan
quickly about this, because she mentioned in her testimony a
sort of astonishing statistic, and that is that there were more
nuns disenfranchised in Indiana during the last election than
all of the proven in-person vote fraud cases in the history of
the State of Indiana. And I am wondering what your reaction is
to the information that there are voter rolls that have names
on them that are no longer effective voters. Does that
correlate with a high incidence of in-person voter fraud?
Ms. Karlan. No, it does not correlate with in-person voter
fraud, and if I can just make an observation about the opinion
in Crawford. The example of in-person voter fraud that Justice
Stevens pointed to is an 1896 municipal election in New York,
and the reason for that is not exactly an accident. If you
wanted to commit voter fraud in 1896, the only way of doing it
was to have individuals go to the polls and vote again and
again and again.
Today, if you were inclined to engage in vote fraud, you
would commit it through absentee voting because it is cheaper,
faster, more reliable, and you are less likely to be caught.
And the fact that States do not seem to be doing much to deal
with either their voting rules themselves or with the
possibility of absentee fraud versus fraud at the polls I think
is no accident. It is like that old joke about the drunk who is
looking for his keys under the lamppost. And they say, ``Well,
did you lose them here?'' ``no, but the light is easier here.''
And Judge Posner was kind of frank about this in the
Seventh Circuit arguments in the Crawford case, where he said,
look, you cannot check the ID of people who are voting
absentee, so you do not have to check their ID, but you can
check the ID of people at the polls. And so I think--
Senator Whitehouse. The light is better.
Ms. Karlan. Yes, the light is better there. So if you were
thinking about how would you have a system that has a great
deal of integrity, well, one thing is you would comply with the
parts of HAVA that deal with computerizing the voter rolls and
making them more updated and more reliable. You would comply
with the parts of the NVRA that require notification when
people notify the DMV. That should notify the Boards of
Elections and the like. And that is how you would clean up the
rolls.
What you do not want to do as a way of cleaning up the
rolls is to put more burdens on people when they show up at
polling places or to do things like draw up kind of
predecessors to vote caging. I worked on a case in Louisiana in
the 1980's, the kind of predecessor to some of the problems
that John was talking about, which was our clients were getting
knocked off the voting rolls in Louisiana because mail was
being returned ``Addressee unknown.'' And we later found out
that a lot of our clients lived in the Desire Housing Project.
You know, the Streetcar Named Desire does not exist anymore,
but it used to go to the Desire Housing Project. And the postal
workers were afraid to go into the project because it was so
dangerous so they just tossed the mail on the floor. They would
kind of run up, toss the mail on the floor, and run out again.
And so our clients were not responding to notices from the
Government because they were never getting the notice. And that
is some of what you actually worry about.
To make a point off of your observation on Section 7,
Senator Whitehouse, when the Government actually wants to find
people, and when the Government actually wants to make people
participate in important parts of our governing process, they
do a much better job of it. So, for example, we want all 18-
year-old men in the United States to register for Selective
Service. Well, we do things like say you are not going to get
student loans. We put the forms in post offices. We put up
signs everywhere. They are told about it in school. And we get
pretty good levels of registration. When it comes to jury
service, we send out summonses to people and we send out a
second summons and occasionally actually even go and try and
figure out why they are not showing up.
And we do not do any of that when it comes to voting
because we really--unlike most other democracies, we do not
treat voting as something that we expect everybody to be doing
and that it is the Government's job to facilitate. And that is
why even if people register, they often do not show up at the
polls because we do not make voting easy and attractive for
them. And if we did, we might see much higher levels of
turnout.
Senator Whitehouse. Mr. Payton, you wanted to say
something.
Mr. Payton. I did. On your point about the requirement that
States create opportunities and take advantage of the
opportunities so that poorer people get registered, I think the
data you cited are not exceptions, and I think they are
appalling. We want more people to be registered to be able to
participate in our democracy. That is actually crucial, I would
say, to the health of our democracy. And so I think we ought to
do more things to make sure people get registered in ways that
Pam just described.
But the reason we are here today is that even if you do
those things and you are marginalized like the people that we
saw in Katrina--and that is largely who you are talking about,
who would be identified in the means you were just describing--
the reason we are here today is that some States have added an
additional burden when those people who actually were
registered that way show up and try to vote. Many of them do
not have the Government-issued photo ID. And so when they show
up, they are told, well, you are registered, that is your
address, your name is here, but you do not have a Government-
issued photo ID. And I hear the response from Mr. King, who
says, you know, there is a complete safety net. Just execute an
affidavit saying that you are indigent, and you get a
provisional ballot.
Here is the really odd and, I would say, perverse reality.
You are given a provisional ballot, and then you are told that
in order to perfect it, you must travel within the next 10 days
to the county seat. If you were in Gary, you would have to go
to Crown Point, about 30 miles round trip. And the only purpose
is the burden--that is, if there was some other purpose, if you
just wanted that affidavit executed, you could have asked for
it to be executed right there on election day at the polling
place. But instead, we simply add a burden for its own sake.
You must travel to the county seat to execute the affidavit
that just says, ``I am indigent.'' And as he said, no one goes
behind the affidavit.
It is really important that people who are marginalized in
our society be brought into the political process and be
registered. But that is not of any value if they do not get to
vote.
Senator Whitehouse. Mr. Payton, what statistics do you have
regarding minority elderly or other voters without Government-
issued photo IDs? Who is likely to be swept up in a system that
requires Government-issued photo IDs? Who is likely to be left
out? And is there any information out there about what the
population is of the Government-issued photo ID-less
individuals? I mean, I can think of people in, you know,
Woonsocket who are 70, 80 years old, who live in a tenement
house, who walk to the pharmacy to pick up their medication,
who walk to the market to pick up their food, who live in their
neighborhoods, who do not have a car, who have no reason
whatsoever to get a driver's license, who do not have a
Government-issued photo ID, and yet are thoroughly legitimate,
welcome, contributing citizens of Rhode Island, people who have
dedicated their lives to the State, who have worked hard and
paid taxes, and why on Earth--you know, so there is one
example. How much more can you fill us in on who--
Mr. Payton. I have two related points. In my prepared
testimony, on page 4, we have some data that shows that 25
percent of African-Americans of voting age do not have the ID
compared to 8 percent of white voting age citizens who do not
have the IDs. But there is a more significant point here, which
is how much of a burden it is for people who are actually in
lower socioeconomic status to get it.
So it is more difficult to get it, and the burdens that I
am discussing, they are not trivial. When you are poor, these
are not trivial burdens. These are real burdens. And no one
would argue that non-trivial burdens do not have an effect.
They have an effect. They do not cause everybody not to go get
their ID, but they cause some people not to go get their ID,
and that is not an effect we want in a healthy democracy.
Senator Whitehouse. I will give Ms. Mitchell a chance to
reply, but I noted in her testimony she said, ``I cannot claim
my luggage from the bellman without producing my photo
identification, and I cannot rent a pull cart from my golf club
at Hains Point public golf course without surrendering my
driver's license until I return the pull cart.'' And I guess my
question is: Isn't it true that the people who are targeted for
exclusion from voting by voter ID laws are not likely to be out
golfing and are not likely to be staying at the kind of hotels
where there is a bellman to keep an eye on your luggage? It
seems like they are two different populations here that we are
talking about. That is sort of the purpose of the exercise. Ms.
Mitchell?
Ms. Mitchell. May I?
Senator Whitehouse. Please.
Ms. Mitchell. Have you been to Hains Point recently? I
mean, this is not exactly a luxury facility. It is a public
golf course in the District of Columbia. But let me just say
this: I do not think it is trivial to--I do not think this is a
trivial issue. And I realize that there are people who live
different lives. I also would note that in my testimony you
cannot get into the United States Capitol to have a meeting
with a Senator or a House Member without producing a photo ID.
Ms. Karlan. I did not produce one today.
Ms. Mitchell. To the United States Capitol, in the Capitol.
You have to produce a photo ID.
I guess my question is--I do not think those things are
trivial. Here is what I also do not think is trivial. I do not
think it is trivial that in Missouri in the general election of
2000 that there were--when they went back and looked at the
general election results and studied what had happened, that
more than 1,200 people had voted illegally, including people
who voted twice, possibly more than twice, deceased persons who
had voted, persons who were registered at vacant lots where
there were multiple names at registered at the same address
that were not multi-family dwellings, nursing homes, hospitals,
or group homes.
I do not think it is trivial that in Washington State in
the gubernatorial election of 2004, where the election was
decided by fewer than 2,000 votes, that there was evidence
introduced in court that showed that more than 1,000 people
voted illegally in that race, including deceased voters, double
voters, and others whose identities could not be established
even after the election.
So what I am saying is all of these things matter, and it
is not trivial that there are people such as in ACORN, who go
into these communities that you are talking about, who have
had--in November of 2007 in Seattle, where ACORN workers
pleaded guilty to the most massive--according to the news
reports, the most massive voter registration fraudulent scheme
that had ever been perpetrated and prosecuted in the State of
Washington; where ACORN volunteers, unpaid representatives,
pleaded guilty in Kansas City to engaging in a fraudulent voter
registration scam.
So I do not think that is trivial either. I realize you
trivialize what I put in my testimony about the requirement for
everyday production of photo ID by the vast majority of the
population. But I also think it is not trivial that there are
people out there who do want to try to use the system, abuse
the system, and organize and cast illegal votes. And I think
that is a threat to the system, to our whole electoral process.
Senator Whitehouse. Well, it strikes me that what is not
trivial is if in addressing the problem of the occasional self-
motivated, fraudulent voter, the person who has not gotten
their identification or does not live where they say they do,
you put into effect a remedy that allows entire populations to
be put at greater risk and to face greater difficulties in
exercising their franchise than otherwise. That to me is what
is unbalanced and unfair.
Mr. Goldman, you had your hand. You wanted to respond?
Mr. Goldman. Thank you, Senator. A few things.
I think it is important, first of all, to note that all of
the examples that Ms. Mitchell said about actual voters who
were impersonating other voters, upon further inspection turned
out to be not the case at all. In fact--and Justin Levitt and a
couple of other folks from the Brennan Center have done some
really good work on what matching protocols actually need to be
in order to be responsible in elections and how frequently it
is when you take a relatively small size of voters to see how
many of them have the exact same name and birth date. It is
actually quite large.
Vacant lots, often homeless voters are actually registered
at vacant lots. Those are very real, eligible voters who are on
the rolls and who are participating, as they should be.
Often people who live in multiple--who have multiple
names--I mean, I live in a household that is not a nursing home
or a multi-family dwelling, and we have multiple people who
have multiple names.
So, really, when you look at this, we are still talking
about a situation where 11 percent of voters, up to 21 million
voters, may be taken out of the electorate if we actually
implement something like this nationwide, versus none. And,
really, we are talking none for over 100 years of credible
evidence of this type of fraud actually happening. It just does
not happen, and it does not happen for a reason.
We have to think about what this means practically. What
this means is somebody who is intending to do this type of
mischief has to, number 1, know that there is another voter on
the voter registration rolls who is not the person, obviously;
number 2, know that that voter has not voted early, has not
voted absentee; number 3, that person has to present him-or
herself to a board of folks, of poll workers, with other voters
around. There are plenty of witnesses in that situation. They
have to know that that person who is administering the polling
place does not, number 1, know the person who you are imitating
and also does not know you, and then also you have to make sure
again that that person has not voted. And then you get one
vote. So that is just one vote. And if any of those things go
wrong, that is 10 years in prison, a $10,000 fine.
These things do not happen. It is just--there are real
problems that disenfranchise real voters, and we are talking
about millions and millions of real voters, and the
responsibility of Congress and the States and the local
jurisdictions is to remedy those problems and not to fixate on
these phantoms of fraud.
Senator Whitehouse. Mr. King, you are an official in the
Indiana Secretary of State's office. You all have just had a
primary. In the past primary held under the Indiana photo ID
law, how many people did you catch impersonating other voters?
Mr. King. Senator Whitehouse, the Secretary of State's
office did not catch any individuals impersonating voters.
Indiana elections are administered by counties and, as we noted
earlier, by precinct election boards. They are the only
entities that can detect impostor voters attempting to vote.
Senator Whitehouse. And to your knowledge, they did not
catch anyone impersonating another voter?
Mr. King. I am not aware of any such instance.
Senator Whitehouse. Do you know how many registered voters
were turned away at the polls for failure to have a photo ID in
the last election?
Mr. King. No. The only information I have had regarding
that is with regard to the testimony of my fellow panelists
today.
Senator Whitehouse. Okay.
Mr. King. So nothing but anecdotal evidence.
Senator Whitehouse. Ms. Karlan, you had your hand up?
Ms. Karlan. Yes, I just wanted to make two observations.
The first is you do not have a constitutional right to play
golf or to store your bags in a hotel, but you do have a
constitutional right to vote. So I think balancing the burdens
is different in those two examples.
The second is suppose that we were even to concede that
there is an occasional in-person vote impostor somewhere in the
United States. Spencer Overton, who has done a pretty detailed
study, has estimated that for every one impostor that you
catch, you might deter 6,700 registered voters from casting a
ballot. Now, suppose he is off by a factor of 10. Suppose he is
off by a factor of 100. Suppose he is off by a factor of 1,000.
You would still have a 6:1 ratio. And we think of that--and I
said this in my prepared testimony. We think about it in the
criminal justice system, there is a burden of proof that is
very high before you can convict somebody. And we often use the
kind of colloquial phrase, ``Better that 100 guilty men go free
than that one innocent person goes to jail.
Suppose that we said we can deter in-person vote fraud, but
for every in-person impersonator that we deter, six American
citizens who are entitled to vote will be prevented from
voting. It seems to me that that is an unacceptable trade-off
on a constitutional right, especially when there are things
that the States could do and things that the Federal Government
could do that would decrease in-person vote fraud by cleaning
up the voting rolls, by making it easier to have the voting
rolls kept up to date, and by vigorously prosecuting if they
find examples of in-person vote fraud.
What is kind of striking is that we do not have even
prosecutions for in-person vote fraud despite the--you know,
and to say we do not have them because it must be so effective
seems one of the oddest things. I mean, we would never say
there must be a lot of crime out there because we have no
reported incidents of a crime. It just seems a very odd way of
thinking about things.
Senator Whitehouse. Good. Well, I appreciate the testimony
of all the witnesses. I think I am going to call the hearing to
its conclusion. Some of you have come a considerable distance.
I appreciate it very much. It has been very instructive and
helpful for us. I suppose we can look forward to perhaps a
revisiting of the Crawford decision when we get an as-applied
set of facts and perhaps a reconsideration at that time. But in
the meantime, I do think that this is an important area for
Congress to look at because, as Chairman Leahy so eloquently
said, the foundation of all of the democratic rights we enjoy
stands on the vote. And if the access to the vote on behalf of
significant portions of America's population is being
manipulated or discouraged, that is something that merits our
attention.
The record of this hearing will stay open for one more
week. If there is anything else that any of the witnesses would
like to submit, you are more than welcome to do that, or anyone
else, for that matter. And other than that, the hearing will
now be adjourned.
[Whereupon, at 3:57 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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