Senate Hearing, 112TH Congress - New State Voting Laws: Barriers To The Ballot?

S. HRG.
112160
NEW STATE VOTING LAWS: BARRIERS TO THE

BALLOT?
HEARING
BEFORE THE
SUBCOMMITTEE ON CONSTITUTION,
CIVIL RIGHTS AND HUMAN RIGHTS
OF THE
COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
SEPTEMBER 8, 2011
Serial No. J11239

Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY

PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin
CHUCK GRASSLEY, Iowa
DIANNE FEINSTEIN, California
ORRIN G. HATCH, Utah
CHUCK SCHUMER, New York
JON KYL, Arizona
RICHARD DURBIN, Illinois
JEFF SESSIONS, Alabama
SHELDON WHITEHOUSE, Rhode Island
LINDSEY O. GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota
JOHN CORNYN, Texas
AL FRANKEN, Minnesota
MICHAEL S. LEE, Utah
CHRISTOPHER A. COONS, Delaware
TOM COBURN, Oklahoma
RICHARD BLUMENTHAL, Connecticut
BRUCE A. COHEN, Chief Counsel and Staff Director
KOLAN DAVIS, Republican Chief Counsel and Staff Director
SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS AND HUMAN

RIGHTS
RICHARD DURBIN, Illinois, Chairman
PATRICK J. LEAHY, Vermont
LINDSEY O. GRAHAM, South Carolina
SHELDON WHITEHOUSE, Rhode Island
JON KYL, Arizona
AL FRANKEN, Minnesota
JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware
MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut
TOM COBURN, Oklahoma
JOSEPH ZOGBY, Democratic Chief Counsel and Staff Director
WALT KUHN, Republican Chief Counsel
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CONTENTS
STATEMENTS OF COMMITTEE MEMBERS
Page
Cornyn, Hon. John, a U.S. Senator from the State of Texas ...............................
prepared statement ..........................................................................................
Durbin, Hon. Richard, a U.S. Senator from the State of Maryland ....................
prepared statement ..........................................................................................
Graham, Hon. Lindsey, a U.S. Senator from the State of South Carolina .........
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared
statement ..............................................................................................................
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1
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204
WITNESSES
Brown, Hon. Sherrod, a U.S. Senator from the State of Ohio .............................
Browne Dianis, Judith A., Co-Director, Advancement Project, Washington,
DC ..........................................................................................................................
Cleaver, Hon. Emanuel, a Representative in Congress from the State of
Missouri, and Chairman Congressional Black Caucus .....................................
Gonzalez, Hon. Charles, a Representative in Congress from the State of
Texas, and Chairman Congressional Hispanic Caucus ....................................
Levitt, Justin, Associate Professor of Law, Loyola Law School, Los Angeles,
California ..............................................................................................................
Nelson, Hon. Bill, a U.S. Senator from the State of Florida ................................
Rokita, Hon. Todd, a Representative in Congress from the State of Indiana ....
von Spakovsky, Hans A., The Heritage Foundation, Washington, DC ...............
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SUBMISSIONS FOR THE RECORD

AARP, Washington, DC, statement .......................................................................
American Civil Liberties Union (ACLU), Laura W. Murphy, Director, and
Deborah J. Bagins, Senior Legislative Counsel, Washington, DC, joint statement ......................................................................................................................
AFLCIO, Washington, DC, statement .................................................................
Angela Peoples and Tobin Van Ostern, Campus Progress, Center for American Progress Action Fund, Washington, DC, statement ..................................
Baker, Rob Biko, Executive Director, League of Young Voters, Brooklyn,
New York, statement ...........................................................................................
Brennan Center for Justice, New York University, School of Law, New York,
New York, statement and attachment ...............................................................
Brown, Hon. Sherrod, a U.S. Senator from the State of Ohio .............................
Browne Dianis, Judith A., Co-Director, Advancement Project, Washington,
DC ..........................................................................................................................
Campbell, Melanie, President & CEO, National Coalition on Black Civic
Participation Convener, Black Womens Roundtable, Washington, DC, statement ......................................................................................................................
Cleaver, Hon. Emanuel, a Representative in Congress from the State of
Missouri, and Chairman Congressional Black Caucus, statement ..................
Coggs, Milele A., 6th District Alderwoman, Milwaukee, Wisconsin, statement
Constitutional Accountability Center, David H. Gans, Director of the Human
Rights, Civil Rights Citizenship Program, Douglas Kendall, Founder and
President, Constitutional Accountability Center, Washington, DC, statement ......................................................................................................................
Demos, New York, New York, statement ..............................................................
Fair Elections Legal Network (FELN), Washington, DC, statement ..................
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Page
Gonzalez, Hon. Charles, a Representative in Congress from the State of

Texas, and Chairman Congressional Hispanic Caucus, statement .................
Harris, Nikiya Q., Milwaukee County, Milwaukee, Wisconsin, statement ........
Haygood, Ryan P., Director, Political Participation Group, NAACP Legal Defense & Educational Fund, Inc., statement .......................................................
Ingram, Janaye, DC Bureau Chief, National Action Network, Washington,
DC, statement ......................................................................................................
Lawyers Committee for Civil Rights Under Law, Washington, DC, statement
Leadership Conference on Civil and Human Rights, Wade Henderson, President & CEO, Washington, DC, statement .........................................................
Levitt, Justin, Associate Professor of Law, Loyola Law School, Los Angeles,
California, statement ...........................................................................................
Lewis, John, a Representative in Congress from the State of Georgia, statement ......................................................................................................................
National Coalition for the Homeless, Neil Donovan, Executive Director, Washington, DC, statement ..........................................................................................
National Law Center on Homelessness & Poverty, Washington, DC, statement ......................................................................................................................
New York Times, August 26, 2011, article ............................................................
Project Vote, Washington, DC, statement .............................................................
Republican National Lawyers Association, Washington, DC, statement ............
Rock the Vote, Heather Smith, President, Washington, DC, statement .............
Rokita, Hon. Todd, a Representative in Congress from the State of Indiana ....
Sanchez, Vctor George Jr., President, United States Student Association,
Washington, DC, statement ................................................................................
Sentencing Project, Research and Advocacy for Reform, Washington, DC,
September 8, 2011, letter ....................................................................................
South Carolina Progressive Network, Brett Bursey, Executive Director, Columbia, South Carolina, statement .....................................................................
von Spakovsky, Hans A., The Heritage Foundation, Washington, DC, statement ......................................................................................................................
Tokaji, Daniel P., Professor of Law, Ohio State Universitys Moritz College
of Law, Columbus, Ohio, statement ...................................................................
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NEW STATE VOTING LAWS: BARRIERS TO THE

BALLOT?
THURSDAY, SEPTEMBER 8, 2011
UNITED STATES SENATE,

SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS, AND HUMAN RIGHTS,
COMMITTEE ON THE JUDICIARY,
Washington, DC.
The Committee met, pursuant to notice, at 2:01 p.m., in room
SD226, Dirksen Senate Office Building, Hon. Richard J. Durbin,
Chairman of the Subcommittee, presiding.
Present: Senators Durbin, Franken, Coons, Graham, and Cornyn.
OPENING STATEMENT OF HON. RICHARD J. DURBIN, A U.S
SENATOR FROM THE STATE OF ILLINOIS
Chairman DURBIN. This hearing of the Subcommittee on the

Constitution, Civil Rights, and Human Rights will come to order.
Todays hearing will examine whether a number of new State voting laws imperil the right to vote.
This year we have watched young people in places like Egypt
and Tunisia take to the streets to fight for what we in America
often take for granted: the right to elect our leaders. In our country, regardless of how big the disagreement, how intense the debate, we settle our political differences at the ballot box. We have
enshrined the right to vote as one of the major rights that every
American citizen has. But over the course of history, we know that
that right has often been honored in the breach.
Only in the last century did Americans win the right to directly
elect their United States Senators. And for more than half of the
life of our Republic, a majority of the adult populationthe women
of Americawere not allowed to vote. Even after the franchise was
legally expanded for close to a century, a well-organized, violent,
often racist campaign successfully prevented many African-Americans from exercising their right to vote. Fortunately, our country
over time corrected and learned from these mistakes.
In fact, our Constitution has been amended more to expand and
protect the right to vote than for any other issue. Six constitutional
amendmentsthe 15th, 17th, 19th, 23rd, 24th, and 26thratified
over the course of 100 years, underscore our Nations commitment
to ensure that all adult citizens enjoy free and full access to the
ballot. Courageous Americans fought for these constitutional
amendments in order to guarantee the right to vote for all citizens,
regardless of their race, sex, class, income, or State of residency.
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We must be constantly vigilant against threats to those hardfought victories.
That is why earlier this year I held a hearing on what I consider
a threat to our democracy posed by the Supreme Courts Citizens
United decision and the flood of special interest cash into elections
and the need to fundamentally reform the way we finance our campaigns.
Today we are going to examine another potential threat to our
democracy: recently passed State voting laws designed to restrict
voting. I am deeply concerned by this coordinated, well-funded effort to pass laws that would have the impact of suppressing votes
in States like Wisconsin, Texas, Florida, Indiana, Georgia, Alabama, Tennessee, and South Carolina.
Regardless of the stated intention or goals, many analysts believe
these laws will cause widespread voter suppression and disenfranchisement by making it more difficult for millions of disabled,
young, minority, rural, elderly, homeless, and low-income Americans to vote. Let us take a moment to consider some of the new
restrictions on voting we will discuss today.
Since the beginning of this year, seven States have passed laws
requiring certain forms of photo identification prior to voting. At
first blush, it might appear that ID requirements are reasonable.
After all, who cannot produce an ID? Well, there is an old saying
that applies here: The devil is in the details.
The way these laws are written, not just any ID will do. According to numerous studies, millions of Americans who are currently
eligible to vote do not have an ID that would satisfy these new restrictive laws, and these individuals are disproportionately young,
low-income, senior citizens, African Americans, and Latinos. It is
unclear what, if any, efforts are being made to make sure that
those who do not have the required IDs will be able to obtain them
before the next election.
Some States have also passed laws drastically reducing the early
voting period. Early voting is primarily used by our fellow citizens
who cannot get to the polls on election day for a variety of reasons.
They may not have reliable transportation. They may work at a job
that does not allow them to take time off. They may have trouble
finding child care. If they are disabled or elderly, they may not be
able to count on receiving the assistance they need to get to the
polls on election day.
For these reasons and many others, the number of people voting
early has increased with each election. In 2008, for example, 30
percent of all votes were cast before election day, which causes one
to ask: Why are some States reducing the early voting period when
the number of early voters is clearly on the rise?
Finally, there are two StatesFlorida, Senator Bill Nelsons
State; and Texasthat have enacted laws that threaten to end
voter registration drives by nonpartisan groups. The Florida law
places onerous administrative burdens on volunteers who sign up
to help their neighbors register to vote. If a volunteer fails to meet
a series of administrative requirements, they could be prosecuted
and fined. This law is so bad that for the first time ever the League
of Women Voters, a highly respected, nonpartisan organization, indefinitely suspended all voter registration drives in Florida.
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These are just three examples of laws that could seriously impede voting rights in America. The proponents of these new restrictive State laws argue that they are all about reducing fraud. Yet,
as Professor Levitt, a witness on our second panel, has demonstrated, the incidence of voter fraud in America is minimal, and
the reported fraud is often anecdotal, unsubstantiated, and contrived.
I am particularly concerned that the States where these laws
were passed have not taken adequate measures to ensure that affected individuals will, in fact, have the ability to vote. That is why
today I am sending a letter to the Governors in three of these
StatesFlorida, Wisconsin, and Tennesseeasking them to inform
the Subcommittee of their plans for ensuring that the laws they
have enacted will not disenfranchise the citizens of their State.
Protecting the right of every citizen to vote and ensuring our
elections are fair and transparent are not Democratic or Republican values. They are American values.
Now I want to recognize the Ranking Member of the Subcommittee, Senator Graham, for his opening statement.
STATEMENT OF HON. LINDSEY GRAHAM, A U.S. SENATOR
FROM THE STATE OF SOUTH CAROLINA
Senator GRAHAM. Thank you, Mr. Chairman. Obviously, I have

a different view on this. My State just passed a voter ID law, and
I want to congratulate the legislature in South Carolina. In the future, if the Justice Department approves this program, you will
have to have a drivers license or a DMV ID card. And what we
have done in South Carolina is if you do not have a drivers license,
you can go to a Department of Transportation facility and get an
ID card that will allow you to vote and do anything else you need
an ID for, and we will give you a ride there. A passport, a military
ID, we are going to come up with a voter registration card, which
I think is a really good idea, that is going to have a photo on it.
You know, illegal immigration is something that bedevils the
country, and the reason most people come here is to find work in
America that they cannot find in their native country because of
corruption and lack of employment. So I understand why people
come. But from an employers point of view, it is hard to verify employment. So I, along with Senator Schumer, have suggested that
we take our Social Security cards and make them biometric, a
photo, something that is tamper-proof so that when you get a job
the employer will know you are who you say you are. When you
get on an airplane, you have to have some form of ID because we
want to make sure that you are who you say you are because of
the threats we face. And when it comes to voting, I do not think
it is too much of a stretch to say you have to prove that you are
who you say you are, and we will find accommodating ways to get
there.
But I just have a different view. I think what South Carolina did
makes eminent sense to me, and the law of the law, as I understand it, is the Indiana system has been upheld, and you will see
more of this, Mr. Chairman, not less. Thirty States have some form
of voter ID requirement. So I think this is the future of the coun-
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try, something we should embrace at the Federal level, because
elections do matter.
Casting a vote should be as easy as possible. It should require
some participation. And I would end with this thought: Democracy
is a fragile thing. We all have to work to make sure it survives.
If you want to control illegal immigration, are you willing to do
your part? Would you be willing to take your Social Security card,
which can be duplicated by midnight as a piece of paper, and turn
it into a bioimetric document to help the country secure employment? Are you willing to show your ID card to get on a plane just
because we are threatened by people in the world and we need to
know who they are? And all the hijackers had five or six fake drivers licenses. So I think sanctifying the voting process in a way that
makes sense to make sure that we are electing people based on
registered voters is a goal that we should all be concerned about
and want to achieve. And from a South Carolina perspective, I
have no desire to suppress people from voting. I want as many people as possible to vote and all of them to vote for me. And I know
that is not realistic. And if you do not vote for me, that is okay.
I want you to be able to vote, but I want to make sure that we do
it in a way that preserves the integrity of elections, not just mine
but everyone elses.
Thank you for the opportunity to speak.
Senator CORNYN. Mr. Chairman, may I be recognized for a brief
unanimous consent request?
Chairman DURBIN. Sure, the Senator from Texas.
Senator CORNYN. And a brief statement.
Chairman DURBIN. Of course.
TATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM
THE STATE OF TEXAS
Senator CORNYN. I appreciate the Chairmans consideration.

Due to a conflict, I am not going to be able to stay for the hearing, but I do have a statement that I would ask unanimous consent
be made part of the record. It speaks really to the voter ID issue
that has already been previously discussed, but also I am glad to
see Mr. von Spakovsky here who I think is going to talk about the
bipartisan legislation that we enacted last year. Senator Schumer
and I were among the principal cosponsors, enhancing the rights
of military voters to vote absentee, which resulted in some significant changes across State laws to facilitate, but which we still have
some challenges to meet.
So with that, Mr. Chairman, thank you for allowing me that
brief statement.
[The prepared statement of Senator Cornyn appears as a submission for the record.]
Chairman DURBIN. Thank you, Senator Cornyn.
Our first panel consists of colleagues from the Senate, and I see
our colleague from the House, Congressman Gonzalez, who is welcome to join us at the table here as well. We will get the proper
nameplate up for you in just a moment.
Our first witness is Senator Bill Nelson of Florida, currently
serving his second term. He served as Floridas State treasurer, in-
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surance commissioner, and fire marshall; six terms in the U.S.
House; three terms in the Florida State Legislature.
Senator Nelson, the floor is yours.
STATEMENT OF HON. BILL NELSON, A UNITED STATES
SENATOR FROM THE STATE OF FLORIDA
Senator NELSON. Thank you, Mr. Chairman and Senator Graham. The ID problem in my State of Florida is not a problem. We
have a different problem, and it is simply not right when the laws
are changed in a State to make it harder to vote. And that is what
has happened in Florida. And of all places, you will recall the experience that we went through in 2000 when there were votes that
were cast in error because of the construction of the ballot, when
there were votes that were lost, when a lot of the military votes
were either counted or not counted that did not comply with the
law, and there had been substantial changes there.
It was a painful experience, and because of that the State legislature set about on a series of reforms. They made it easier to vote,
they made it easier to register to vote, and they made it easier that
someone would have the confidence that their vote was going to be
counted as they intended. That has suddenly been reversed in the
State of Florida by the election law that has been passed and
signed into law by the Governor.
In the first place, Mr. Chairman, what you mentioned, the
League of Women Voters, which has been registering people as a
civic project for decades, under law in Florida that had been on the
books for decades, to register a voter you want to get those names
turned in to the supervisor of elections in that county on a timely
basis. They had 10 days. That has been on the books for years. It
has now been constricted to 48 hours with the person obtaining the
signatures and turning them in subject to a fine of up to $1,000
if it is not turned in within 48 hours.
Now, what is that intended to do? It ends up doing exactly what
the League of Women Voters has done, and they have said they are
not going to take the chance that their members are going to have
those kinds of fines. And, therefore, an organization which was constantly over the years trying to get people to participate in our democracy by registering voters is not going to.
All right. Let me give you another example. Mr. Chairman, you
talked about early voting. On the basis of the experience, the awful
experience that we had in the Presidential election of 2000, it was
in a State particularly that has a lot of senior citizens, want to
make it easier to vote. By the way, early voting, the supervisors of
election love it because everybody does not pile in on 1 day, but
they can spread that out. And we have had early voting for 2
weeks. But what did the legislature do? They constricted that back
to 8 days, and they put the fiction that, oh, the same number of
hours of early voting are going to be as the previous law because
at the option of the supervisor of election that they can extend from
6 hours a day, they can go all the way up to 12 hours a day. But
you know what? If they do, supervisors of election have to pay overtime pay, and what do you think has happened to the budgets of
those statewide institutions, in this case each supervisor in each of
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Floridas 67 counties? They are not going to be able to afford it.
And, therefore, the constriction of early voting has occurred.
And, oh, another interesting thing happened, Mr. Chairman. The
early voting used to go up through the Sunday before the Tuesday
election. That has been changed. It now will only go up through the
Saturday before the Tuesday election. Does it cause anyone to suspicion that there is a certain number of voters on Sunday after
church that go to vote? Again, cutting back on the peoples opportunity to express their will through a free and fair ballot access
process.
Ther is a provision in the new law that says if a voter moves
from outside of the county or from outside of the state and they
have not changed their voter registration address and they go to
their new polloing location to vote, they must vote a provisional
ballot. For 42 years, we allowed them to change their address at
their polling location and then they could vote a regular ballot.
And, oh, by the way, what is the experience of provisional ballots? I would merely take you to the last Presidential election. The
2008 Presidential election in Florida, one-half of the provisional
ballots when attempted to be counted were disqualified.
Mr. Chairman, we ought to be encouraging people to vote and
making it easier for them to register to vote, to have their vote
counted as they are intended and to be able to vote.
This matter is hopefully going to be under judicial review. Organizations such as the League of Women Voters, I am told, intend
to file suit in court. There are also some Federal suits that are already in the courts. It is yet to be determined what the Department of Justice is going to do. Under the Voting Rights Act of 1965,
there are still five counties on the watch list out of Floridas 67
that have to have pre-clearance with regard to the voting rights of
those people being upheld. The Justice Department has already
cleared those five counties with regard to non-controversial items.
The question is: Will they examine it since the State of Florida did
not appeal to the Justice Department on these controversial items
of having your vote counted?
Mr. Chairman, I certainly hope you will pick up this banner.
And, Senator Graham, you and I want the same thing at the end
of the day. We want more people to vote, and we want them to be
able to have that vote counted like they intended.
Thank you, Mr. Chairman.
Chairman DURBIN. Thanks, Senator Nelson. We appreciate your
being here.
Congressman Cleaver, come on up and join us here. We will pull
up a chair to the table. We are honored that you would come across
the Rotunda and join us.
I would like to next introduce Senator Sherrod Brown, who has
been a Member of the Senate since January of 2007, served seven
terms in the House before, also two terms as Ohio Secretary of
State, which is the chief election officer of the State; four terms in
the Ohio General Assembly; and he taught at Ohio public schools
and at The Ohio State University.
Senator BROWN. The Ohio State University.
[Laughter.]
Chairman DURBIN. Senator Brown.
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Senator BROWN. I do not know why they say that, but they do,
Mr. Chairman.
STATEMENT OF HON. SHERROD BROWN, A U.S. SENATOR
FROM THE STATE OF OHIO
Senator BROWN. Thank you very much. It is a pleasure to be

here. Ranking Member Senator Graham, Senator Franken, thank
you also for joining us. I am pleased to sit with two of my former
colleagues in the House, Charlie Gonzalez and Emanuel Cleaver,
both leaders in many ways, and especially on voting issues, and I
appreciate the work that they do.
I testify, as Chairman Durbin said, not only as a Senator of a
State often at the center of our National elections; I testify as an
8-year, 2-term former Secretary of State of Ohio charged with administering those elections from 1983 to 1990.
I can remember in my re-election in 1990, my then-6- year-old
daughter, the election I actually lost running against a fellow by
the name of Bob Taft, and my daughter, who was 6, 1 day we are
getting out of the car, and she said, Dad, let me make sure I understand now. You count the votes in this election. I said, Yeah.
And she said, Well, what is the problem?
[Laughter.]
Senator BROWN. It did not work out quite so well. She has become a bit more cynical since then, Mr. Chairman.
So I understand the burdens of the costs and resources in ensuring the fundamental right to vote is exercised. Inherent in that responsibility is ensuring that voting is accessible and free of intimidation and road blocks.
As a State, over a period of decades Ohios legislators undertook
a bipartisanand I would underline bipartisaneffort to help
Ohioans vote more easily. When I was Secretary of State, we had
major assistance and input from Republicans as we made voting
laws work for huge numbers of people. As Secretary of State, I
asked, and people cooperating, utility companies cooperated by including voter registration forms in utility bills. Drivers license bureaus registered people to vote. Various social service agencies, various local businesses, and one company housed in the Chairmans
State, McDonalds Corporation, at our request printed 1 million
tray liners that were put in McDonalds restaurants all over my
State that people could register to vote on their tray liner so that
occasionally someone turned in registration forms with ketchup
and mustard stains, but accepted byand still I assume some of
them are still in boards of elections around the State.
That was bipartisan in those days, but rather than protecting the
right to vote, we are seeing brazen attempts around the country to
undermine it. Today there is a concentrated campaign sweeping
the Nation in far too many State legislatures across the country
Texas, Florida, and Ohio are three of the most notableundercutting the very protections that I believe are enshrined in our Constitution and the Voting Rights Act of 1965.
These new State voting laws are a result of an organized effort
to limit voting rights. It does so in three primary ways: it implements strict voter ID laws; it requires showing limited forms of
voter ID before voting. The Ohio LegislatureI will get to a spe-
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cific in Ohio in a momenthas decided to sort of bifurcate their efforts. One of their proposals, which has not yet become law but
might this month, does not allow State university IDs to count, for
instance, so it is restrictive in many ways that I think do not make
much sense.
Second, it significantly reduces early voting or the availability of
absentee ballots, as Senator Nelson pointed out in Florida, and it
limits voter registration efforts.
This hearing will examine several of these laws and what I think
is an ideological campaign underpinning them. I will focus on Ohio
for a moment.
During the 2004 Presidential election, Ohio saw in some sense a
bit of a rerun of Florida 2000: a dysfunctional election marred by
electronic voting machines improperly tallying votes and Ohioans
waiting in line for as long as hours. I was at Oberlin College then
in my Congressional district where young voters waited for 6 hours
to vote. Kenyon College, just an hour south nor far from where I
grew up, voters waited 9 hours to vote. This was not a question of
voter fraud, of individuals trying to game the system. This was a
question of an individual voting multiple times. Voters are not
going to try to do that. There is nothing in it for a voter to try to
vote five times and change an election. The problems are elsewhere
but not by the voters. The clouds over the 2004 election in Ohio
were all caused by process, not by individual voters.
Now, 7 years later, after we were a national model, what the Republican and Democratic members of the legislature did and what
I tried to do administratively as Secretary of State, partnering with
all kinds of people and businesses, that national model isOhio is
poised to return to the headlines again for the wrong reasons. The
new election law, which was signed into law by Governor Kasich
it may be subject to a ballot challenge, so it may not take effect
yetdoes little to fix the problems of the process. It only exacerbates it. Among the most pernicious elements, again, this is a repeal of legislation that mostly a Republican legislature and a Republican Governor enacted in the decade before since I was there,
but in the early part of the 21st century. So there was consensus
and that is what is disturbing. There was consensus in America
about voting rights, and there was consensus in Ohio about what
works best, changes at the margin, but now there is a direct attack
undermining so much of what I thought we all believed in in this
country.
This new law in Ohio shortened significantly the early voting
window. It eliminates, as it does in Floridayou can see this patternearly voting on the Saturday, Sunday, and Monday prior to
the election, the three busiest days of early voting. I know that limitingas Senator Nelson said, limiting early voting will only cost
more money. The election system, the administrators in Ohio, very
bipartisan, equal number of Republicans and Democrats, that is
our State law, working in boards of elections, they like it this way
because it spreads out the sort of bursting chaos of an election, and
it saves money ultimately for the election system.
Parents with children in tow, shift workers heading to work,
busy professionals who have troubleyou know, it is not so hard
for us, but, you know, a single parent taking a child, has got a kid
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in tow and has got to get home and fix dinner, they have to stand
in line on election day for 2 or 3 hours. Some of them go home. Of
course they do, because the most important thing in their life is
their kid and feeding their kid and getting ready for school and
doing all the things that people do in their regular lives.
Ohios new law also prevents counties from mailing absentee ballots to eligible voters. There was an agreement, which I am heartened by, between the Democratic county executive in Cuyahoga,
our States largest county, and the Republican Secretary of State,
who has, frankly, been much more reasonable about all these reforms than some of his colleagues, former colleagues when he was
Speaker of the House in the legislature. They have worked out
some arrangements and some agreements there that will make this
a little bit better.
The absurdity of this bill, Mr. Chairman, in part is that it prevents poll workers by law from even assisting some voters when
they are asking questions when they come in. I mean, how absurd
is that? Any fraud is too much, but proposed voter ID solutions are
worse than the cure. In Indiana, more nuns were banned from voting because as elderly residents of their convent they did not have
photo IDs than there are cases of documented voter fraud in the
State. Yet the conservative Roberts Court watered down voting
rights in Crawford v. Marion County Board of Elections even with
the unproven basis of voter fraud.
Though most Americans have Government-issued photo IDs, as
Senator Graham suggested, studies as recently as May of this year
show that as many as 11 percent of eligible voters nationwide do
not. If they cannot find a birth certificate, can they get a Government-issued ID in Ohio? Not clear. Who pays the $10 for the voter
ID? Why do we put this burden on people that have voted religiously and regularly year after year after year? And do many of
them just give up? Perhaps some in the legislature hope they do,
but it is not good for our country.
If this law were to pass in my home State, nearly 890,000 Ohioans over age 18890,000 Ohioans over 18who lack drivers licenses could be disenfranchised. This includes especially the elderly, especially people in rural communities, and a number of Ohioans on college campuses.
Proponents assert that voter fraud is prevalent and needs to be
addressed by sweeping elections reforms. In 2002 and 2004 Ohio
elections, there were only four instances of ineligible individuals
voting or attempting to vote out of 9 million voters in those two
elections. That is 0.00004 percent of voters. The nationally renowned bipartisan Brennan Center said the numbers are so staggeringly small that an individual has a better chance of being
killed by lightning than the chance of an individual impersonating
another at the polls. That sort of says it all.
Mr. Chairman, I will conclude with just saying this was consensus in our country until a group of radical proposals came in my
legislature and other legislatures across the country. In a nutshell,
this is a solution in search of a problem. It is not something we
need to do. The voting system has worked in this country, and it
has gotten increasingly better from the days of the 1957 Civil
Rights Act to the 1964 Civil Rights Act to the 1965 Voting Rights
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Act. We know that we have made progress in this country. Why
should we go back? It really is a solution in search of a problem.
Thank you, Mr. Chairman.
Chairman DURBIN. Thank you very much, Senator Brown.
Congressman Rokita, thank you for joining us, and we are going
to find a seat for you at the table here as quickly as our staff can
slide a chair overin fact, Senator Browns chair, all warmed up.
Next up is Congressman Charles Gonzalez, serving your seventh
term representing the 20th Congressional District of Texas and
Chairman of the Congressional Hispanic Caucus. Prior to service in
Congress, Representative Gonzalez was a Texas State court judge
for more than a decade and a lawyer in private practice for 10
years.
Thanks for coming across the Rotunda joining us today.
Congressman Gonzalez.
STATEMENT OF HON. CHARLES GONZALEZ, A REPSENTATIVE
IN CONGRESS FROM THE STATE OF TEXAS, AND CHAIRMAN,
CONGRESSIONAL HISPANIC CAUCUS
Representative GONZALEZ. Thank you, Chairman Durbin, Ranking Member Graham, and, of course, Senator Franken as a member
of the Subcommittee. Thank you very much for this opportunity to
testify about a very troubling trend that is occurring in many of
our States.
We have seen a consolidated effort by States across the country
to enact laws which will deny thousands if not millions of Americans of the constitutionally protected right to vote. While I will be
speaking chiefly about the impact of Texass new law, the same effects will be seen in many other States since these laws have been
linked to the model bill of a single partisan group seeking political
advantage at any cost.
Texas holds biannual legislative sessions, which means few surprises. Yet Governor Perry declared voter ID a legislative emergency, calling it necessary to combat rampant voter fraud.
Now, that is a common claim, but it is made without a shred of
evidence. We have all heard stories of dead people voting, but when
they are investigated, we find them alive and, well, quite a bit surprised. I would refer you to some cases, but I cannot because even
the Texas Attorney General in 2006 in his press released, which
was entitled Lets stamp out vote fraud in Texas, could not name
a single case of fraud that would have been stopped by voter ID.
The law stops no actual problem. It just creates a burden that
State and local governments will struggle to meet in spite of millions of Federal dollars in EAC grants, the very commission that
is attempting to be eliminated on the House side.
Now, those localities and States are going to need it. The list of
acceptable forms of ID is so short that not even an ID from the Veterans Administration will be accepted in the State of Texas. Your
Senate ID wont count. My House of Representatives voting card
with my identification and my picture will not count. The most
common ID is a drivers license, but 30 to 40 percent of Texas voters do not have one.
So DPS, the Department of Public Safety, will have to handle
hundreds of thousands of applications in just 35 days as this law
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takes effect, and we have a March 6th primary, including weekends
and holidays when the offices will be, presumably, closed.
The State legislature provided zero dollars to handle the influx.
They have no plans for special lines, extra staffing, or extended
hours. Tens of thousands of Texans live more than 100 miles from
the nearest Department of Motor Vehicles, because in Texas 100
miles is not that far. But if you are elderly and have a hard time
getting around, or if you are a minority and cannot take time off
from work, it is a problem. And the wait at one San Antonio Department of Motor Vehicle office was nearly 90 minutes. This will
not be a smooth process.
The Department of Motor Vehicles will mail the applications to
the Department of Public Safety headquarters in Austin, Texas.
The current turnaround time is 2 weeks. But no one knows how
the flood of new applications will slow the process.
Voters who cannot get their ID in time or forget to bring it to
the polls will have to vote provisionally at an average of 22 minutes per vote. I have already met with my election officials. That
is how long it is going to take. So what does that mean? More poll
workers, longer lines, and in neighborhoods like in the west side
of San Antonio where voting can already take hours, this will only
further discourage participation. I do not even want to tell you
about the cure time. Once you vote provisionally, you have got 6
days after the election to go to the main headquarters downtown,
pay $6 to $10 parking if you have a car and you can get there. You
did not have a drivers license, so there is a good chance that you
do not have a car.
[Laughter.]
Representative GONZALEZ. Members of Congress can take work
right? We can take time off from work to get an ID or even go to
vote. But few working people have such flexibility. Once again,
those already bearing the hardest and harshest burdens will be
asked to take on the most.
Of even more concern is the fact that these laws are not always
enforced evenly, and that is an experience not just in Texas. My
written testimony includes a few horror stories about how poor and
minority voters already face more challenges at the polls than
wealthy and White voters. We must each drawn our own conclusions about who benefits when poor and minority voters are
disenfranchised.
Since the founding of our country, constitutional amendments
and laws have opened the voting process to minorities, women, and
young citizens that we send into combat. In recent years, early voting and no-excuse absentee ballots have increased turnout and civic
engagement. Yet Texas and other States are reversing this trend
and curtailing the availability of both, driving hundreds of thousands of voters from the polls and creating a more disengaged citizenry.
You have heard this often from our Republican colleagues:
When we tax something, we get less of it. So it will be no surprise
if these de facto taxes on voters time and money drive down turnout.
Voter ID laws do not stop fraud. They just suppress voting. The
recently enacted Texas photo ID law is a prime example. In the
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more serious examples of electoral fraud, it is not the voter who is
at fault or perpetrating the fraud, but political operatives or corrupt Government officials; and voter ID laws will not stop them.
But voter ID laws do have a disparate impact on the poor, the
young, the elderly, and the disabled, and these groups are disproportionately minorities. And however much progress we have
made, disparate treatment and discrimination against minorities
remains a serious problem.
We have made great progress in the past 235 years tearing down
barriers that disenfranchise millions of Americans. We must not return to those dark days of the past.
Thank you again.
Chairman DURBIN. Thank you very much, Congressman Gonzalez.
Congressman Emanuel Cleaver, from Kansas City, Missouri, is
now serving his fourth term representing Missouris 5th Congressional District. He is Chairman of the Congressional Black Caucus
and previously served as a mayor and member of the City Council
of Kansas City.
Congressman Cleaver, please proceed with your testimony.
STATEMENT OF HON. EMANUEL CLEAVER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MISSOURI, AND
CHAIRMAN, CONGRESSIONAL BLACK CAUCUS
Representative CLEAVER. Thank you, Chairman Durbin and

Ranking Member Graham. I appreciate the opportunity to appear
before you today on one of the most significant civil rights issues
of this moment.
I am pleased to be the Chair of the Congressional Black Caucus
during the 112th Congress and during the 40th anniversary of the
CBC. On behalf of our membership, I can say that the issues surrounding voter suppression are particularly troubling to us. Many
of us come from families who fought diligently to earn the right to
vote, so it is a moral imperative for the members of the CBC to
fight to protect the right to vote for all Americans.
The Congressional Black Caucus was founded by and is often referred to as the conscience of the Congress. Today I am before
you to express my steadfast commitment to protect the gains we
have made throughout history. I am also here to express the deep
and abiding concern the CBC has with this years onslaught of
voter suppression laws, which have not ironically arrived in time
for the 2012 elections.
It is also not ironic that early voting days have been cut short,
stiffer identification requirements have been implemented, and
proof of citizenship requiredall statistically proven to impact people of color disproportionately.
I regret that as the Martin Luther King, Jr., Memorial was recently unveiled in our Nations capital, I am here today to put you
on notice that we are still fighting the battle to protect the right
to voteone of the causes Dr. King died for and reminiscent of the
1960s.
Additionally, we can appreciate the significance every time we
see our colleague John Lewis. As you all know, Congressman Lewis
is not only a proud member of the Congressional Black Caucus, he
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is also a civil rights icon amongst us. My good friend Congressman
Lewis nearly gave his life to protect our rights. He was a leader
with the Southern Christian Leadership Conference President Martin Luther King in a peaceful march across the Edmund Pettus
Bridge in Mississippi so thatin Alabama so that you and I could
cast our votes. In fact, that bloody Sunday helped hasten the passage of the Voting Rights Act of 1965.
Mr. Chairman, John Lewis could not be here. He is in Georgia
on a family emergency, and I would like to introduce Congressman
Lewis op-ed in the New York Times, August 26th, as part of the
record, as well as a brief by the National Association for the Advancement of Colored People.
Chairman DURBIN. Without objection, they will both be made
part of the permanent record.
[The information appears as a submission for the record.]
Representative CLEAVER. Given the disproportionate impact the
voter suppression laws will have on African-American voters, these
laws are reminiscent of the poll taxes used in the Jim Crow South.
The laws are solutions in search of problems, especially when it
comes to voter ID, because there is basically no evidence of voter
fraud. Requiring voters to provide a specifically narrowly defined
piece of photo identification is unnecessary. The safeguards currently in place to verify voters identity actually work. That much
is clear because there has been no evidence of substantial voter impersonation fraud. The only type of fraud requiring voters to provide a specific type of Government-issued ID guards against it.
Now, Mr. Chairman, the fraud often used by proponents turns
out not to be fraud at all. Absentee ballot fraud, felons voting, and
other issues are not solved, as my colleague said, by requiring voter
ID, and 23 States and the District of Columbia now allow voters
to show both photo and non-photo IDs, such as a utility bill or a
bank statement.
After the Reconstruction Era ended in 1877, African-Americans
ceased to hold significant political power in the South. In the
1890s, the Populist Party attempted to merge the common economic interests of poor African-American and white farmers. The
elite party in the South at the time, the Democratic Party, wanted
to retain their power, so they worked diligently to disenfranchise
African-Americans to ensure their continuity of power.
I am doing some family research. I was born and raised in Texas
and had the great pleasure of growing up with two great-grandfathers. One of them, Noel Albert Cleaver, who died at the age of
103I was married with childrenwe have not been able to find
any proof that Grandpa ever voted. In the State of Texas, during
most of his life, Grandpa had to pass a literacy test in Texas. An
example of the questions: How many seeds are in a watermelon?
How many bubbles are in a bar of soap? That is what Grandpa
faced. To vote, African-Americans had to pay $3.50 in the State of
TexasEllis County, Waxahachie, Texas. Grandpa in all likelihood
lived in this country 103 years and never voted.
He is not alone. There are many others who are in the same situation. I believe we have a modern-day poll tax. There is a cost for
a State ID in every single State in the United States.
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My father, now 89 years old, has no idea of his birthday. My
grandma, Grandma Annie Mae, his mother, had two sons born in
the month of Julyone on the 15th, one on the 27th. She could not
remember which one. African-Americans were not allowed to go to
hospitals at that time, so when my father and his older brother became teenagers they just decided to choose a day: You celebrate
this day, I will celebrate this day. And they have done it all of
their lives.
My father is 89 years old, in perfect health, still drives. But what
happens if my father did not have a drivers license? He has no
birth certificate. He was born in Grandpas house in the kitchen.
Why in the world are we doing things to make voting more difficult? It would seem to me in the United States of America in the
21st century we would do everything conceivably possible to give
everybody encouragement to vote. We are encouraging democracy
in Iraq. Let us demand it at home and do away with anything that
prevents any American from voting.
Thank you, Mr. Chairman. I appreciate the opportunity to be
here before you.
Chairman DURBIN. Congressman Cleaver, thank you very much.
We are honored to have Representative Todd Rokita here. He is
serving his first term representing Indianas 4th Congressional District. Like Senator Brown before him, prior to his service in Congress, Congressman Rokita served two terms as the Indiana Secretary of State. During his tenure he was president of the National
Association of Secretaries of State.
Congressman Rokita, the floor is yours.
STATEMENT OF HON. TODD ROKITA, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF INDIANA
Representative ROKITA. Thank you, Mr. Chairman. I am pleased

to know that as I visit here from the other side of the Rotunda, you
all do not take as much adherence to the time clock as we do on
our side. In light of that, I will not be more than 40 minutes or
so.
[Laughter.]
Senator GRAHAM. Do not push your luck.
Representative ROKITA. Chairman Durbin, Ranking Member
Graham, and members of the Committee, thank you for the opportunity to share my experience with Indianas photo ID law. In light
of the last bit of testimony, I would like to indeed bring us back
to the 21st century.
As you may know, I was the Secretary of State of Indiana for 8
years, from 2003 to 2010, prior to coming here, and as Secretary
of State I was also the chief election officer. When Indianas photo
ID law was createdand I helped draft that specific bill with my
State legislatorsit became law, and then I had to oversee the
legal challenges that followed as well as implementing the law.
Governor Daniels signed Indianas voter ID law in the spring of
2005. Indianas law requires that to vote in person a voter must
present a valid photo ID issued by Indiana or the United States.
That ID must have a photo of the voter and the expiration date.
I imagine, as I listened to Representative Gonzalezs testimony,
that to the extent one of those photo ID examples that he men-
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tioned did not comply with the Texas law, it was because it did not
have an expiration date. And there is a very logical reason why we
have an expiration date in our law, and that was because peoples
facial images change. They get older, for example.
Now, it was not that our law was so strict
Chairman DURBIN. Unless you are a Senator or a Congressman,
the same photo will last for decades.
[Laughter.]
Representative ROKITA. I have forgotten where I am. Thank you,
sir.
It is not that we were so strict in Indiana as to say, well, the
photo IDs had an expiration date of yesterday and today is election
day, therefore you cannot vote. I mean, that is an example that I
would agree with these gentlemen on. That would be unreasonable.
Our face does not change that much in a day. So as an example
of the reasonableness in Indianas law, we simply said, all right,
you can vote on an expired ID up to 2 years. We did things like
that all along the way to accommodate the arguments that I am
again hearing today, but certainly we have not heard for the first
time. And the bottom line is that, after 6 years worth of elections,
Indianas photo ID law works. In fact, people that agree with the
comments that I have heard already have been looking. They have
lookedI think they have given up looking finally for problems
with Indianas photo ID law.
We have not been sued once. We have not even had allegations,
legitimate allegations that anyoneHispanic, black, woman, man,
young, old, whoeverhas been legitimatelyor illegitimately
disenfranchised by Indianas law, because it is reasonable.
It is reasonable also because whether or not you agree that inperson voter fraud existsand I will say that as 8 years being Indianas Secretary of State, it does exist. We have allegations made
every election. That does not mean I am trying to denigrate Hoosiers. We are, I think, some of the most reasonable, common-sense,
God-loving, patriotic people that this Nation knows. But if it is
happening in Indiana, it is happening everywhere, from New York
to California.
Now, these gentlemen and others say, Well, you cannot produce
one case, you cannot produce one conviction; therefore, it does not
exist. The word evidence was used. Well, that is not true. There
is a lot of evidence. There are several cases that I have presented
to prosecutors who have not taken up the casenot because of a
lack of evidence, but because think about the kind of fraud it is.
Think about the kind of crime it is. It is something that happens
in an instant and then it is gone. The witnesses dissipate. These
are volunteer poll workers. It is not a domestic violence case. It is
not something that leaves visible scars or blemishes or bruises.
And so it is the kind of case, it is the kind of fraud that is very
hard to prosecute. But that does not mean it does not exist. And
the bottom line, it is not a matter of how many cases or convictions
there are, gentlemen. It is a matter of confidence.
In a free republic, you have got to have the personal responsibility to participate. Voting is one of the highest and best civic
transactions we can undertake.
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I have heard today that people have to leave their jobs to come
and vote. Why make it harder? Well, I would take the opposite end
of that. People leave their jobs, they leave their work, sometimes
they leave their kids to go vote. Hopefully they take their kids with
them. Hopefully they wait in a short line, as they do in Indiana.
We have not seen extended long lines in Indiana after 6 years at
all. It has not elongated the voting process. But you leave your dayto-day life to come vote. And then you get to the poll, you get to
the poll clerk, you sign in, maybe, and you realize that the perception is that the people that are doing this process do not take it
nearly as seriously as some of the other transactions that they partake in in day-to-day life.
So I would argue it leaves the perception of a lack of confidence.
These people did not even care enough to find out who I was, yet
they ask me to leave my life and go vote. We want to instill confidence in the process to drive up turnout. And, in fact, in Indiana,
since we have had the photo ID law, voter turnout has gone up 2
percent. It was not enacted to increase voter turnout. It was not
enacted to decrease voter turnout. But the effect was it has increased voter turnout. If you do it the right way, if you do it reasonably, you will instill confidence in our process, which is definitely needed, definitely a prerequisite to having a successful free
republic and to allow this citizenry to participate and to grow the
personal responsibility that is needed if we are going to maintain
a free republic.
So, with that, thank you for letting me come this afternoon, and
I would like to enter my remarks for the record.
Chairman DURBIN. Thank you, Congressman Rokita, and, of
course, your remarks in their entirety will be part of the record,
and the remaining 35 minutes that you were going to take will be
published instead of transcribed.
[Laughter.]
[The prepared statement of Mr. Rokita appears as a submission
for the record.]
Chairman DURBIN. I do not know if there are any questions of
our guests from the House. If not, we are going to go to the second
panel. We thank you very much for coming.
I know Senator Graham has to go to another meeting, but thank
you for joining us this afternoon.
We are going to turn to our second panel of witnesses, and I will
ask the witnesses to take their places at the table. Each witness
is going to have 5 minutes for an opening statement, and their
written statements will be included in the record. They include:
Judith Browne Dianis, Hans von Spakovsky, and Justin Levitt.
If they would please stand for just a moment, please, we have a
tradition of administering an oath to our lay witnesses.
If you would please raise your right hand, do you affirm the testimony you are about to give before the Committee will be the
truth, the whole truth, and nothing but the truth, so help you God?
Ms. BROWNE DIANIS. I do.
Mr. VON SPAKOVSKY. I do.
Mr. LEVITT. I do.
Chairman DURBIN. Let the record reflect that all three witnesses
have answered in the affirmative.
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Our first witness is Judith Browne Dianis, co-director of Advancement Project, previously was an attorney with the NAACP
Legal Defense and Educational Fund. Ms. Browne Dianis graduated from Columbia University School of Law, and was a recipient
of the Skadden Fellowship.
Ms. Browne Dianis, the floor is yours.
STATEMENT OF JUDITH A. BROWNE DIANIS, CODIRECTOR,
ADVANCEMENT PROJECT, WASHINGTON, D.C.
Ms. BROWNE DIANIS. Thank you, Chairman Durbin, for inviting

me to testify about new voting barriers. I respectfully request permission to enter my entire written testimony into the record.
Chairman DURBIN. Without objection.
Ms. BROWNE DIANIS. I am a civil rights litigator and co-director
of Advancement Project, a national civil rights organization. Since
2000 we have worked with local civic engagement groups and election officials to eliminate barriers to voting.
Our country has not seen such widespread attempts to disenfranchise voters as we have seen this year in more than a century. Inclusive democracy is under attack. New barriers to voting may neutralize recent surges in black, Latino, and youth voter registration
rates and record voter turnout. These laws may systemically disenfranchise already registered voters in these groups as well as
limit voting of people who are poor, people who are elderly, and
people with disabilities.
The new barriers to voting include laws that place restrictions on
the number and type of acceptable voter identification introduced
in 24 States this year; laws to limit early voting, such as bills
passed in Ohio, Tennessee, Georgia, West Virginia, and in Florida,
where 30 percent of voters cast early ballots in 2008 with twice as
many African-Americans doing so than whites; laws that place restrictions on nonpartisan voter registration efforts, such as that in
Florida; African-Americans and Latinos are more than twice as
likely as white voters to register through voter registration drives;
laws such as that passed in Kansas and Alabama requiring documentary proof of citizenship to register; policies such as those in
Florida, Iowa, and Virginia making it harder for people with criminal records to regain their voting rights, even after they have paid
their debt to society; and, lastly, reactionaries have announced
plans to place millions of challengers at the polls in 2012 to challenge voter eligibility in ways that may intimidate voters and disrupt polling place operations.
Of all the barriers, the most pervasive new threat to voting
rights has been voter identification restrictions. The issue is less
about whether voters should be made to demonstrate their identity
at the polls but, rather, how restrictive the forms of identification
should be.
Election officials realize these laws are budget busters, have gone
too far, and will create election administration nightmares. As Ohio
Republican Secretary of State Jon Husted, splitting from party
ranks, explained, I believe that if you have a Government-issued
check, a utility bill in your name with your address on it, that no
one made that up. They didnt...establish utilities in their name to
commit voter fraud. Lets be clear about this. There are some other
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forms that are legitimate.... What if I lose my ID on election day?
Should there be no other alternative I can use to cast my ballot?
I think that there should be.
In a trial run in Wisconsin on voter ID, the Madison County
clerk explains, Between showing ID and signing the poll book, the
amount of time each voter needs to spend at the poll book has at
least doubled. The minimum number of election officials needed at
each polling place willincrease from five to nine. Election officials
are very concerned about dealing with voter lines that could easily
become 2 or 3 hours long.
Further implementing photo ID laws could cost cash-strapped
States $20 million or more. Despite the myth that everyone has ID,
many voters do not. In South Carolina, 178,000 registered voters
lack a drivers license or State identification. In Wisconsin, 23 percent of voters aged 65 and older lack State ID. Among young voters
18 to 24, 78 percent of African-American men, 66 percent of African-American women, 59 percent of Latino men, and 46 percent of
Latino women in Wisconsin lack the ID.
The IDs are also hard to get. Nora Elze, 88, in Georgia, was told
she needed to produce her 1946 marriage license to show her name
changed to get an ID. She fears she will not be able to vote because
of the difficulty of getting her marriage license.
In Missouri, we represent Emmanuell Aziz in a lawsuit challenging the ballot initiative that, if passed, would require Stateissued photo ID. Mr. Aziz is a registered voter with an expired
drivers license and passport, which lapsed during his illness with
multiple sclerosis. He is confined to a wheelchair. It will be nearly
insurmountable for him to get his license renewed due to a lack of
transportation and inability to pay for the supporting documents.
The difficulty of obtaining ID is exacerbated further by budget
cuts that have led to the closure and reduced hours of offices where
IDs and underlying documents may be obtained. In Wisconsin,
DMV offices are closed on weekends, and 25 percent of offices open
less than 1 day a month. Similarly, in Texas, approximately
500,000 Latinos and blacks live in counties without ready access to
Department of Public Safety offices in their counties. Eighty counties have no office or closed it altogether. In Tennessee, only a third
of the counties have DMV offices, and those in urban areas serving
predominantly people of color have wait times up to 4 hours.
Furthermore, the cost would-be voters must pay first for obtaining the underlying documents for ID, which is a certified birth certificate, et cetera, make these laws effectively poll taxes. In Texas,
it would cost you $22 for a birth certificate, and a passport can cost
up to $145. Thus, one must pay to vote.
These new laws represent the largest legislative effort to roll
back voting rights since post-Reconstruction Era. Collectively, they
effectuate a trifecta of voter suppression, making it harder to register to vote, harder to cast a ballot, and harder to have a vote
counting. And the impact is not evenly distributed and, indeed, is
designed to effectuate political results.
Americans should be outraged that across the country efforts are
being undertaken to make voting harder and to silence some. After
all, Election Day is the one great equalizer. Regardless of race, gender, religion, disability, or income, we all have the same amount of
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power when we go into the voting booth. That is what makes this
Nation great. We cannot go backwards.
Thank you.
[The prepared statement of Ms. Browne Dianis appears as a submission for the record.]
Chairman DURBIN. Thank you very much.
Our next witness is Hans von Spakovsky, senior legal fellow at
the Heritage Foundation Center for Legal and Judicial Studies. He
is also the manager of the Heritage Foundations Civil Justice Reform Initiative. Before this, Mr. von Spakovsky served 2 years as
a member of the Federal Election Commission. Prior to that, he
worked at the Justice Department as counsel to the Assistant Attorney General for Civil Rights. He has also served on the Board
of Advisers of the U.S. Election Assistance Commission and on the
Fulton County Board of Registrations and Elections. He is a member of the Fairfax County, Virginia, Electoral Board and the Virginia Advisory Board to the U.S. Commission on Civil Rights. He
obtained his law degree from Vanderbilt University School of Law
and his bachelors degree from Massachusetts Institute of Technology.
Mr. von Spakovsky, thank you for joining us and please proceed.
If you would like to repeat the compliment, go ahead.
Mr. VON SPAKOVSKY. Is it on now? Okay.
[Laughter.]
STATEMENT OF HANS A. VON SPAKOVSKY, THE HERITAGE
FOUNDATION, WASHINGTON, D.C.
Mr. VON SPAKOVSKY. Thank you, Senator Durbin. As we prepare

for the 2012 election, it is critically important that States improve
the security and integrity of our elections. One of the key principles
in any fair election is ensuring that the person who casts a ballot
is legally eligible to vote. The fairest way to do that is by requiring
individuals to authenticate their citizenship when they register and
their identity when they vote. Such measures also increase public
confidence.
As Governor Lincoln Chafee, an independent, said when he
signed Rhode Islands new voter ID law, sponsored by Democratic
State legislators, Requiring ID at the polling place is a reasonable
request to ensure the accuracy and integrity of our elections.
The evidence from numerous academic studies and actual turnout in elections is overwhelming that, contrary to the claims of opponents, voter ID does not depress the turnout of voters. In fact,
a study by the University of Delaware and the University of Nebraska that looked at turnout across the country said the concerns
about voter ID laws affecting turnout are much ado about nothing.
Voter fraud exists, and criminal penalties imposed after the fact
are an insufficient deterrent. When Justice John Paul Stevens
wrote the majority opinion of the U.S. Supreme Court upholding
Indianas voter ID law, he noted that examples of such fraud have
been documented throughout this Nations history by respected historians and journalists, and not only is the risk of voter fraud real,
but it could affect the outcome of a close election.
African American Senator Harold Metz, who cosponsored Rhode
Islands law, noted that very few adults lack one of the forms of
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ID that will be accepted, and the rare person who does can get a
free voter ID card, and that he would not have supported any obstacle to voting.
Polls show overwhelming support for voter ID across all ethnic,
racial, and party lines. That is no doubt because Americans have
to use a photo ID to obtain a library card, drink a beer, cash a
check, board an airplane, or check into a hotel. Those in the leadership of organizations opposed to such common-sense reforms are
clearly not in touch with their constituents.
Actual election results confirm voter ID does not hurt minority
turnout. Voting in both Georgia and Indiana increased more dramatically in 2008 in the first Presidential elections held after their
photo ID laws went into effect than in some States without photo
ID. There was also an increase of over 7 percentage points in the
turnout of registered black Georgians from the 2006 to the 2010
midterm Congressional elections. The Georgia voter ID requirement was upheld in State and Federal court, including the Eleventh Circuit Court of Appeals and the Georgia Supreme Court.
They held that such ID requirements are not discriminatory, do not
violate the Constitution, or any Federal voting rights laws. After
years of litigation, none of the plaintiffs, including the NAACP,
could produce a single individual who did not have a photo ID or
could not easily obtain one.
In Indiana, the turnout of Democratic voters in 2008 increased
by over 8 percentage points from 2004, the largest increase in
Democratic turnout of any State in the Nation. According to the
census, there was a 5-percent increase in the turnout of the black
voting-age population in the 2008 election compared to 2004. Black
turnout in Indiana in 2010 was even higher than black turnout in
the 2008 election, which was a banner year for black turnout.
The evidence is indisputable also that aliens are registering and
voting. In 2005, the GAO issued a report finding that up to 3 percent of the 30,000 individuals called for jury duty from voter registration rolls in just one U.S. district court were not U.S. citizens.
I recently received an order from a 2010 immigration case in Orlando, Florida, the Cuban immigrant who arrived in Florida in
April of 2004, and then promptly registered and voted illegally in
the November election.
The only Americans really being disenfranchised as a large group
today are overseas military voters. Only an anemic 4.6 percent of
them cast an absentee ballot that was counted in the 2010 election,
and that is something that does need to be taken care of.
Three more quick points.
The ability to travel freely within the U.S. is a basic right, yet
there have been no claims that the Federal requirement to show
a photo ID before boarding a plane is somehow discriminatory. No
one can enter most Federal buildings to exercise the First Amendment right to petition the Government without a photo ID, and
there have been no cries that this is Jim Crow.
The right to work is just as important as the right to vote. Yet
Federal law, passed by this Congress, mandates that no one can be
employed without producing documentation authenticating their
identity and U.S. citizenship or legal authorization to work. There
are no claims that this Federal requirement is Jim Crow. States
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are simply implementing a similar requirement to authenticate
identity and citizenship for voting.
As Rhode Island Democratic State Representative John Ryan
said, Voting is one of the most important rights and duties we
have as Americans, and it should be treated accordingly.
Thank you.
[The prepared statement of Mr. von Spakovsky appears as a submission for the record.]
Chairman DURBIN. Thank you very much.
Justin Levitt is our next and final witness on this panel, associate professor of law at Loyola Law School in Los Angeles, previously counsel at the Brennan Center for Justice at NYU Law
School, served in various capacities for several Presidential campaigns, including the National Voter Protection Counsel in 2008;
graduated magna cum laude with a law degree and masters degree
in public administration from Harvard, where he was an articles
editor for the Harvard Law Review; also earned a bachelors degree
magna cum laude from Harvard College.
Professor Levitt, thank you for coming all the way from Los Angeles.
STATEMENT OF JUSTIN LEVITT, ASSOCIATE PROFESSOR OF
LAW, LOYOLA LAW SCHOOL, LOS ANGELES, CALIFORNIA
Mr. LEVITT. Thank you very much, Mr. Chairman. Thank you for
having me here, Mr. Chairman, Senator Franken, and thank you
as well for entering the full written testimony that I have submitted to you into the record. I very much appreciate that.
I am a constitutional law and election law scholar at Loyola Law
School in Los Angeles. My scholarship is based on careful research
into the very real-world costs and benefits of election policies. I
think it is very important to have a grounding in real facts, and
so I appreciate this opportunity to share some of them with you
here today.
Unfortunately, 2011 has seen several States ignoring this balance, careful balance of costs and benefits, imposing real burdens
on real Americans without real reasons.
There are several categories of these new laws. I would like to
take just a few moments of my opening statement to address three:
First, voter registration. We have heard a lot about this today.
The biggest cutback is in Florida, again. In 2005, Florida law shut
down registration drives for the League of Women Voters for the
first time in its 67-year Florida history. That law was struck down
in court. Now the restrictions are back. The new law requires citizens to get Government permission before they touch a voter registration form from anyone other than their immediate family. This
stops impromptu drives at bake sales, churches, and at actual tea
parties.
[Laughter.]
Mr. LEVITT. In the campaign finance arena, conservative groups
have vigorously challenged far less burdensome restrictions. These
new restrictions limit participation far more than necessary to ensure that the voter registration process is both clean and smooth.
Second, early voting. We have also heard about this today. Florida has also cut back here. The most significant cut, the Sunday
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before election day. On this Sunday, particularly in minority communities and vastly disproportionately in minority communities,
citizens who work long hours during the week go to the polls after
church, fulfilling their civic obligations after their spiritual ones.
Cutting this Sunday in particular makes no sense. That is, there
is no justification for it at all. In Florida, each county could choose
to offer voting on the final Sunday or not. Where it cost too much,
counties declined. But ten counties opened the polls on that final
Sunday because they thought they could better and more efficiently
serve their constituents. As Senator Nelson said and as Senator
Brown said, for no good reason the State now limits their options
and increases their costs by mandating that they close shop on that
final Sunday when people are coming from church.
Finally, I would like to mention new restrictive ID laws. I have
devoted extensive space to this in my written remarks in part because there is so much myth and misinformation out there, and I
hope there is time to clarify in further questions if you have any.
At the moment, six States stop citizens from casting a valid ballot at the polls if they do not have particular types of Governmentissued photo ID. They are the minority. All States have some process to make sure that people are who they say they are before they
vote. The other 44 States offer options because they know there are
real live eligible American citizens out there who simply do not
have the ID required in the most restrictive States. I give specific
examples of specific names of these real live eligible people in my
written testimony. There are many more. Voting is a right for
them, too.
Now, everyone agrees that most citizens have photo ID. There is
no dispute there. But a substantial number do not, and they have
constitutional rights as well. It is tough to know exactly how many
do not. There are good scientific studies and bad scientific studies.
Unfortunately, I think Mr. von Spakovskys numbers would fail
Statistics 101 at just about any college in the country. The best
way to know who does not have the right ID is to ask them. And
when you ask them, between 2, from the most conservative estimates, and 20 millionbetween 2 million and 20 millionAmerican voting-age citizens raise their hands. They are disproportionately minorities, disproportionately poor, disproportionately young,
disproportionately seniors. And if you do not have ID, it turns out
that it is awfully tough to get ID.
There is no good reason to close out these millions of people. As
Senator Brown mentioned, Americans are killed by lightning more
often than they are victimized by any sort of fraud that ID stops.
Representative Rokita mentioned allegations of in-person impersonation fraud in Indiana. I would love to hear them. I have not
yet seen any reports of any in-person impersonation fraud in Indiana, and I am not talking about prosecutions. AllegationsWe
think there has been a problem. In fact, at the largest stage in the
country, at the Supreme Court, there were a total of nine alleged
votes nationwide since 2000 that might, if they were fraudulent at
all, have been stopped by ID. Nine. There have already been many
more than nine real Americans blocked by the new ID restrictions.
Indianas law does work, but it works to keep people from voting
a valid ballot. And there have already been elections, including a
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school board election in 2010, decided by provisional ballots cast by
individuals who did not have ID and could not prove, using Indianas new restrictive law, that they were who they said they were.
We have amputated a foot to cure a potential hangnail.
One word on airplanes. Mr. von Spakovsky is fond of saying that
you need photo ID to board a plane. I wish he would add, And I
am George Clooney, because neither one is true. To get to you
today, I had to board a plane from Los Angeles. I never showed
photo ID. While waiting in the terminal, I drank a beer while waiting for the flight, and quite enjoyed it. I never showed ID. To come
testify before you today, I had to walk right in through this Federal
building and never showed ID. In fact, I have not had photo ID in
my wallet the entire week.
Airlines, restaurants, and Federal buildings have figured out
ways of accommodating real American citizens without restricting
them to single ID cards. And as a fundamental constitutional right,
so should all elections in the country.
The airplane analogy is also beside the point. This is the last
thing I will mention. Voting is in two articles of the Constitution
and ten amendments of the Constitution, featured at the very
heart of our constitutional order. Boarding a plane is nice. Drinking a beer is very nice. But outside of Prohibition, I do not see that
in the Constitution.
None of the laws that I have mentioned today, none of the laws
here make it 100 percent impossible to vote. But for many, as a
practical matter, they do make it very, very difficult for no good
reason. We all deserve better when it comes to our most fundamental constitutional guarantees, and I thank you very much for
investigating this issue.
[The prepared statement of Mr. Levitt appears as a submission
for the record.]
Chairman DURBIN. Thank you very much, Professor Levitt. I
read your testimony in its entirety, and I know it is exhaustive in
terms of the research you have done. I thank you for that very
much.
I found Congressman Rokitas statement hard to rationalize
when he said something along the lines of we should not really
count the fact that people are not prosecuting voter fraud because,
you know, it is not worth prosecuting. He talked about, you know,
witnesses are hard to come by; and we should not be concerned
that there is no evidence of prosecution of fraud. And yet State
after State is being urged to change the laws and impose new burdens on innocent people all across the State because of allegations
of fraud, which is not worth prosecuting. I do not think you can
have it both ways. If this is clearly designed to stop some terrible
miscarriage of justice at the polling place, then it ought to be prosecuted, and there ought to be a clear example to the people of this
country that we just will not stand for this, wherever it might
occur.
Mr. von Spakovsky, let me go back to a movie whose name I cannot recall where the seminal phrase was Show me the money. Remember that one, Al?
Senator FRANKEN. Jerry Maguire.
Chairman DURBIN. Oh, I knew he would know that.
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[Laughter.]
Senator FRANKEN. I will take Movies for $200.
I am sorry. What was Jerry Maguire?
[Laughter.]
Chairman DURBIN. So let us follow the money in this debate for
a moment. Let us see who is pushing for these changes in the law
and where the money is coming from and see if it gives us any kind
of an indication of a political motive behind this.
Are you familiar with a group known as the American Legislative Exchange Council?
Mr. VON SPAKOVSKY. Certainly, Senator. It is the equivalent of
the National Conference of State Legislators. It is a similar trade
organization for State legislators.
Chairman DURBIN. And one of the founders, Paul Weyrich, are
you familiar with this man?
Mr. VON SPAKOVSKY. Certainly. He helped start the Heritage
Foundation, too.
Chairman DURBIN. And one of the preeminent conservative political spokesmen in America who said in a moment of candor, I do
not want everybody to vote. As a matter of fact, our leverage in the
elections quite candidly goes up as the voting populace goes down.
This quote comes from Paul Weyrich, one of the founders of the
American Legislative Exchange Council.
Then you take a look at where the money is coming from for this
council to undertake these legislative efforts all across the United
States, and you find a couple of brothers: David and Charles Koch,
billionaire conservative financiers who have spent substantial sums
of money, even before Citizens United, to promote a pretty conservative political agenda.
Now take a look at the people most affected by these new laws.
You have heard it said over and over again. I think you have said
it in your testimony. I will just tell you as a sophomore student of
political science, I would bet the people we are talking about are
more likely than not to vote on the Democratic side. Not all of them
by any means, but more likely than not. So is this a great leap to
put these two things together, that these two financiers through
this council spending millions of dollars promoting changes in State
law that will restrict the outcome of elections when it comes to
Democratic voters?
Mr. VON SPAKOVSKY. Senator, you can do that with any subject
in America. In fact, there is a famous Hollywood thing. I am seven
stages removed fromwhich actor is it?
Senator FRANKEN. It is
[Laughter.]
Senator FRANKEN.Kevin Bacon. It is not seven. It is six.
[Laughter.]
Mr. VON SPAKOVSKY. Six. Very good.
I do not believe that the Democrats in Rhode Island who control
the State I think four to one in the State legislature would agree
with that. They are the ones who thought this bill was necessary.
I read you some of the quotes from the legislators who were in
favor of this. And the same thing
Chairman DURBIN. But take
Mr. VON SPAKOVSKY. The same thing happened in Kansas.
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Chairman DURBIN. Do you
Mr. VON SPAKOVSKY. Democratic legislators also voted to approve
this voter ID legislation.
Chairman DURBIN. Do you dispute my premise that the American Legislative Exchange Council has played an active role in the
promulgation of the State laws that we are discussing here today?
Mr. VON SPAKOVSKY. Senator, they have a lot of model bills that
they recommend to their State legislators.
Chairman DURBIN. I will take that as a yes.
Mr. VON SPAKOVSKY. Yes, and those arethose are approved by
votes of their State legislators at their Committee meetings.
Chairman DURBIN. And do you also concede the fact that the
Koch brothers are major financiers of conservative causes, including this council?
Mr. VON SPAKOVSKY. I have no idea, Senator. I do not keep track
of major contributors to organizations like that.
Chairman DURBIN. We do. And
[Laughter.]
Chairman DURBIN. I would like to ask you as well, do you not
note that the people we are talking about by and large, whether
African American, poor, elderly, and such, are generally inclined toward voting on the Democratic side? Do you dispute that?
Mr. VON SPAKOVSKY. I do not dispute, Senator, that, for example,
you know, probably upwards of 90 percent of African-Americans in
this country vote Democratic. But what I am disputing is the idea
that voter ID, for example, depresses their turnout. The actual
numbers in elections in Georgia and Indiana since the voter ID
laws have been passed show that that is not true. There have been
significant increases in the turnout
Chairman DURBIN. Well, let me ask
Mr. VON SPAKOVSKY.of African-American voters in those elections. And ifno. If the premise that is being made here were true,
that, in fact, this suppressed their turnout, then that would have
happened. It has not happened in those States. In fact, the University of Missouri did a study of Indiana shortly after the voter ID
law went into place, and they found that there was no statistically
significant showing that that was occurring. In fact, the only thing
that came close to being statistically significant was the fact that
turnout seemed to go up in predominantly Democratic counties.
Chairman DURBIN. Professor Levitt, what is your response to the
turnout defense?
Mr. LEVITT. Well, this is where I pointed out the statistical flaws.
There is a basicand I mean basicmisconception here. It is
called the correlation-causation fallacy, and anybody who has had
statistics for a week can talk to you about it. Yes, so Mr. von
Spakovsky and I agree on one thing, that the turnout studies do
not show a great impact, but that is because they cannot. There are
so many different factors that go into an election that when you
only have two or three data pointsGeorgia before and after, Indiana before and afteryou cannot draw any real conclusions about
that.
I will give you an example. Mr. von Spakovsky supports ID restrictions. I oppose them. Mr. von Spakovsky has no facial hair. I
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have facial hair. But certainly opposition to photo ID does not
cause facial hair to grow.
[Laughter.]
Mr. LEVITT. They are simply unrelated. The 2008 election in particular is a particularly bad example. Georgia and Indiana were
battleground States for the first time in decades in a Presidential
election, and minority turnout in those States would have been
buoyed through the roof with a Presidential candidate at the top
of the ticket for a major party who was himself a minority. Under
any circumstance, in Georgia and Indiana in 2008, turnout should
have shot up. And the fact that it went up in Georgia by about 19
percent does not tell you anything about whether it would have
gone up by 17 percent plus 2 percent for ID or 35 percent minus
16 percent for ID. That is, you just cannot know what effect ID is
having with such a massive, overwhelming output of minority voters like that.
Chairman DURBIN. So let me ask you this question on early voting. It appears that consciously these legislatures are denying an
opportunity for early voting on the Sunday before an election, and
it has been stated by Ms. Browne Dianis and othersI think you
may have stated it yourselfthat in many minority communities
people go to church and then proceed to vote early. So is the
premise here that there is more fraud in early voting on Sunday
than there is on another day of the week? I am trying to follow the
logic of this effort to restrict early voting.
Mr. LEVITT. It is tough to follow that logic because I am not sure
I see any logic there. I have not heard it justified based on fraud,
although I have heard just about anything else justified based on
fraud. I have heard it justified based on cost, but the important
thing to note is that this actually restricts flexibility. You heard
from several members of the first panel that election administrators love opportunities when it is up to them to expand early voting
because it helps smooth out the profile, because it helps get people
in when they do not have to pay overtime, because it helps them
actually process voters as voters want to come in, and because it
helps them serve their constituents. And in Florida, election administrators had the flexibilitythe law allowed them to offer 8
hours of early voting over the weekend. They could choose to offer
it on Saturday, or they could choose to offer it on Sunday. And in
at least ten counties, including the most populous counties, election
administrators thought they could best serve their constituents by
offering it on Sunday. They no longer have that latitude. And the
impact on the minority community is striking.
In my written testimony, I have explained. In 2008, 13 percent
of African-Americans were the total electorate; 31 percent of the
final Sunday were African Americans. Latinos were 11 percent of
the total electorate, 22 percent of the final Sundaydouble the impact. And 2008 was a banner year for minority turnout. Look to
2010, same pattern. Twelve percent of the electorate were African
Americans; 23 percent of that final Sunday. And for Latinos, 9 percent of the electorate and 16 percent of the final Sunday. The minority communities come out to vote on that final Sunday, and now
they cannot.
Chairman DURBIN. Senator Franken.
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Senator FRANKEN. Thank you, Mr. Chairman. I unfortunately
have to go in about 5 minutes because I have an important call,
so thanks.
Professor Levitt, there is a lot of talk about this is a matter of
confidence because whether or not there have been actualbecause
we cannot find any convictions in voter fraud, so this is a matter
of confidence. Do you think that it erodes confidence when people
allege voter fraud and there just does not seem to be any convictions for it and there is noand who tends to allege voter fraud
more in your experience in this field?
Mr. LEVITT. Unfortunately, in my experience, every time a candidate loses, there are allegations of voter fraud. At least that is
the most common.
I do think it erodes confidence when people allege voter fraud
that is not there, and, in fact, you will see election administrators
really fighting very strongly allegations of voter fraud when they
know they have run clean elections. And they later turn out, to explain that all of these allegations just disappear. They are easy to
make just after elections, and then they vanish thereafter.
I can also tell you that it is often asserted that we need ID laws
in order to promote voter confidence, but here, too, I fall back on
facts. It is a crutch I have. Professor Stephen Ansolabehere and
Professor Nate Persily wrote an article in the Harvard Law Review
examining the data, so they asked people, How confident are you
in the elections? And they looked at the photo ID laws in those
States, and they found no correlation whatsoever. It turns out that
if you believe the election is stolen, you believe it no matter what
the legal regime is. And if you believe it was fair, you believe it
no matter what the legal regime is. So it just does not have that
effect.
Senator FRANKEN. Okay. Thank you.
Mr. von Spakovsky, in 1982 this Congress amended the Voting
Rights Act to prohibit not just voting practices with a discriminatory intent, but also those practices that disproportionately hurt
minority voters regardless of intent. In 2006 the Senate reauthorized that law by 98-0. It was not a voice vote, either. It was 980.
Mr. von Spakovsky, we have heard some very persuasive evidence from your fellow witnesses today that these laws from voter
ID laws to restrictive registration laws disproportionately hurt minority voters. Do you think that they comply with the letter and
the spirit of the Voting Rights Act as amended and overwhelmingly
reauthorized by Congress?
Mr. VON SPAKOVSKY. I would agree with Judge Harold Murphy,
who was a Federal judge in Georgia who found that, in fact, Georgias voter ID law was not discriminatory, and that is why he
threw out all of the claims that had been made against it that it
was discriminatory. And, in fact, that decision was upheld by the
Eleventh Circuit. So you do not need my opinion. That is the opinion of a Federal judge who not only examined that law but held
very detailed and very lengthy hearings and looked at all of the
evidence that a number of groups tried to present in court, including the ACLU and the NAACP, to show that it would have a dis-
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criminate impact. And the judge concluded that they were unable
to prove that it did.
Senator FRANKEN. Mr. Levitt, what do you have to say to that?
Mr. LEVITT. It is true that the court did find that there was no
violation of Section 2 of the Voting Rights Act. I will say that it
did not credit much of the evidence of burden about going to get
a photo ID for those who did not have that, and there are voters
in Georgia for whom this is quite burdensome.
There is a different provision of the Voting Rights Act, Section
5 of the Voting Rights Act, that the court did not have a chance
to address because the Department of Justice is the only entity
that has a chance to address it if it signs off on the law. That was
a very controversial pre-clearance exercise. I believe that there was
a staff memo, not normally leaked but in this case leaked to the
public, that came in recommending that the law not be precleared. And then the very next day, so a 70-some-page staff memo,
the very next day the law was pre-cleared without objection. And
that decision never got a second hearing in a court. There is no jurisdiction to give that decision a second hearing.
Senator FRANKEN. I see. I wanted to go back. I know that Mr.
Levitt talked about this, but this was the use of the number of additional votes in 2008 in Georgias black population. Mr. von
Spakovsky, do you think that part of that might have been because
Georgia was targeted as a battleground State and had not been for
a long time?
Mr. VON SPAKOVSKY. Well, let me make two points. First of all,
Mr. Levitt said I was only talking about one or two data points.
Well, that is untrue. There are a number of studies that have been
done, including one by the Heritage Foundation, that looked at
turnout over more than one election in all 50 States, including a
study that I looked at earlierI mentioned earlier, the University
of Delaware and University of Nebraska. They looked at turnout
in, I think, the 2002, 2004, and 2006 elections, and all concluded
that it did not depress the turnout of voters across socioeconomic
lines.
Now, with regard to Georgia, you know, we had a great turnout
in the 2008 election. In fact, you know, we had one of the highest
turnouts in decades. But the turnout in Georgia went up in comparison to other States that also went up. For example, Mississippi,
a neighboring State, large African-American population, just like
Georgia, the increase in turnout there was only about a third what
it was in Georgia. Indiana
Senator FRANKEN. Can I ask you something?
Mr. VON SPAKOVSKY. Sure.
Senator FRANKEN. Do you know how much Mississippi grew in
terms of black population during those years versus Georgia?
Mr. VON SPAKOVSKY. I do not, but I do know
Senator FRANKEN. Well, wouldnt thatexcuse me. I am sorry.
Wouldnt that have to factor in then, the significance of that?
Mr. VON SPAKOVSKY. It certainly does, but Georgias Secretary of
State recently noted that, in fact, for example, in the 2010 elections
the turnout of African-Americans outpaced their registration by
like 20 percent.
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Senator FRANKEN. Well, here is my question. You did a study,
and you put in your testimony that it was significant that the percentage of black voters grew more in Georgia than in Mississippi,
and you just cited it again. But I would think that as someone who
writes studies that it would be significant to know that the black
population in Georgia grew at more than 4 times the rate than the
black population in Mississippi. And I am wondering how you did
not factor that in and put all kinds of significance into the fact that
the percentage of blacks who voted grew more in Georgia than in
Mississippi when, in fact, Georgia was, I think, the second highest
next to Kentucky in terms of percentage of growth of black population during the last decade. Dont you think that that is a little
sloppy that you put that in without noting that Georgia grew at
more than 4 times the rate that Mississippi did? And didnt that
create an inference?
I have to go. I am sorry. I mean, doesnt that
Mr. VON SPAKOVSKY. Do you want me to answer the question or
not, or
Senator FRANKEN. I am sorry. It is more than 3 times the rate,
not 4 times the rate. I apologize.
Mr. VON SPAKOVSKY. All you are telling me, Senator, is that the
increase in turnout kept up with the rate of growth, which is just
another sign that it did not affect or depress the turnout.
Senator FRANKEN. Well, I was basically kind of saying that you
put something in your testimony that did notthat suggested
something that was not necessarilythat created an inference that
was not true.
Mr. VON SPAKOVSKY. Well, I would disagree with that, Senator.
Senator FRANKEN. Yes, but I think that it is hard to really argue
with it because you did not note that Georgias black population
grew at a much, much, much faster rate than Mississippis, and yet
all you did was put that their black voting rate increased more.
And I think that is creating an inference thateither you knew it
or you did not know it, but I think you should have checked it out.
Chairman DURBIN. Thank you very much, Senator Franken. I
appreciate your coming and your patience.
I want to ask a few more questions, and, Ms. Browne-Dianis, you
are not going to get off the hook. You were invited to be part of
this panel, and I would like to hear your comments. You probably
heard Senator Bill Nelson speak about the situation in Florida, and
voter registration. And I am concerned that a group like the
League of Women Voters would decide to get out of the business.
And I am also concerned that there are many other organizations,
nonpartisan organizations, focusing on voter registration that may
share their concerns when you impose burdens like the new Florida
law does.
So, if I can, I would ask you to comment on the impact of these
new voter registration standards. They have been alluded to here,
turning in voter registration within 48 hours and the like. If you
could comment on what impact this is likely to have on voter registration turnout.
Ms. BROWNE DIANIS. Sure. As Professor Levitt mentioned, this
actually was not the first time that the Florida State Legislature
tried to increase the penalties for voter registration groups and the
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burdens on them. However, Advancement Project and the Brennan
Center sued on behalf of the League of Women Voters before, and
we were successful in settling that case.
We believe what will happen this go-round is that a number of
requirements that groups did not have to meet before, that are
very similar to Jim Crow registration requirements of the 1950s
and 1960s where, first of all, groups will have to go and register
as registrars in the State and go through a process, a burdensome
process of filling out paperwork, will not make it very easy for
these groups.
Second, there is a 48-hour turnaround for groups to turn in completed registration forms. Of course, there is some concern. First of
all, the turn around deadline had been 10 days. A registration
group could take its voter registration form and make certain that
it was of high-quality. Part of the problem is that the new requirement will chip away at the quality of voter registration that third
party that groups are doing, because often the best voter registration groupsand I have seen this in the State of Floridatake
these voter registration forms, make sure that they are filled out
completely before they are submitted. If they are not, they go back
to the person that was applying to register to get the missing information before they hand it in to the registrar, thereby cutting down
the work that the registrar may have to do in processing incomplete forms.
It will also increase the penalties, actually the cost and the fines
that registration groups will encounter if they do not turn in the
registration forms within the 48-hour period.
So if you are looking at this as the League of Women Voters, the
NAACP, other nonpartisan groups, and thinking about the cost to
us of messing up one time or two times, it may not be worth it.
And so to have an organization like the League of Women Voters,
that has been doing voter registration in Florida for over 60 years,
pull out of Florida is very devastating. It really is about whether
or not people will have access to voting. And, again, as I said in
my testimony, African-American and Latino voters are more likely
than white voters to register through third party voter registration
drives than going into the motor vehicle office or some other agency
to do the registration.
Chairman DURBIN. So what have you found in this Advancement
Project that you are part of in terms of the incidence of voter
fraud? Professor Levitt and Mr. von Spakovsky obviously have a
different point of view. What have you found?
Ms. BROWNE DIANIS. Sure. We have looked at the studies; we
looked at what the Department of Justice did during the Bush administration in its 5-year investigation of voter fraud, coming up
with very little voter fraud. One thing that was mentioned earlier
was the issue about a Cuban coming to America and registering to
vote. The new photo identification requirements do not prevent
that. What helps is Federal law. The Help America Vote Act requires that a voter registration applicants you provide either a
drivers license number or the last four digits of their Social Security number that can be matched against their name. And so there
are other protections in Federal law that really address these
issues so that we do not have to go to new photo ID requirement.
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And, again, it is about whether or not the law allows for multiple
forms of identification. Professor Levitt got on a plane with multiple forms, not just that one photo ID.
And so, again, it is the solution without the problem; and there
is no documentation of the problem. In Indiana, they could not
come forward with a case of impersonation in front of the Supreme
Court. So if they cannot find the cases, they do not exist, because
I am sure they have been looking for them for a long time.
Chairman DURBIN. I sent a letter to a number of Governors as
a result of this hearing asking them for some information about
what is going on in their State where these laws are being
changed. I hope they respond.
I want to make particular note of a neighboring State to IllinoisWisconsin. Wisconsin has a State agency, the Legislative Fiscal Bureau, and they determined that 20 percent of the people living in Wisconsin do not possess the kind of identification required
by the new Wisconsin law. That includes 177,000 elderly people, 36
percent of young voters, 70 percent of African-Americans under the
age of 25, and approximately 242,000 Wisconsin college students
whose student ID cards do not meet the strict new requirements
in Wisconsin law.
Let me go to student ID cards for a minute here. It seems to me
that these States are going out of their way not to acknowledge IDs
issued by State universities. Texas is a good illustration. Your ID
at the University of Texas does not meet the test. However, your
application for a firearm, that ID does meet the test. Hmm. Can
we draw any political conclusions from that?
I would like to ask you, when you take a look at where this is
headed, is it a leap to suggest that these laws are more restrictive
in terms of potential Democratic voters?
Ms. BROWNE DIANIS. It is not a leap. When you look at the
groups that will be disproportionately impacted by these laws
black voters, Latino voters, young voters in States like South Carolina, Texas, and Wisconsin where they will not be able to use their
student IDsthere clearly is a correlation because those are the
groups that saw a surge in voter registration in 2008 and saw a
surge in turnout. And so there is real concern that these new restrictions are targeted at these folks so that they will not be able
to participate in such great numbers in 2012.
Chairman DURBIN. Now, one of the things Wisconsin made a
point of doing was saying we are not going to charge for the ID
card. That was smart because I think that would have just fallen
on its face as basically a poll tax. You have made the point and
others have made the point that going to get a birth certificate is
not a free enterprise. You end up paying for it usually if you need
one to prove your identity for one of these State ID cards.
But there is also another element, and I will give you an example
here in Wisconsin. There is only one DMV office in the entire State
of Wisconsin that is open on weekends. One for the entire State.
More than half of the DMV offices open during the week only have
part-time hours. Three counties have no DMV office at all.
So I have written to the Governor and asked him, You are considering closing more DMV locations because of budgetary problems. How are you going to accommodate the issuance of IDs to one
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out of five people in Wisconsin who do not have them? Is this a
problem beyond Wisconsin?
Ms. BROWNE DIANIS. Sure. As I mentioned earlier, in Texas it is
also a problem where 80 counties have either no DMV office or
have closed their DMV offices. Of course, as we see the cutbacks
in budgets across the country, we will see more of these offices closing. And when you look at the correlationactually, it is my testimonythe correlation between race and where those offices have
closed, you will find that there are disparities in the impact of the
closures of those offices, thereby making it more difficult for African-American and Latino would-be voters to actually get their ID
in order to vote.
Chairman DURBIN. Mr. von Spakovsky, you said that photo ID
laws increase public confidence in elections. But if that is the case,
what impact does disenfranchising people who cannot make it to
these DMV offices because of inconvenient locations or inconvenient opportunities, what impact does that have on public confidence
in elections?
Mr. VON SPAKOVSKY. Well, I think as I have said both in my
written testimony and here today, those claims are, quite frankly,
bogus, Senator. Let me read you a quick quote from the Indiana
Federal district court that said this: Despite apocalyptic assertions
of wholesale voter disenfranchisement, plaintiffs have produced not
a single piece of evidence of any identifiable registered voter who
would be prevented from voting pursuant to the photo ID law.
All of the same claims being made here today, that there are
huge numbers of people without photo ID, that they will not be
able to vote, were made not just in the Indiana case but also in the
Georgia case before Judge Harold Murphy, who, by the way, is not
a conservative judge. He is a Carter appointee. And, in fact, the
plaintiffs in that case venue shopped to file their case up in a small
town in the northwest corner of Georgia specifically to get that particular judge. And he also said that this failure to identify those individuals is particularly acute in light of the plaintiffs contention
that a large number of Georgia voters lack acceptable photo ID.
In both cases, when it actually came to not making claims but
producing actual evidence that there are large numbersor even
a single individual that would not be able to meet these photo ID
requirements because they either did not have a photo ID or could
not easily obtain one, these organizations were unable to do so, and
that is why those laws are in place and have been in place now for
several elections in both States.
Chairman DURBIN. Your first quote was from the Crawford v.
Marion County Election Board case which considered Indianas
photo ID law, and you have cited that case to support your point
that photo ID laws do not prevent people from voting, and you
quoted the courts statement to that effect. Your citation is misleading because the Crawford case was filed before the Indiana law
was even implemented.
Isnt it true that in Crawford there were no plaintiffs that had
been harmed by the photo law because the election in Indiana had
not occurred and Indianas voter ID law had not been implemented?
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Mr. VON SPAKOVSKY. Well, I would refer you to what Congressman Rokita said earlier. Any groups, the same groups who contested the case before the U.S. Supreme Court could have within
the last few years filed an as-applied challenge based on actual individuals that they claim are unable to vote because of the law,
and as Congressman Rokita said, you know, where are the suits
making that claim?
Chairman DURBIN. Professor Levitt.
Mr. LEVITT. So it is a little odd listening Mr. von Spakovsky begging for more litigation. I think your point is exactly right, that the
suit was brought before there was ever a chance to enforce the law.
That may or may not speak to a particular plaintiffs strategy, but
it does not speak at all to whether there were actual voters burdened.
It is also important to listen to the quote, and Mr. von Spakovsky
quoted accurately, but the judge said: There is no individual prevented from voting who has been put before the court. There were
plenty of individuals, mostly in an amicus fashion, who would have
had a really, really hard time, and the court essentially set a higher standard than public policy should ever set in determining that
it was only going to look at people who were locked out, no point
of return, not caring about the individuals who would be substantially burdened. And there are real individuals.
Since that case was brought, we know that there have been individuals without ID who have tried to vote and failed. Real people.
Retired nuns in South Bend in 2008. I believe that there were at
least ten of them turned away, and one of the nuns who was
turned away noted that many others among the 137 retired sisters
living at the Congregation of Sisters of the Holy Cross Convent
were dissuaded from voting upon learning that their sisters had
been turned awaythat is, never showed up to cast a provisional
ballot. We do not have the evidence that they tried to vote because
sisters came home and said, Hey, we just went down to the polls
and we could not do it.
Chris Connolly, a 50-year-old veteran of the Navy and Marines,
tried to vote in Indianas 2008 primary, but his Veterans Administration photo ID card did not have an expiration date, and so he
was not able to cast a valid ballot.
That is just one example here. There are many others that I
have put forward in my written testimony for you. But I frankly
think it is shameful to conceive of even one veteran who served our
country and watched brothers and sisters die to preserve others
right to vote turned away for no good reason. And, yes, it is true
that Mr. Connolly did not bring a lawsuit, but that should not be
the standard when looking at whether these laws are rational,
whether they are good public policy, and even whether they are
constitutional.
Chairman DURBIN. I want to thank this panel for joining us
today and being part of what I believe may be the first hearing on
the subject on Capitol Hill. I hope others will follow. What is at
issue here goes beyond the ordinary fare of these committees, as
important as it may be, because the right to vote in America has
been described as the right preservative of all other rights. It
really is fundamental. It goes way beyond getting on an airplane
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or anything else that we might do. And that is why I think it
should be treated with extreme care, and each generation should
accept the responsibility to make certain that we preserve this
right to vote for all those in America who have fought so hard to
maintain it over the years and who honor it as we do.
Dozens of organizations are on the ground educating the public,
challenging these laws, and fighting to preserve the right to vote
for all Americans. Many of them have submitted statements, including Lawyers Committee for Civil Rights Under Law, the Leadership Conference on Civil and Human Rights, the Brennan Center
for Justice, Rock the Vote, Demos, AARP, Fair Elections Legal Network, Constitutional Accountability Center, United States Student
Association, Human Rights Campaign, NAACP Legal Defense and
Educational Fund, the League of Young Voters, America Votes,
District Supervisor Nikiya Harris of Milwaukee, Campus Progress,
National Coalition for the Homeless, National Action Network, National Coalition on Black Civic Participation, and without objection,
I will make these statements that they have submitted part of the
record.
[The statements appears as a submission for the record.]
Chairman DURBIN. I thank these organizations and especially
thank the witnesses for the sacrifices they made to come here
today and be part of this important hearing.
The hearing record will be open for one week to accept additional
statements. Written questions for the witnesses may also be submitted, and I hope they can respond in a timely fashion.
If there are no further comments from those on the panel, I want
to thank our witnesses again for attending and all those who are
here today and my colleagues for participating. The hearing stands
adjourned.
[Whereupon, at 3:51 p.m., the Subcommittee was adjourned.]
[Submissions for the record follows.]
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Senate Hearing, 112TH Congress - New State Voting Laws: Barriers To The Ballot?

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Senate Hearing, 112TH Congress - New State Voting Laws: Barriers To The Ballot?

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S. HRG.

NEW STATE VOTING LAWS: BARRIERS TO THE

COMMITTEE ON THE JUDICIARY

Serial No. J11239

For sale by the Superintendent of Documents, U.S. Government Printing Office

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08:54 Dec 20, 2011

COMMITTEE ON THE JUDICIARY

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS AND HUMAN

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SUBMISSIONS FOR THE RECORD

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Gonzalez, Hon. Charles, a Representative in Congress from the State of

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NEW STATE VOTING LAWS: BARRIERS TO THE

UNITED STATES SENATE,

Chairman DURBIN. This hearing of the Subcommittee on the

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Senator GRAHAM. Thank you, Mr. Chairman. Obviously, I have

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Senator CORNYN. I appreciate the Chairmans consideration.

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Senator BROWN. Thank you very much. It is a pleasure to be

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Representative CLEAVER. Thank you, Chairman Durbin and

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Representative ROKITA. Thank you, Mr. Chairman. I am pleased

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Ms. BROWNE DIANIS. Thank you, Chairman Durbin, for inviting