SPEAKERS CONTENTS INSERTS
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2006
VOTING RIGHTS ACT: SECTIONS 6 AND 8—THE FEDERAL EXAMINER AND OBSERVER PROGRAM
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
NOVEMBER 15, 2005
Serial No. 109–77
Printed for the use of the Committee on the Judiciary
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Available via the World Wide Web: http://judiciary.house.gov
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
DANIEL E. LUNGREN, California
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
SPENCER BACHUS, Alabama
BOB INGLIS, South Carolina
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
DARRELL ISSA, California
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
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TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California
CHRIS VAN HOLLEN, Maryland
DEBBIE WASSERMAN SCHULTZ, Florida
PHILIP G. KIKO, General Counsel-Chief of Staff
PERRY H. APELBAUM, Minority Chief Counsel
Subcommittee on the Constitution
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STEVE CHABOT, Ohio, Chairman
TRENT FRANKS, Arizona
WILLIAM L. JENKINS, Tennessee
SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
STEVE KING, Iowa
TOM FEENEY, Florida
JERROLD NADLER, New York
JOHN CONYERS, Jr., Michigan
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
CHRIS VAN HOLLEN, Maryland
PAUL B. TAYLOR, Chief Counsel
E. STEWART JEFFRIES, Counsel
HILARY FUNK, Counsel
KIMBERLY BETZ, Full Committee Counsel
DAVID LACHMANN, Minority Professional Staff Member
C O N T E N T S
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NOVEMBER 15, 2005
OPENING STATEMENT
The Honorable Steve Chabot, a Representative in Congress from the State of Ohio, and Chairman, Subcommittee on the Constitution
The Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, Ranking Member, Committee on the Judiciary, and Member, Subcommittee on the Constitution
The Honorable Robert C. Scott, a Representative in Congress from the State of Virginia, and Member, Subcommittee on the Constitution
The Honorable Melvin L. Watt, a Representative in Congress from the State of North Carolina, and Member, Subcommittee on the Constitution
The Honorable David Scott, a Representative in Congress from the State of Georgia
WITNESSES
Ms. Nancy Randa, Deputy Associate Director for Human Resources Products and Services, U.S. Office of Personnel Management
Oral Testimony
Prepared Statement
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Ms. Penny L. Pew, Elections Director, Apache County, Arizona
Oral Testimony
Prepared Statement
Mr. Barry H. Weinberg, former Deputy Chief and Acting Chief, Voting Section, Civil Rights Division, U.S. Department of Justice
Oral Testimony
Prepared Statement
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable John Conyers, Jr. a Representative in Congress from the State if Michigan and Member, Subcommittee on the Constitution
Appendix to the Statement of Penny Pew: Election Materials
Appendix to the Statement of Penny Pew: Prepared Statement of Penny Pew submitted to the National Commission on the Voting Rights Act
Appendix to the Statement of Barry Weinberg: Problems in America's Polling Places: How They Can Be Stopped; Temple Political and Civil Rights Law Review, Spring 2002
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Prepared Statement of the Honorable Bradley J. Schlozman, Principal Deputy Assistant Attorney General, Civil Rights Division, Department of Justice, Concerning The Voting Rights Act: Sections 6 and 8, Federal Examiner and Observer Programs
Inserted into the Record by Congressman Watt during the hearing: Letter from William Jenkins, Director, Homeland Security and Justice Issues, Government Accountability Office, to the Honorables Joseph Lieberman, Henry Wazman, and John Conyers, Jr. regarding the Department of Justice's activities to address past election-related voting irregularities
VOTING RIGHTS ACT: SECTIONS 6 AND 8—THE FEDERAL EXAMINER AND OBSERVER PROGRAM
TUESDAY, NOVEMBER 15, 2005
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 12:38 p.m., in Room 2141, Rayburn House Office Building, the Honorable Steve Chabot (Chair of the Subcommittee) presiding.
Mr. CHABOT. Every Chairman should have a gavel when it was missing. So now we have it, we can get started.
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This is the Subcommittee on the Constitution. I'm Steve Chabot, the Chairman.
I want to thank you all for attending this afternoon. This is the Subcommittee, as I said, on the Constitution, and the ninth in a series of hearings this Committee has held in the last several weeks examining the impact and effectiveness of the Voting Rights Act.
I'd like to thank all my colleagues again for their assistance in making each of these hearings informative and thought provoking, as we continue our efforts to look closely at those provisions of the Voting Rights Act which are set to expire in 2007.
Today, we will focus our attention on sections 6, 7, and 8 of the Voting Rights Act, each of which is set, as I said, to expire in 2 years, in 2007, unless Congress acts otherwise and reauthorizes.
Section 6 authorizes the Attorney General to send Federal examiners to cover jurisdictions to register new voters.
Section 7 outlines the procedures to be followed by these examiners when registering new voters.
And section 8 authorizes the Attorney General to send Federal observers into these covered jurisdictions to ensure that the rights afforded by Federal law are protected.
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We have another distinguished panel of witnesses with us here this afternoon, and we want to thank them all for being here, and we look very much forward to their testimony.
The assistance provided by Federal examiners and observers in the election process has played an instrumental role in increasing minority voter participation.
After almost a century of racial discrimination in voting and several unsuccessful attempts to curtail these pervasive practices, Congress enacted the Voting Rights Act back in 1965.
Among the many different tools provided by Congress is the intervention of Federal examiners and observers. This Federal oversight was deemed necessary as result of the failure on the part of covered jurisdictions to openly accept minority voters in the political process.
In the initial years after enactment of the Voting Rights Act, Federal examiners and observers were used in record numbers. The impact these provisions have had on minority voters is reflected in the increasing number of minority voters registering to vote.
Over 112,000 minority voters have been registered by Federal examiners over the life of the Voting Rights Act.
And while the number of examiners sent to jurisdictions has decreased in recent years, the importance of Federal oversight in protecting minority voters has not diminished.
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In the last 25 years, Federal observers have been sent to over 98 covered counties to ensure that minority voters are protected.
In fact, the Department of Justice just last week sent Federal observers to 16 jurisdictions in 7 States to monitor elections, to ensure compliance with the Voting Rights Act and other Federal voting and election statutes.
Today, we will examine the impact that Federal examiners and observers have had on increasing minority participation in the political process and the continued need for these provisions in the future.
Again, we look forward to hearing from all our witnesses here this afternoon.
And at this time, I will recognize the distinguished Ranking Member of the full Committee, Mr. Conyers of Michigan, if he would like to make an opening statement.
Mr. CONYERS. Thank you, Mr. Chairman.
Before I begin, could I ask the Chair a question about the absence or withdrawal of the Department of Justice witness that was scheduled to have been here?
Mr. CHABOT. Yes. If the gentleman will yield?
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Mr. CONYERS. And I'll yield.
Mr. CHABOT. We've been informed, and, in fact, I would note that the Department of Justice was scheduled to be our fourth witness today, but due to a scheduling conflict, they couldn't be here. They have submitted written testimony, and it's been made available to us, and they've offered to make themselves available at a later date, and to respond to any written questions that this Committee might have.
Mr. CONYERS. Thank you very much for making that clear because their presence is very critical in how many of us will proceed under these—this very important consideration.
Mr. CHABOT. Would the gentleman yield one more time, please?
Mr. CONYERS. Of course.
Mr. CHABOT. I thank the gentleman for yielding. I might note that Mr. Weinberg is a former attorney with the Justice Department, and may be able to answer some of the questions that would be answered if the Justice Department were here.
But again, they—we will be able to provide those questions to them in writing and maybe an appearance down the road as well.
Thank you.
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Mr. CONYERS. Oh, you're more than welcome.
This is a very important part of extending the Voting Rights Act of 1965, and I'm very interested from hearing—in hearing from the witnesses about the relationships between the examiners and the observers.
We're—it seems to me, frankly, Mr. Chairman and Members of the Committee, that we may need to resort to a little rewriting of this section to clear up some parts of it.
The one thing I would love to hear commented on and maybe we'll do it in the questions is that we have a sent Members in for—we have sent either observers—people have been certified to come in to monitor elections, but it's usually about language barriers. It's not about racial exclusion or harassment or coercion or discouraging the vote.
For example, in the city—my city of Hamtramck, Michigan, in which there were some problems with Arab-Americans being harassed at the polls, and they—we sent in Federal observers, but in many parts of the country, where we really need somebody looking at some very fundamental questions, which leave it unnecessary for me to even discuss why we have to justify this extending and improving on these provisions 3 and 6 and 8. Every election cycle in our offices, we field numerous complaints involving election day mischief and worse from around the country—plenty of it.
As a matter of fact, we should write a report about it or Mr. Weinberg or Ms. Pew should write a book about it. Baltimore, 2002—intentions to confuse and suppress the voter turnout, where flyers misstated the date of the election and implied that overdue parking tickets, moving violations, behind in your rent were qualifications that could preclude you being allowed to vote.
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Kentucky gubernatorial election, 2003—59 precincts with significant African-American populations targeted for vote challenges by local campaign officials.
May I have an additional minute, sir?
Mr. CHABOT. Without objection, so ordered.
Mr. CONYERS. Thank you.
In North Carolina, in 1990, the Department sued over postcards mailed to African-American voters designed to discourage them from coming to polls by providing misinformation about the voter requirements.
They finally—there was a consent decree.
Now, the failure—one of the problems that were corrected from 1957 to 1965 is that we were giving retrospective relief for interference with the right to vote.
What we needed was prospective relief, and that's what's up for renewal now, and I hope we can gather a hardcore congressional group of Members that realize that that's the heart of this—one of the hearts of the hearing that we're holding here today.
We've had an election day last week. The Department sent Federal observers and personnel into 16 jurisdictions in 7 States.
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In 2004, the Department coordinated and sent 1,463 Federal observers and 533 Department personnel to monitor 163 elections in 105 jurisdictions and 29 States.
So we're here about something that is really fundamental to improving the voter process in America.
I cannot get it out of my head that we have had two presidential elections in a row where one State in each election determined the outcome of the election, and each time more election violations and accusations of violations occurred in they State that provided the winner of the election with the presidency.
And so I ask unanimous consent to revise and extend my remarks and to include it in the record.
Mr. CHABOT. The gentleman's time has expired, and so ordered.
I would just note—the Chairman would just take a very brief not necessarily rebuttal, but I would just note that in the most recent election, the State that the gentleman was referring to happens to be my State, the State of Ohio, and there were many accusations of problems at polling places and things, and study after study that's been done really indicated that it was a fair election and that the vote was accurate; and I believe it was 118,000 was the margin in Ohio. So it wasn't like Florida, where there were 500 or something that made the difference.
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So, for the record, Mr. Conyers.
Mr. CONYERS. Well, for the record——
Mr. CHABOT. Yeah.
Mr. CONYERS. —there is a book out called ''What Went Wrong in Ohio,'' based on a report by the minority staff of the Judiciary Committee that has not been rebutted to my knowledge.
Mr. CHABOT. Yeah. I would just note that I believe that's the minority's opinion on that particular book and isn't—so I'd. But we could get on and on about that. But I—the one thing we do agree on is that the Voting Rights Act is very important and has been significant in protecting the rights to vote for many people in this country, and we're looking seriously at reauthorizing this, and so I think we agree on most of what the gentleman said in his opening statement.
And so I thank the gentleman for that.
Mr. CONYERS. Thank you, Mr. Chairman.
Mr. CHABOT. The gentleman from Virginia, Mr. Scott, is recognized for five minutes.
Mr. SCOTT OF VIRGINIA. Thank you, Mr. Chairman.
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Mr. Chairman, sections 6 through 8 of the Voting Rights Act contain the Federal Examiner and Observer provisions of the act, which allow Federal employees to observe polling place and voter counting activities and serve to document and deter inappropriate conduct.
Although these provisions are permanent, the primary way these provisions are utilized is through the section five preclearance coverage formula, which is set to expire in August 2007.
Federal observers have been deployed in every year, just about every year. From 1966 through December 8, 2003, almost 25,000 observers have been deployed in approximately a thousand elections.
While observer coverage in the early years was almost exclusively designed to protect the rights of Black voters in the Deep South, in recent years it has been approximately a 50–50 split between traditional election coverage and election coverage designed to protect the rights of minority language voters in various areas of the country.
In addition, the Department has routinely deployed its own civil rights personnel to serve as civil rights monitors in jurisdictions not covered by the Voting Rights Act.
During the 2004 election, the Department of Justice sent approximately 840 Federal observers and more than 250 Civil Rights Division personnel to 86 jurisdictions in 25 States to monitor general election activities to ensure voters were free from harassment, intimidation, and other illegal activity.
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Over the last 40 years, the nature of the Federal examiner has changed. The examiner now usually plays a more administrative role; whereas, the observer's role has become more central to protecting voting rights.
Observers monitor elections in any certified jurisdiction for the purpose of observing whether eligible voters are allowed to vote, and whether votes cast by eligible voters are properly being counted.
Observers essentially serve as witnesses for what occurs in the polling place and during the counting of the vote.
In the case U.S. v. Berks County, that case shows the value of observers in documenting problems within the polls. The United States won the case, based upon the court-appointed observers' substantial evidence of hostile and unequal treatment of Hispanic and Spanish-speaking voters by polling officials.
The Berks case also illustrates why observers have a deterrent effect, because poll workers, election officials, and others involved in the election process know that their actions are being observed and recorded, some individuals are going to be discouraged from engaging in inappropriate behavior.
Sections 6 and 8 and other expiring provisions are essential to ensuring the fairness of our political process and equal opportunity for minorities in American politics.
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It's imperative that we work together to strengthen these provisions, and I look forward to the testimony of our witnesses.
I yield back.
Mr. CHABOT. I thank the gentleman for yielding back.
The gentleman from North Carolina, Mr. Watt, is recognized for the purpose of making an opening statement.
Mr. WATT. Thank you, Mr. Chairman, and thank the Chairman again and the Chairman of the full Committee for this series of hearings.
I think this is the ninth one we've had on the reauthorization.
Mr. CHABOT. That's correct.
Mr. WATT. And I think we're getting close to building the record that we need related to the expiring provisions and the necessity for their extension.
Today's hearing turns to the last set of provisions scheduled to expire in 2007. Although much of the media coverage and public interest in the Voting Rights Act has been focused largely on section 5 and section 203, the Federal Examiner and Observer Program has historically played an integral role in ensuring that voting rights are actually shielded from Election Day abuses and the violation of those rights are properly documented.
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While there is some question about the necessity of the Federal examiner provisions going forward, the role and continued need of well-trained Federal observers assigned to monitor elections in certified jurisdictions is absolutely critical.
The value to the average citizen of a Federal presence at the polls in those jurisdictions with a pattern of voting irregularities and infractions is simply incalculable.
Voters feel more at ease and confident when the Government places a high priority on election monitoring.
Conversely, those who might otherwise commit fraud or harass or intimidate eligible voters are deterred from doing so.
Despite significant gains in preventing blatant acts of discrimination at the polls, intentional efforts to undermine racial and language minority voters persist.
Last week the Voting Rights Initiative of the University of Michigan Law School issued its final report entitled ''Documenting Discrimination in Voting: Judicial Findings Under Section 2 of the Voting Rights Act Since 1982.'' And I'm going to ask unanimous consent that we enter this report in the record, Mr. Chairman.
Mr. CHABOT. Without objection, so ordered.
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Mr. WATT. Combing through the over 700 court cases, the researchers document repeated and sometimes egregious evidence of intentional discrimination against Native Americans, elderly African-Americans, and others on election day.
Just last year, at the request of Ranking Member Conyers, Congressman Waxman and Senator Lieberman, the GAO reviewed the Department of Justice's activities to address—acknowledged election-related voting irregularities, including conduct prohibited by the Voting Rights Act in Florida and other jurisdictions during Election 2000, and I would ask unanimous consent that that report be entered into the record also.
Mr. CHABOT. Without objection, also so ordered.
Mr. WATT. Although a DOJ witness could not be here today, or at least not a current employee of the DOJ, I would encourage the continued deployment of DOJ attorneys and other professionals on a judicious and non-political basis to supplement, but not to replace the work of statutorily authorized observers.
Federal observers have statutory rights to access not shared by Department of Justice attorneys.
It is important that this access to the polling place be preserved to guarantee every voter's ability to cast their vote and to have their votes counted free of unlawful discrimination.
Finally, Mr. Chairman, one final thing I want to deal with—that's—really we haven't had a hearing on yet, but there's been some testimony about over the course of our hearings, and that's we need to make sure that the award of expert fees to prevailing parties in litigation is put into the reauthorization.
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The fees of experts in these cases are just—have become a real burden for everybody. I understand that prior to the 1982 reauthorization, there was an agreement to put this provision in, and because of the crunch at the last minute, the provision actually just never got put into the law.
And I don't think there's really any controversy about it. Prior testimony has already established the incredible expense imposed on bona fide victims of voting rights violations to assemble the necessary evidence to sustain their burden of proof in a private action.
By allowing expert fees to prevail in parties, we would bring the Voting Rights Act into conformity with other Civil Rights legislation and promote the continued partnership between individual and Government enforcement that has made the act the success it is today.
I thank you, Mr. Chairman, and yield back and look forward to the witnesses; welcome them and thank them for being here.
Mr. CHABOT. I thank the gentleman. The gentleman's time has expired.
The Chair would also note the presence of a distinguished Member of the House, Congressman David Scott of Georgia, whose attendance has been exemplary at these hearings. Not actually a Member of this Committee, but I'd ask unanimous consent that he be recognized and have all the rights of a Committee Member today and be allowed to make an opening statement should he chose to do so, and also be allowed to question witnesses.
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The gentleman is recognized, if he'd like to make an opening statement.
Mr. SCOTT OF GEORGIA. Well, thank you, Mr. Chairman.
I would just like to associate my remarks with my distinguished Democratic colleagues who've spoken eloquently on the statements so far in the interest of time.
But there is—and my Republican colleague, the Chairman, quite naturally. Thank you, Mr. Chairman. I also recognize you first.
If it were not for your graciousness, I wouldn't be here with this excellent opportunity.
Mr. CHABOT. Thank you. I was listening. Thank you.
Mr. SCOTT OF GEORGIA. Well, I may add, I had already gone over and shaked [sic.] his hand and thanked him personally.
Mr. WATT. I just didn't want him to engage in that oversight, Mr. Chairman.
Mr. CHABOT. When all this goodwill is over. Yeah.
Mr. SCOTT OF GEORGIA. And only one point that I certainly want to—a point that I think we would—I'm interested in is the why Federal observers are—you think they are—Mr. Weinberg, especially I was reading over your testimony earlier today—and your point about why Federal observers are necessary, but Federal examiners are not, certainly begs for some good discussion. So I look forward to that.
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Thank you, Mr. Chairman.
Mr. CHABOT. Thank you. The gentleman's time has expired.
I'd like to—before I introduce the panel—note that without objection all Members will have 5 legislative days to submit additional materials for the hearing record.
And I'd now like to introduce our very distinguished panel of witnesses here this afternoon. Our first witness will be Ms. Nancy Randa, Deputy Associate Director for Talent Services, Human Resources, Products, and Services Division, at the U.S. Department of Personnel Management.
As Deputy Associate Director, Ms. Randa oversees the services and support provided to Federal agencies in staffing and human resources, organizational and individual assessment, training and management assistance, and technology services.
Included in her responsibilities is overseeing OPM's Voting Rights Program, which deploys observers to designated polling sites to monitor elections.
Prior to serving as Deputy Associate Director, Ms. Randa served as Acting Associate Director for Merit Systems Oversight and Effectiveness, where she spearheaded a variety of projects that support human capital management and accountability.
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Ms. Randa is an active supporter of human resources workforce transformation efforts, working on HR curriculum efforts at the graduate school operated out of the U.S. Department of Agriculture, and with the Human Resources Management Council.
We welcome you here this afternoon, Ms. Randa.
Our second witness will be Ms. Penny Pew.
Ms. Pew has served as Apache County Elections Director since 2001. She has been a certified Elections Officer with the Arizona Secretary of State's Office since 2001, as well as Arizona's League of Cities and Towns.
In 2003, Ms. Pew successfully completed the Southwest Leadership Program for Local and State Government from the University of Arizona Institute for Public Policy and Management.
In 2004, Ms. Pew partnered with the Navajo Nation Office of the Speaker on the successful Get Out the Vote 2004 Campaign. She most recently served as a panelist for the National Commission on the Voting Rights Act. We welcome you here this afternoon, Ms. Pew.
And our third and final witness will be Mr. Barry Weinberg.
Mr. Weinberg is a former Deputy Chief and Acting Chief of the Voting Section at the U.S. Department of Justice.
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From 1965 until 2000, Mr. Weinberg served in many key roles at the Department, including supervising investigations and litigation under the Voting Rights Act.
In December 1999, the Barry H. Weinberg Award was established by the Department of Justice, recognizing an individual who has made an outstanding contribution to the effectiveness of the Federal Observer Program for monitoring polling place procedures under the Voting Rights Act.
Mr. Weinberg is the author of numerous articles on the Voting Rights Act, including a 2002 law review article, co-authored with Lynne Utrecht, titled ''Problems in America's Polling Places: How They Can be Stopped.''
Welcome, Mr. Weinberg, as well, as all the panelists. And I would—as I had noted before, the—for the record, the Department of Justice was scheduled to be our fourth witness here today, but due to a scheduling conflict, they were unable to be here.
The Department of Justice has submitted written testimony, which has been made available to us, and has offered to make themselves available at a later date and to respond to any written questions that this Committee might have, and those could be submitted to the Department of Justice.
A couple of other items I just need to mention is some of you have testified before; some of you may not be aware of this. We have what's called a 5 minute rule. There are two sets of lights there. They'll go for 5 minutes. For 4 minutes, they'll be green. When there's 1 minute left, it'll turn yellow, and red light will come on when your 5 minutes is up.
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I won't gavel you down immediately at that time, but we'd ask within reason to try to stay within that 5 minutes as much as possible.
It's also the practice of the Committee to swear in all witnesses appearing before it, so if you wouldn't mind, if you could each stand and raise your right hand.
[Witnesses sworn.]
Mr. CHABOT. Each witness has indicated in the affirmative. Thank you.
And we'll now hear from our first witness. Ms. Randa, you're recognized for 5 minutes.
TESTIMONY OF NANCY RANDA, DEPUTY ASSOCIATE DIRECTOR FOR HUMAN RESOURCES PRODUCTS AND SERVICES, U.S. OFFICE OF PERSONNEL MANAGEMENT
Ms. RANDA. Thank you, Mr. Chairman and Members of the Subcommittee. I am pleased to be here this afternoon to discuss the Office of Personnel Management's role in carrying out sections of the Voting Rights Act of 1965.
OPM works closely with the Department of Justice, specifically the Voting Section of the Civil Rights Division to assign voting rights observers to locations designated by the Department.
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OPM's ultimate success with this program depends on its ability to recruit, train, deploy, and supervise observers of Election Day procedures.
Under the Voting Rights Act, at the request of a U.S. District Court or the U.S. Attorney General, OPM provides for appointment of 1: examiners, to examine and register qualified individuals denied the right to register in covered jurisdictions; 2: hearing officers, to entertain challenges to the actions of examiners; 3: support staff; and 4: observers to monitor actual polling places on Election Day and the subsequent tabulation of the votes.
Since 1966, we have deployed over 26,000 observers in a total of 22 States. Prior to 1976, we sent observers to only five States—Alabama, Georgia, Louisiana, Mississippi, and South Carolina.
However, in the past 10 years, as more jurisdictions have been subject to coverage under the Minority Language provisions of the act, we sent the next largest number of observers after Mississippi to these States: Arizona, New Mexico, New Jersey, California, Michigan, Pennsylvania, and New York.
Voting Rights observers serve as neutral monitors, witnesses, who do not intervene if there are violations. They only watch, listen, and record events that occur at particular polling sites on election days.
At present, we have a pool of approximately 900 intermittent employees, called into service on an as needed basis, who come from all walks of life, including Federal employees and retirees, students, and other public and private sector workers.
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We schedule 1-day classroom sessions for observers to provide in-depth training on the overall process, on specific observer responsibilities, and on administrative issues.
We also provide refresher training during pre-briefing sessions on the day before the election. Whenever possible, we do role playing in the training to demonstrate to the observers the proper way of handling themselves at the polling sites.
In brief, the deployment process works this way: Prior to an election, the Department of Justice notifies OPM as to when and where it will need observers.
OPM then assigns a Voting Rights Coordinator to work with Justice's lead attorney to allocate observers to polling sites, coordinate logistics, and assign a captain to oversee the execution of the deployment.
The day before an election, a Department attorney briefs the observers, specifying issues of concern and activities to be reported. Throughout the day, observers report such information to the captain, who passes this information to a Department attorney. Only the Department of Justice determines if intervention is necessary, and only the Department of Justice takes action.
Toward the end of election day, the attorney determines when to call back the observers. The observers then return to their staging site and prepare a written report, one for each polling site, to document what they saw and heard throughout the day.
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This is the bulk of what OPM does. But the statute also calls on OPM to have an examiner for each jurisdiction where observers will be assigned.
Originally, these examiners prepared a Federally-maintained list of voters who were denied the right to register in covered jurisdictions and they received calls from citizens regarding election day issues or incidents.
This function, however, has changed over the years. No voters have been added to the Federally-maintained list since 1983, as registration barriers have largely been eliminated.
Moreover, since there have been no challenges to registration decisions in the past 30 years, there has been no need for hearing officers.
Also due to advances in technology, toll-free numbers now allow citizens to report incidents and information to these examiners remotely in real time and 24 hours a day during the election period.
Under the act, OPM is required to publish voter registration qualifications of each covered State in the Federal Register, as well as to publish the list of examiners, places for voter registration, and examiner assignments.
However, these publications requirements may no longer be necessary since they are now covered nationwide by provisions of the Help America Vote Act and the National Voter Registration Act, which set out Federal standards for voter registration.
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That concludes my testimony, and I would be pleased to respond to any questions the Subcommittee may have.
[The prepared statement of Ms. Randa follows:]
PREPARED STATEMENT OF NANCY RANDA
Mr. Chairman and Members of the Subcommittee:
I am pleased to be here this afternoon to discuss the Office of Personnel Management's (OPM) role in carrying out sections 3, 6, 7, 8, 9, and 12 of the Voting Rights Act of 1965 (the Act).
Currently, implementation of the Voting Rights Act at OPM is managed by the Division for Human Resources Products and Services in the Center for Talent Services. This office works closely with the Department of Justice (the Department), specifically the Voting Section of the Civil Rights Division, to assign Voting Rights observers to locations designated by the Department. OPM's ultimate success with this program depends on its ability to recruit, train, deploy, and supervise observers of election-day procedures.
With regard to responsibilities assigned to OPM (prior to 1979, the U.S. Civil Service Commission), the Voting Rights Act provides, at the request of a U.S. District Court or the Attorney General of the United States, for the appointment of examiners to interview, ascertain qualifications, and register, if appropriate, qualified individuals denied the right to register by State and local officials in covered jurisdictions; hearing officers to entertain appeals and challenges to the actions of examiners; support staff as necessary to allow these individuals to perform their responsibilities; and observers to monitor actual polling places on election day and the subsequent tabulation of the votes. These provisions have not materially changed since initial passage of the Act in 1965. The Voting Rights Act also requires OPM to promulgate regulations on procedures for challenging the actions of examiners and to publish in the Federal Register individual State registration qualifications.
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Since 1966, we have deployed over 26,000 observers in a total of 22 States. Prior to 1976, we sent observers to only 5 States: Alabama, Georgia, Louisiana, Mississippi, and South Carolina. In the past 10 years, as more jurisdictions have been subject to coverage under the minority language provisions of the Act, we sent the next largest number of observers, after Mississippi, to these States (in this order): Arizona, New Mexico, New Jersey, California, Michigan, Pennsylvania, and New York.
Voting Rights observers serve as neutral monitors, who do not intervene if there are violations. They only watch, listen, and record events that occur at particular polling sites on election days. At present, we have a pool of approximately 900 intermittent employees—called into service on an as-needed basis—who come from all walks of life, including Federal retirees, students, other public- and private-sector workers, and some full-time employees of various Federal agencies.
We schedule one-day classroom sessions for observers to provide in-depth training on the overall process, specific observer responsibilities, and administrative issues. We also provide refresher training during pre-briefing sessions on the day before the election. Whenever possible, we do role-playing in the training to demonstrate to the observers the proper way of handling themselves at the polling sites.
In brief, the deployment process works this way: Prior to an election, the Department notifies OPM as to when and where it will need observers. OPM then assigns a Voting Rights Coordinator to (1) work with Justice's lead attorney to allocate observers to polling sites; (2) coordinate logistics, such as arranging hotel meeting space and sleeping rooms for observers, leasing mobile phones, and making rental car and airline reservations to transport observers; and (3) assign a captain to oversee the execution of the deployment.
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The day before an election, a Department attorney briefs the observers, specifying issues of concern and activities to report. For example, if a jurisdiction has been suspected of hampering non-English speakers' right to have interpreters or of not providing ballots in other languages as directed by consent decrees or court orders, the Department's attorney may ask that observers witness the provided assistance and/or make note of how many voters received language assistance. Observers may also be asked to note how many non-English speakers were turned away from polling sites or were given provisional ballots. Throughout the day, observers report such information to the captain, who passes this information to a Department attorney. Only the Department determines if intervention is necessary, and only the Department takes action. Toward the end of an election day, the Department determines when to call observers back. The observers then return to their staging site and prepare written reports—one for each polling site—to document what they saw and heard throughout the day.
That is the bulk of what OPM does. The statute also calls on OPM to have an examiner for each jurisdiction where observers will be assigned. Originally, examiners prepared a Federally maintained list of voters who were denied the right to register by State and local officials in covered jurisdictions, and they received calls from citizens regarding election-day issues or incidents. This function, however, has changed over the years. No voters have been added to the Federally maintained list since 1983 as registration barriers have been eliminated. Moreover, since there have been no challenges to registration decisions in the past 30 years, there has been no need for hearing officers. Also, due to advances in technology, toll-free numbers allow citizens to report incidents and information to examiners remotely, in real time, and 24 hours a day during the election period.
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Under the Act, OPM is required to publish voter registration qualifications of each covered State in the Federal Register. It has also been required to publish the list of examiners, places for voter registration, and examiner assignments. However, these publication requirements may no longer be necessary, since they are now covered nationwide by provisions of the Help America Vote Act (HAVA) and ''Motor-Voter'' statute (National Voter Registration Act), which set out Federal standards for voter registration.
OPM's Voting Rights Program costs have ranged from under $1 million in earlier years to a high of $4 million in the Fiscal Year that included the 2004 general election. Putting aside the expected increase in 2004, the overall trend has been for an increase in program coverage and cost, particularly for minority-language coverage.
That concludes my testimony, and I would be pleased to respond to any questions the subcommittee may have.
Mr. CHABOT. Thank you very much. Ms. Pew, you're recognized for 5 minutes.
TESTIMONY OF PENNY L. PEW, ELECTIONS DIRECTOR, APACHE COUNTY, ARIZONA
Ms. PEW. Thank you, Mr. Chairman, Members of the Subcommittee, for the opportunity to testify today for the reauthorization of section 6 and section 8, as they relate to section 203 of the Voting Rights Act.
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As stated before, my name is Penny Pew, and I've been the Elections Director in Apache County since 2001.
And one of our primary focuses has been providing the minority and prospective voters the necessary election materials to ensure that each vote cast is an informed vote.
While this education began in the 1990's as a mandate, we continue to provide these services to our electors so that the rewarding changes that we have experienced will continue.
I would like to speak to the Federal Observer Program, which I believe was implemented following guidelines from the consent decree.
The Observer Program has successfully functioned as a check and balance feature in the translator program. One of the three-member teams sent to the 33 precincts on the Navajo Nation speaks Navajo, who I view as a partner.
During the day, these observers are able to witness poll workers and translators assisting the voters as they impart ballot information. The observers ask voters if they may observe the process. They do not interfere with the process and have never, to my knowledge, given any instruction to improve or to correct a process.
The observers note different scenarios occurring during the course of the day to ensure that fraudulent information is not given to voters. In some instances, the observers report happenings to their DOJ central contact, who I meet with on each Federal Election Day.
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We are able to discuss the information relating to the day's events at the polling places. This is absolutely the best way for me to know instantaneously of situations that can be rectified in a very timely manner.
I explain to those poll workers that the individuals have been invited to help us do our duties. Observers are greeted by the inspector of the polling place in an attempt to put all parties at ease and to assure the poll workers that the observers should not be viewed as hostile.
Identification is presented and worn by each observer throughout the day. Due to the rural area of Apache County and in an attempt to minimize their presence, observers are requested to dress casual to better fit their surroundings.
In follow-up post-election meetings, these notes are discussed, and, if necessary, changes are made in personnel or training procedures to ensure that no repeat incidents occur.
As you are aware, the Navajo language is unique and could be very easily misinterpreted. Translators who serve on these election boards attend exclusive training classes, which are taught by full-time outreach workers, using written copies, flip charts, cassette recordings.
During these classes, members are asked to read aloud the information together as a whole group. Open questions and clarifications are given by the outreach workers to ensure that each translator is uniform in their ballot translation, voter to voter, precinct to precinct.
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In 2004, Apache County extended partnership to include the Navajo Nation Office of the Speaker. We provided various educational materials through chapter meetings, community forums, fair booths, and frankly anywhere there were voters.
I am pleased to report that this was a worthwhile project. As it turned out, Navajo Nation increased to 17,955 voters, comparatively to 14,277 voters in 2000. Additionally, the numbers increased in a precinct on the White Mountain Apache land from 44 voters in 2000 to 62 in 2004.
Now, as an Election Director, I've spent untold hours developing a program that is indigenous to Apache County. I've spent time in the polls and in the communities listening to these voters, learning what we as election directors can do to ensure that the most fundamental right as citizens of this great nation enjoy the right to an informed vote, with the knowledge that it will be counted without worry of fraudulent actions in or out of the polling place.
In closing, I fervently believe that is incumbent upon this Committee to use the expertise of each witness to further the Voting Rights Act, sections 6 and 8, Federal Examiner and Observer provision; and continuing programs such as the one used in Apache County.
The observer program has proven successful for us, and has given us insight to the happenings at each polling place that would otherwise go unnoticed.
For these and other additional reasons, which are stated in my written testimony, the reauthorization of these sections is critical to maintaining the robust program in Apache County.
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And, again, thank you for your—for this opportunity.
[The prepared statement of Ms. Pew follows:]
PREPARED STATEMENT OF PENNY L. PEW
Thank you Mr. Chairman and committee members for the opportunity to testify before you today regarding the reauthorization of Section 6 and Section 8 as they relate to Section 203 of the Voting Rights Act, 42 U.S.C. 1973c.
My name is Penny L. Pew, and I am the elections director of Apache County in northeastern Arizona. I have had the pleasure of this position since June of 2001. My primary focus has been on providing the minority and prospective voters, the necessary election materials to ensure that each vote cast is an informed vote. While this education began in 1982 as a mandate, we continue to provide services to our electors so that the rewarding changes that we have experienced will continue.
FEDERAL OBSERVER PROGRAM
Following a lawsuit charging Apache County with discrimination against Native Americans, as it related to election procedures and materials, a 1989 Consent Decree was entered establishing the Navajo Language Election Information Program. A portion of this program was the observer program which has successfully functioned as a check and balance feature to this program.
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According to the 2000 census, the total population of Apache County is 69,423 persons, of whom 53,375 are Native American (76.9%). The voting age population of 42,692 persons, of whom 31,470 are Native American (73.7%); and that of all Native Americans of voting age, over one-third are limited-English proficient (11,377 persons).
Most of the 3 member teams sent to the 33 precincts located on the Navajo Nation have at least one Navajo speaking member, who I view as a ''partner''. During the day, these observers are able to witness poll workers and translators assisting the voters as they impart ballot information. The observers ask voters if they may observe the process. They do not interfere with the process and have never to my knowledge given any instruction to correct or improve a process. The observers note different scenarios occurring during the course of the day to ensure that fraudulent information is not given to voters. In some instances, the observers report happenings to their DOJ central contact, who I meet with on Election Day. We are able to discuss the information relating to the days events at the polling places. This is absolutely the best way for me to know instantaneously of situations that can be rectified in a timely manner.
I explain to the poll workers that these individuals have been 'invited' to help us as we do our duties. Observers are greeted by the Inspector of the polling place in an attempt to put all parties at ease and assure the poll workers that the observers should not be viewed as hostile. Identification is presented and worn by each observer throughout the day. Due to the rural area of Apache County and in an attempt to minimize their presence, observers are requested to dress casual to better fit their surroundings.
In a follow-up post election meeting, these notes are discussed and if necessary, changes are made in personnel or training procedures to ensure no repeat incidents.
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Translators who serve on the election boards attend extensive training classes which are taught by full-time outreach workers using Power Point presentations, flip charts, cassette recordings as well as written copies, of the ballot information. Each translator and Inspector (lead poll worker) are provided a cassette and also written ballot information. During the training classes, each member is asked to read aloud the information. This is accomplished in a relaxed atmosphere where the class participates as a whole. Open questions and clarification are given by the outreach workers to ensure that each translator is uniform in their ballot translation, voter to voter, precinct to precinct.
VOTER OUTREACH AND EDUCATION
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Apache County has provided bulletin boards to each chapter house facility where upcoming election information is posted and kept current. Voters have learned to use this tool in gaining the necessary election information. Periodic checks are done to ensure that only current information is posted.
Radio stations and newspapers have been instrumental in distributing the necessary election information. This was originally outlined in the Consent Decree 1989 with many additional measures added for further enrichment.
Language Training
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As each of you are aware, the Navajo language is unique and without extensive linguistic training, could be misinterpreted. A Navajo Language Election Glossary has been developed over the years with input from outreach workers in Arizona, New Mexico, Utah, and the Navajo Nation in an effort to make the election terminology used county to county and state to state as uniform as possible. As times and technology change, the glossary is updated through proper approval.
The outreach workers use this glossary to translate ballot issues in a Tri-County forum to further ensure uniformity. This is imperative, as many precincts lie on county lines where voters may see more than one county ballot, radio or newspaper ads or other informational materials.
Translators/Poll workers
Poll workers are given a detailed manual to use as a guide in fulfilling their obligations on Election Day, in a uniform manner. Additional items are distributed to ensure that the poll worker has all the tools necessary to assist the voter. In an effort to further educate, role playing was implemented and has proven to be a valuable tool in explaining ballot measures, as they are often very complicated.
Due to the extensive land area of over 11,000 square miles, training classes are held in various locations throughout the county to allow the poll workers and translators easier access to training. Each individual is compensated for their time to attend these classes.
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After the training class, poll workers are encouraged to listen to their audio cassette and practice the issues. Many mentioned that they didn't have access to a player. So, in 2003, we established a cassette player library for workers to check out a player to listen and study the information. This was well received and the post election remarks indicated improvement; additionally, all cassette players were returned to the county library.
State and County Monitoring of Effectiveness
Meetings are schedules on Tri-State and Tri-County levels to discuss any issues that may need to be remedied. Any/all issues are handled by each county official to keep uniformity in the informational disbursement process. Tri-county personnel work closely on translations and exchanges of information to better ensure uniformity in the disbursed information. NEA officials are invited and usually attend these meetings with valuable input on the issues.
NEA (Navajo Election Administration)
All information is approved by the NEA prior to distribution including but not limited to announcements (radio and print), ballot translations, audio tapes, and any other training information. All training schedules are provided to the NEA and an open invitation to attend any/all class.
The following is taken from a letter written to me by Kimmeth Yazzie, Navajo Nation Program Coordinator/Language contact:
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''The purpose of the minority language Consent Decrees has generated a much greater cooperation and assistance to provide the necessary election and voter registration services to the Navajo Nation within the counties, much more than was anticipated from the beginning. Although the Consent Decree specific to Apache County expired in 1992, the county and the Navajo Nation continue to strive forward to this day to make voter registration and elections easier for the citizens in Apache County. Such services as situating outreach offices and Navajo speaking personnel in local areas with additional personnel when it becomes necessary, has made voting easier for the people of Apache County. An example, the development of the Navajo Glossary has opened doors to better communication with the Navajo Nation citizens as well as other tribes seeking development of the same methods of outreach. Developments of graphic materials and video and audio recordings provide our people with a better understanding of the elections. Bringing voter registration to the local area eliminates the long distance travels just to register to vote for outlying areas. Setting up and coordinating events together with the Navajo Nation and the county provides voters with two services at one location and a better understanding of the two distinctive elections. The clearance of all materials and information through the Navajo Election Administration provides assurance to the Navajo Nation that the proper and sufficient election information is provided to the people of the Navajo Nation, thus developing trust and alliance. Ideas to better provide services are always being exchanged between the county and the Navajo Nation. We learn from each other. Since the expiration of the Consent Decree in 1992, the relationship between the tribe and the county has grown and advanced beyond the bounds of the Consent Decree requirements.
In closing, I can honestly say that the language program has been positive for our county in educating and promoting our most fundamental right . . . the power of our vote.''
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Outreach/Satellite Offices
Apache County has two county district offices which are on Reservation Land; District I in Chinle houses a satellite office. District II in Ganado houses a second office. Voters and residents of surrounding areas visit to check voter registration and to receive any election updates.
Regular meetings are scheduled and appear on agendas for the chapter visits at which time presentations are given using flip charts, PowerPoint presentations, audio aids as well as other means to convey the necessary information. Presentations are given in the Navajo language.
All political views of the outreach workers are kept unbiased and neutral at all times. Implementation to 'piggy-back' with the jurisdictions has been effective in that the outreach worker gives factual ballot information and the jurisdictions are available to answer any additional questions that the public may have.
Deputy Registrars
Deputy Registrars have proven valuable in assisting the voters in the ongoing voter registration and education process. Each Deputy Registrar is trained in current procedures. Each chapter office, Navajo Election Office and other Navajo Nation officials are trained and have provided further election information. Each chapter maintains a current voter listing, voter registration forms and during election cycles, early voting request forms.
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Collect Phone Calls
Apache County happily accepts collect calls to assist the caller in election-related information. In an effort to better serve the people, an '800' number is advertised on all out-going materials and advertisements as well as the website.
Voter Education
Numerous items with voter information in distributed to spark interest in what has been viewed as boring in the past. Colorful brochures and interactive community meetings have been the focus in gaining voter recognition. For instance, during the Presidential Preference Election, February, 2004, in an effort to better explain who may vote, an informational brochure was produced in English, receiving positive input. A mirror copy was then distributed in the Navajo language. This helped gain further notice among the voters, with the outreach workers receiving community comments for further ideas in education. We also provide ''I Voted'' stickers in the Navajo language and it has been spectacular.
VOTER TURNOUT
In 2004 Apache County extended partnership to include the Navajo Nation Office of the Speaker in an effort known as ''Get the Vote Out''. Due to the low voter turnout experienced in past elections, we provided various educational materials at chapter meetings, community forums, fair booths, and anywhere there were going to be voters. I am pleased to report that this was a worthwhile project as turnout in precincts on the Navajo Nation increased to 17,955 voters casting ballots in 2004, comparatively 14,277 voters participated in 2000. Additionally, on the White Mountain Apache Lands, Apache County has one precinct where 44 voters participated in 2000, rising in 2004 to 62. This is due in part to the education at school and community meetings.
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Political Protocol
During the 2002 election cycle, a non-Native American entered several polling places without the proper clearance. While inside the polling place, he intimidated the poll workers and voters, creating chaos as he progressed to various polls. For this reason alone, we implemented a Political Protocol presentation and accompanying brochure. The brochure is included in each candidate packet and a personal invitation to attend a short meeting outlining the proper protocol when campaigning on Native Lands. This is sent to each candidate, county, state or federal. We had great success and I am pleased to report that during the five elections which were held in Apache County in 2004, we had no reported violations in or around the polling places.
Early Voting
Ballot request forms are given to the Chapter Officials, County District offices on the Navajo Nation, State offices and the NEA. Outreach workers keep forms with them at all times while traveling and presenting throughout the county. These forms can also be accessed using the website www.co.apache.az.us/recorder.
Early Voting drives are unique in Apache County. After specified advertisements in newspaper and on radio, a trailer which has been painted in a patriotic motif travels to scheduled locations throughout the rural areas. This trailer can be found many places such as on fence lines, shopping lots, trading posts, and post offices to name a few.
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Election Day
Apache County employs trained bilingual poll workers at each of the polling places on Native Lands. These poll workers are recruited with the help of chapter officials, postings and word of mouth.
Where joint elections are held between the Navajo Nation and the County, where polling places are shared, all efforts are made to make certain that the poll workers are trained and that a good working relationship is established between the Navajo Nation and the County officials to provide an enjoyable election day. The NEA and the County exchange poll worker lists to ensure that no candidate or close relative appears on either ballot.
Each polling place is monitored for effectiveness by a 'Troubleshooter.' This person is a county employee who has received training in the election process and is able to identify and correct irregularities on-the-spot. This person is the liaison between the county elections director and the polling place.
CLOSING COMMENTS
As election director, I have spent untold hours developing a program that is indigenous to Apache County. I have spent time in the polls and in the communities listening to the voters, learning what we as election directors can do to ensure that the most fundamental right as citizens of this great nation enjoy . . . the right to an informed vote with the knowledge that it will be counted without worry of fraudulent actions in or out of the polling place.
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In closing, I fervently believe that it is incumbent upon this Committee to use the expertise of each witness to further The Voting Rights Act: Sections 6 and 8—Federal Examiner and Observer Provisions, in continuing programs such as the one used in Apache County, Arizona as it relates to the Native Americans. The observer program has proven successful for us and has given us insight to the happenings at each polling place that may otherwise go unnoticed. For these and other additional reasons, which are stated in my written testimony, the reauthorization of these sections is critical to maintaining the robust program in Apache County. Again, I thank you for this opportunity.
Mr. CHABOT. Thank you very much, Ms. Pew.
Mr. Weinberg, you're recognized for 5 minutes.
TESTIMONY OF BARRY H. WEINBERG, FORMER DEPUTY CHIEF AND ACTING CHIEF, VOTING SECTION, CIVIL RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE
Mr. WEINBERG. Thank you very much, and thank you for asking me to come here.
I may be one of the few witnesses that you have who is not connected with any office or organization, and probably one of the fewer witnesses that you're going to have that was there at the inception of the Voting Rights Act and saw the Federal examiners listing people to vote and saw the Federal observers when they first started.
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But I know I'm the only one here among the witnesses who was a supervisor of the Federal Examiner and Observer Program in the Justice Department for 25 years, and it's from that vantage point that it seems to me that there are at least three questions that ought to be addressed now when we're thinking about the reauthorization of these provisions.
The first question is whether the provisions for Federal observers and Federal examiners are still needed. I think that the answer to that question is that the provisions for the Federal observers are crucial to the enforcement of the Voting Rights Act, and need to be reauthorized, maybe even made permanent; but the provisions for the Federal examiners not so much.
The Federal examiners' functions—most of them are outdated. The procedures are cumbersome and archaic, and I don't think they serve any real purpose anymore. And so my conclusion would be that they're not needed anymore in the Voting Rights Act as it stands today.
The second question I think is whether there should remain a link between the certification of a county for Federal examiners and the later assignment of Federal observers to the county.
Under the Voting Rights Act, the certification of a county for Federal examiners is a prerequisite to the assignment of Federal observers.
But the functions that they perform, the link that they had, doesn't exist anymore. When Federal examiners first registered people to vote, those people had to go to polling places where there were hostile election officials. You had African-American voters facing hostile White polling place workers and voters for the first time in many, many rural areas across the South. The Federal observers were written into the act to watch what happened to those newly enfranchised voters and to allow the Justice Department to take action to assure their safety in the polling places. That situation just doesn't exist anymore, and I think the linkage is cumbersome and ought not to exist either.
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The third question I think is whether the Federal observers ought to be continued as a law enforcement function under the Voting Rights Act, which is what they perform; or whether it's possible to make the reports and information from the Federal observers public after the election, as is done overseas.
I just got back last week from being an international observer in an election in Azerbaijan, and I've done that a few other times. The organizations that do that kind of work do it in order to publicize the information that they get from the polls immediately after the election.
But I think that would be a real mistake. I think that the use of Federal observers in law enforcement is important and ought to be continued and the publication of the information they get immediately would be detrimental.
All this revolves around what I consider the most important point, which is that the existence of Federal observers is crucial, and it's irreplaceable in the Voting Rights Act. After all, there's no other way for the law enforcement function of the Justice Department to be able to be performed with regard to harassment and intimidation and disenfranchisement of racial and language minority group members in the polling place on Election Day. And that's because State laws are written to keep other people, including Federal investigators out of the polls.
State laws, almost all of them—and they vary, but invariably they allow in the polls on Election Day the voters and the polling place officials, and they keep everybody else out. They allow police in if there's a disturbance, but mainly it's to have this safe harbor for voters on Election Day. But the effect of that, from a law enforcement point of view, is it keeps the law enforcement officers out. There is no way that the Justice Department lawyers could know about this harassment and this intimidation without the Federal observers, because the Voting Rights Act allows the Federal observers in. Federal observers are witnesses. They are the eyes and the ears of the Justice Department attorneys in the polling places.
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Without them, the law, the enforcement of the Voting Rights Act would be much abused, and so I would—my conclusion is that the observer provision is necessary. It ought to be reauthorized. It ought to be continued, and I think there should be some consideration given to making it permanent, taking it out of the special provisions and making it adjunct to sections 2 and 203 of the Voting Rights Act.
[The prepared statement of Mr. Weinberg follows:]
PREPARED STATEMENT OF BARRY H. WEINBERG
[Note: Image(s) not available in this format. See PDF version of this file.]
Mr. CHABOT. Okay. Thank you. The gentleman's time has expired.
The panel up here is bound by the same rule as the witness panel is, and it's a 5 minute rule, so we will each have 5 minutes to ask questions at this time, and the Chair recognizes himself for that purpose.
And the question I'm going to ask—I'll just go down the line and let each of you deal with it.
And some of you have already touched on this in your testimonies obviously, but much of what we're doing is setting a record here, and so some repeating I think is probably good. It's been suggested in some of the written testimonies that the Federal Examiner Program may no longer be necessary.
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Mr. Weinberg's written testimony further suggested that Congress should amend section 8 to make certification for the deployment of Federal observers independent of Federal examiners. Would each of you comment on the Federal Examiner and Observer Program and why the assistance of Federal observers is still necessary or not.
Ms. Randa?
Ms. RANDA. Thank you, Mr. Chairman. We play—we at OPM play a very limited support role to the Department of Justice in this program, and I have testified to the fact that the role of Examiner has evolved over the years and changed. But beyond that, I would think we would defer to the Department of Justice to make any decisions about exactly what changes should be made in the future.
Mr. CHABOT. Okay. Thank you. Ms. Pew?
Ms. PEW. I can speak to the Federal Observer Program and believe that it is well worth the time spent. It is my—those are my eyes and ears inside the polling places. I have very limited examiner contact. But I can speak to the Federal Observer Program; that it has been absolutely phenomenal. It's been a great boon in our county.
Mr. CHABOT. Thank you. Mr. Weinberg?
Mr. WEINBERG. Thank you. I mean I think Ms. Pew's response is somewhat indicative. She's been intimately involved as a county election official with the results of the work of the Federal observers, and has no knowledge of what the Federal examiners do.
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And I think that's not her fault. It's because the Federal examiners just don't do much anymore. I think OPM, if we were being candid in the back room, would say they have to maintain all these lists of federally registered voters. They have to keep them current, keep the addresses up. Mostly now, they're removing people's names from those lists of federally registered voters, because they're dying.
Yet, the counties can't take those voters off their voting rolls without an okay from the Office of Personnel Management. I mean I think to some extent it is now getting—what were protections are now getting in the way of several functions, and I think they're not needed.
As far as the certification, and you know I think observers are important. As far as how to get them into a county the first time, I do think a certification procedure is important. I think it assures everyone that there is a need for this law enforcement function to go on.
But as it stands now, the Attorney General has to personally sign the certifications. I think that's unnecessary. I think that function could be delegated to the Assistant Attorney General, much the same way as the Assistant Attorney General has authority delegated to object to voting changes under section 5 of the act, and I think that it could go on as a provision on its own.
I think it should.
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Mr. CHABOT. Thank you. And my second question, Mr. Weinberg and Ms. Randa, if you want to comment on it, you could as well.
How does the Department of Justice determine whether Federal observers are necessary?
Mr. WEINBERG. There's sort of two tracks on that. And, you know, I must qualify everything I say by saying I haven't been at the Justice Department for almost 6 years. I don't know what's changed and what's not. I doubt that it has changed very much.
One track is where there's an investigation before the election that starts 6 weeks before an election, and is described in some detail in my extended remarks. It's an investigation. It starts out with telephone calls to local officials, to minorities who are knowledgeable in the area about election matters and devolves down to field investigation by attorneys who relay information up to a central person in the Voting Section of the Civil Rights Division, who then combines the information; is talking with OPM; puts together a memorandum setting out the facts for each site, and recommending how many observers are needed.
So it's a very intensive, a very detailed law enforcement investigation. That's how it usually works in Southern areas. Where the concern is with language minority provisions of the Voting Rights Act, it's a little bit different. There still is an investigation, but because the problems involved with violations of the Language Minority provisions of the Voting Rights Act usually are systemic and do not depend on any particular election contest in a city, county, or school district——
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Mr. CHABOT. Do you do that before each election?
Mr. WEINBERG. Yes.
Mr. CHABOT. Okay. Thank you.
Mr. WEINBERG. In the specially covered areas.
Mr. CHABOT. Okay.
Mr. WEINBERG. Yes.
Mr. CHABOT. Thank you. You can continue.
Mr. WEINBERG. Because of the language violations of the Language Minority provisions usually are more systemic, an initial investigation is what's needed. Usually, these days, there's litigation that results and a court certifies the county. So you have everything you would have leading up to litigation, which is a lot of work and a very intensive effort.
After that, the first election, however, the observers could be assigned again and again without repeated investigations. It's the information really one gets out of the polling places for the language minority coverage that would recommend going or not going again to the next election.
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Mr. CHABOT. Okay. Thank you very much. My time has expired, but, Ms. Randa, is there anything that you want to——
Ms. RANDA. I would just confirm what Mr. Weinberg said that our involvement is to coordinate on the number sent to each polling site.
Mr. CHABOT. Okay. Thank you very much. My time has expired.
The Ranking Member of the overall Committee, Mr. Conyers, is recognized for 5 minutes.
Mr. CONYERS. Thank you, Chairman Chabot.
Three considerations. I start with Mr. Weinberg. There's been only one certification by the Attorney General to section 6, Titus County, Texas. Does that mean a lot are coming through the courts under section 3 or does it mean there need to be a lot more?
My second consideration—and I'll go over these again—is this linkage between certification of observers and its validity.
And then finally, I had one of the witnesses tell me that Federal observers are kept out of the polls by State law, so it's frequently hard for them to see anything that's happening. It's hard to be an observer if you can't get into the polls under State law.
Can you help put some of these things into context?
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Mr. WEINBERG. I can help with some of them I think.
Taking the last one first, State law would keep most people out of the polling places, but Federal observers get to in the polling places because the Voting Rights Act lets them. It's the authorization of the Voting Rights Act that lets Federal observers in. Otherwise, the Federal observers are like people off the street, and just can't walk into a polling place on Election Day.
As far as the certifications go, as I haven't been involved in that, I don't know. I went onto the Justice Department website a couple days ago to see if I could tell what's been going on in the last few years, and there have been a lot of court certifications it looks like as a result of litigation under the Language Minority provisions of the Voting Rights Act. And observers are being assigned to watch elections in those areas.
I don't know why there have been few, if any, certifications by the Attorney General of counties.
Mr. CONYERS. Well, from everything I've been hearing, you know we've got piles of complaints that come in. Unless all of them are invalid, I mean this doesn't add up, Mr. Weinberg.
Let me put it like this: Are attorneys who are Federal observers precluded from coming into the voting booths?
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Mr. WEINBERG. The Justice Department attorneys in most States would be precluded from going into the polling places because they're neither registered voters there nor polling place officials.
The Federal observers, however, can go into polling place where they're assigned—any county jurisdiction that's been certified.
Mr. CONYERS. Ms. Pew, do you or Ms. Randa, want to add anything to this discussion.
Ms. PEW. I will add that in Arizona, observers, with prior approval, are welcome into our polling places. We ask that they submit something in writing to me by the Friday prior to the election, so that I can send that to the poll workers.
Given that a lot of them are non-Native American, and then poses a threat. We did have an incident in 2000 that prompted quite a chaotic sense in about 17 of our precincts, and, for that reason, we began a political protocol that is mandatory for our observers.
Mr. CONYERS. Could you get a little outdated considering the way the process is working now?
Ms. PEW. I can't respond to that, because in our county the Recorder's Office and the Elections Office are separate. The Recorder's Office maintains the voter rolls, as far as purging those, as Mr. Weinberg has spoken to, so I can't respond to that.
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Mr. CHABOT. Ms. Randa?
Ms. RANDA. I wouldn't want to hazard a conclusion about whether it should or how it should change, but I will confirm what Mr. Weinberg said about there having been very little activity other than removing names from the list of registered voters. So that part of the role is what has evolved.
Mr. CONYERS. Thank you, all. Thank you, Mr. Chairman.
Mr. CHABOT. Thank you. The gentleman's time has expired.
The gentleman from Virginia, Mr. Scott, is recognized for 5 minutes.
Mr. SCOTT OF VIRGINIA. Thank you. Thank you, Mr. Chairman.
Mr. Weinberg, let me ask you a little more specifically, just from a practical point of view, if a local civic organization suspects problems in a certain area, how do they get an observer into that area now, and how would you propose changing that mechanism?
Mr. WEINBERG. Getting in touch with the Justice Department about the need for Federal observers is the easiest thing on earth. All you need to do is call. A telephone call will do it.
In fact, the Justice Department attorneys rely very, very greatly on information and input from people who are in the counties, whether they are victims or witnesses or just concerned citizens.
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We always were open to those kinds of contacts. If somebody has a particular problem in any county, we always encouraged to call us, let us know what the concern is, and we will investigate.
If the investigation reveals facts that show violations of the Voting Rights Act and need for observers, the observers will be sent.
Now, in Virginia, there are no certified counties, so that whole certification process we were talking about before, where there has to be an investigation, and then a recommendation to the Attorney General to sign a piece of—he actually signs a piece of paper that says I hereby certify, and then that's published in the Federal Register before Federal observers can be assigned.
Mr. SCOTT OF VIRGINIA. And that's the process now?
Mr. WEINBERG. Yes.
Mr. SCOTT OF VIRGINIA. And are you proposing any change to that process?
Mr. WEINBERG. Yes. I'm proposing that in my imagined the new process there would be an investigation and the Assistant Attorney General would agree to a recommendation and then sign a piece of paper that says that Federal observers would be needed to watch proceedings in the polling place in order to enforce the Voting Rights Act.
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Mr. SCOTT OF VIRGINIA. Now, how long does that certification stay active?
Mr. WEINBERG. Now, it stays active forever. A jurisdiction can petition under section 13 of the Voting Rights Act to stop the Federal examiner appointment. I don't think anybody ever has.
Mr. SCOTT OF VIRGINIA. Do the observers have any specific qualifications?
Mr. WEINBERG. Observers, by and large, OPM, as I understand it tries to have observers be OPM personnel where that's possible; in some instances, where language minority voters are concerned, there may not be sufficient numbers of OPM personnel who speak that language, especially in Indian country. And so people from other agencies are taken in.
But the Federal observers are personnel who are trained. There are periodic trainings through the year, and then there are on-site trainings that are specific and briefings of the observer before the election.
Mr. SCOTT OF VIRGINIA. If you didn't have the observers, how would you investigate complaints?
Mr. WEINBERG. When I started in the Justice Department, I was law clerk in the summer of 1965. The Voting Rights Act passed in early August, but we still had many lawsuits that were pending. They were terribly cumbersome. They're very difficult to investigate. The records alone are very difficult to get, and I think the Court, in South Carolina v. Katzenbach, which found the Voting Rights Act special provisions constitutional, recognized how difficult it is to mount a standard garden variety lawsuit against violations of the Voting Rights Act.
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So, absent the Federal observers, it would be terribly, terribly difficult.
Mr. SCOTT OF VIRGINIA. Thank you, Mr. Chairman.
Mr. CHABOT. Thank you. The gentleman's time has expired.
I'd ask unanimous consent that the gentleman be given one additional minute, if he would yield to me for a moment?
Would the gentleman from Virginia yield to me?
Mr. SCOTT OF VIRGINIA. Yes.
Mr. CHABOT. Okay. I just wanted to follow up with one question, Mr. Weinberg. What criteria would you envision for certification of observers?
Mr. WEINBERG. I think the criteria would be that there is evidence of probable violations of the Voting Rights Act. I mean I don't know that one needs much more.
The certification procedure now is just about that. It's—for examiners. It's not a detailed certification.
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Mr. CHABOT. Okay.
Mr. WEINBERG. And I would think it shouldn't—certainly not be more detailed and possibly a little less. But it would be keyed to possible violations of the Voting Rights Act.
Mr. SCOTT OF VIRGINIA. Well, Mr. Chairman.
Mr. CHABOT. I yield back.
Mr. SCOTT OF VIRGINIA. Reclaiming my time, when do they certify it now?
Mr. WEINBERG. They certify—now the certification is it's necessary to enforce the 14th and 15th amendments.
Mr. CHABOT. If the gentleman would yield? Isn't it also or 20 written complaints?
Mr. WEINBERG. Yes. There's an alternative that if you get 20 written complaints. That, however, triggers the Attorney General's consideration. And so it all devolves pretty much to the same point, which is we in the Justice Department had to figure out that there were violations of the law that were probable and usually were happening and persuade the Attorney General of that.
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Mr. CHABOT. Thank you. The gentleman's time has expired.
The gentleman from North Carolina, Mr. Watt, is recognized for 5 minutes.
Mr. WATT. Mr. Chairman, let me defer to Mr. Scott, if I can. I'm trying to see whether there are any things I need to question about.
Mr. CHABOT. Okay. All right. We'll just start from scratch here then, and yield to the gentleman from Georgia. Mr. Scott is recognized for 5 minutes, and then we'll come back to Mr. Watt.
Mr. SCOTT OF GEORGIA. Thank you, Mr. Chairman.
Mr. Weinberg, I wanted just start for a moment with your suggestion that we move away from the Federal examiners, because I—given your history, you were there at the beginning. You understand the whole make up and need for both examiners and observers. I'm not quite convinced, just from my own preliminary investigation of this that we may need to do away with examiners.
And your reason for saying we may need to modify or do away with the examiners was that the link doesn't exist. And I think your meaning of the link that I got was your quote was that there were no more hostile elected officials.
Can you elaborate on that, because there is still, in my estimation, hostile elected officials in various pockets of the South, and, a matter of fact, all across this nation. And if that is the link that you think doesn't exist, I am here to assure you that it does still exist.
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I'm always of the opinion that we move with and err on the side of caution. In Georgia, for example, there are still 300,000 eligible African-Americans that are unregistered to vote, and time after time and case after case, we have documented hostility. Crosses are still being burned. In some of these areas, voters are being intimated.
So I'm very concerned about doing away with that, and especially in view of the fact that the Federal examiners are used as the trigger to determine whether or not to send these observers in. So how do we replace that trigger? But would you mind elaborating on that linkage?
Mr. WEINBERG. Sure. I'd be happy to.
I agree with you a hundred percent that there are hostile polling place officials throughout the country, and that's one of the reasons that I think the Federal Observer provision is so important.
The link I was talking about is it was a specific link to newly federally registered voters, as it existed between 1965 and 1972 in the South. As the Voting Rights Act was constructed, the observers were to watch specifically to see if those particular voters were being hostilely treated in the polls. And the complaint structure of the Federal examiners was as to complaints as to the mistreatment of those newly enfranchised voters.
The passage of time has taken care of many of those situations. Certainly, some of those same areas are areas where Federal observers still would be assigned.
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But it's not because those African-American voters have just been put on the roles by a Federal examiner. The problem is both broader and deeper than that. And I think Federal observers are necessary for that.
The Federal Examiner function for registering voters, however, has been—it hasn't been used in 30 years. There were a couple of isolated instances of Federal registration in 1982 and 1993, but apart from that, it hasn't been used since the 1970's, in some part because of the success of the Voting Rights Act, but also because of the enactment of new laws that make voter registration a lot easier—the restrictive hours and locations that people were faced with in the '60's. Now, you can register by mail.
So there are improvements in the voter registration process, and it is the voter registration process and the maintenance of the names of those people who were listed in 1965 to 1972 that the examiner provisions of the Voting Rights Act are geared to.
So it has nothing to do with the need for Federal observers to get information on violations in the polling places—discrimination against racial or language group members. That's going on nationwide, and I think the observers are necessary for that.
Mr. SCOTT OF GEORGIA. Mr. Weinberg, why are then—why was the Federal Examiner certification a prerequisite for bringing in the observers in the first place?
Mr. CHABOT. The gentleman's time has expired, but you can answer the question.
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Mr. WEINBERG. All right. The Voting Rights Act after the Selma to Montgomery March brought everything to a head in early 1965. The big focus was on getting people registered to vote. It was—we were talking total disenfranchisement. And so we needed to allow people to get on the voting rolls, and the way that the Voting Rights Act is constructed, if you read the sections 6 and 7, you'll see a very, very intricate pattern of getting people to—into the examiners, to list them, to turn the lists over, and this was a big deal because you were taking a Federal employee, a Federal examiner, and inserting that Federal examiner into what is a State and local process, which is voter registration. The principles of federalism were very, very strong, and this was an extraordinary remedy, the first time ever in this country, that you had these Federal officials coming in and just taking over, just taking over and without a court order. It was just an administrative decision. In order to make that administrative decision have the import that it needed to insert those Federal people into the State function, the Voting Rights Act drafters had the Attorney General personally sign a certification that this was necessary to enforce the 14th amendment and 15th amendment.
And that's how this came to be. The reason they're linked is because the drafters then thought, well, we have all these newly enfranchised voters coming into these terribly hostile polling places, we can't just let them wander in there. But what are we going to do? They say, well, we'll have authorized Federal observers to watch what happens and get the information back to the Attorney General so the Justice Department could take action if it was needed.
Mr. SCOTT OF GEORGIA. Thank you, Mr. Chairman.
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Mr. CHABOT. The gentleman's time has expired. The gentleman from North Carolina, Mr. Watt, is recognized for 5 minutes.
Mr. WATT. Thank you, Mr. Chairman.
Ms. Randa, when observers are sent out—have been sent out in the past, has there a history of anybody complaining about the observers. And, if so, what do those complaints normally consist of and who normally makes them?
Ms. RANDA. Any incidents or issues that come up during a given exercise or observation would be put in the report and it is then passed to Department of Justice, who maintains that and decides whether to take any action on it.
We don't actually maintain that information, historically, so I couldn't speak to the record on that. I know anecdotally, years ago, there were sometimes issues getting access and getting friendly treatment. But I don't believe that's been a problem in recent years.
Mr. WATT. Mr. Weinberg, to some extent, what you are proposing is constructing a new model for sending out observers, which I think probably is a reasonably good idea. The prior model applied that the observers to cover jurisdictions, select jurisdictions for sending observers to; isn't that right?
Mr. WEINBERG. Right. The observers in all the specially covered jurisdictions.
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Mr. WATT. Is there—in the construction of the new model that you are proposing, if you were constructing a new model that didn't apply only to covered jurisdictions—it applied in some triggering fashion that triggered based on complaints or suspicions, how would you articulate what the standard would be? You said at one point I think in your testimony that you thought maybe the observer provisions ought to be applied nationally. But how would you articulate the standards that you would use to trigger it?
Mr. WEINBERG. Yes. My idea would be to keep the Federal observers tied to the Voting Rights Act enforcement. And you would need a finding by the Justice Department that the provisions of the Voting Rights Act are being violated or actions are happening which would constitute violations of the Voting Rights Act. You need that finding before——
Mr. WATT. Are being violated or—I mean it's too late after they've been violated. The election is taking place. So you'd—I mean you'd have to be looking at some imminent danger.
We presumed under the old framework that there was imminent danger because there was a history, and we know that there is some imminent danger going forward, because people are engaging in this—or appear to be engaging in some conduct. But I'm just trying to figure out how you would articulate what the standard would be for the Justice Department to trigger the observer provisions?
Mr. WEINBERG. Yes. The law now talks about circumstances that appear to be reasonably attributed to violations of the 14th and 15th amendments.
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All along, before a certification can be made and even now, before Federal observers are assigned, the Justice Department makes a determination that racial and language minority group members are facing circumstances in the polling place that would violate the Voting Rights Act. We get that information by conducting investigations, conducting interviews in the normal way one would investigate a possible violation of a Federal law.
When you reach that conclusion, you don't have to have proof by a preponderance of the evidence in a structured way that the violations have occurred. What you need is information that indicates that those violations are occurring, and that's basically what happens.
Mr. WATT. So it would be some kind of good faith determination by the Justice Department that a violation of the 14th or 15th amendment has or is about to occur?
Mr. WEINBERG. Right.
Mr. CHABOT. The gentleman's——
Mr. WATT. May I ask unanimous consent for one additional minute——
Mr. CHABOT. Without objection, so ordered.
Mr. WATT. —just to ask one additional question of Mr. Weinberg.
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The reports of the observers—you testified you don't think they ought to be made public, published, unlike when we're observing elections in other countries.
What's done with those reports now?
Mr. WEINBERG. Those reports are used by the Justice Department attorneys to determine whether more legal action is needed, if there's already a lawsuit pending or if there's no lawsuit, whether a legal action is needed. And I should say also that these reports are not always kept from public view. They're—the redacted versions have been released under the Freedom of Information Act. I mean there are ways to see them. Often, they're not all that illuminating since they're——
Mr. WATT. But wouldn't it serve some deterrent effect for—to future voting rights violations to publish the reports of the observers?
Mr. WEINBERG. Yes. I think the deterrent effect is in the legal action by the Justice Department, and I think that's been shown to be very effective.
And since these reports often are also used if a court has certified a county, the report goes to the court. And the reports are used in those instances to determine liability of the defendant or the county and whether the relief has been adequate. So they are in that sense used right away, and I think the deterrent effect is really adequate the way it exists now.
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Mr. CHABOT. The gentleman's time has expired.
The Chair, in light of the fact that this is the ninth hearing in this—on the Voting Rights Act and we have more to come at some future point has been avoiding second rounds. However, the Chair would like to ask one question. And it's my understanding the Ranking Member has an additional question as well, so I would recognize myself for a minute.
And if I could, Ms. Pew, ask you a question, and this is again establishing—one of our principal goals here is to establish a record in light of the fact that this may well be before the Supreme Court some day.
Let me ask you what types of discrimination do minorities sometimes continue to experience in polling places that you're aware of?
Ms. PEW. Well, it's my experience that given the outline and the guideline that was given to us in the consent decree that we've complied with and continue to, even though it is now outdated and we're not made to do that, we continue to do that, and we're not seeing discrimination. We are—we've got a robust program that is reaching out and based on the numbers of the voters that are increasing, we're not seeing the discrimination.
Mr. CHABOT. Yeah. What were the discriminations based upon in the consent decree that you——
Ms. PEW. They were based on denial. They weren't able to read the ballot. They weren't able to understand the ballot. Things were posted in the newspapers by statute, but they couldn't understand them, and that's definitely a disadvantage to someone who is not only maybe language non-speaking, but very language limited as far as even in their cultural, their native language. They don't read Navajo a lot of them.
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And so it is a verbal language. It is important that all of these things be looked at. And I believe that given the outline we have in the consent decree and the things that we're still following that it needs to continue.
Mr. CHABOT. Okay. All right. Thank you very much.
The gentleman from Michigan is recognized for two additional minutes.
Mr. CONYERS. Thank you, Mr. Chairman.
Mr. Weinberg, you've noted that there haven't been any complaints regarding federally listed voters over the last 20 years. But do we need new tools to deal with the sometimes large-scale purges of eligible voters from the voting rolls? How do we keep voters on the voter rolls if we eliminate examiners and observers—as I understand are only at the polls on election day.
Mr. WEINBERG. The Federal Observer provisions don't address all of the violations that could occur with regard to voter registration and voting. It's really—it really has to do with what happens inside the polling places on election day. But the law certainly is adequate as it stands to deal with other discriminatory actions and that would include discriminatory purges of the rolls.
Mr. CONYERS. Who would do it?
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Mr. WEINBERG. The Justice Department could do it.
Mr. CONYERS. But they wouldn't have to be observers?
Mr. WEINBERG. No. No.
Mr. CONYERS. They would be what kind of personnel?
Mr. WEINBERG. It would be investigations in the normal course of business at the Justice Department, investigations by attorneys, by the FBI. That's how it works.
Mr. CONYERS. Okay. Thank you, Mr. Chairman.
Mr. CHABOT. Thank you very much, Mr. Conyers.
That concludes this hearing, and I want to thank the witnesses again for their testimony. It has been very, very helpful.
If there's no further business to come before this Committee, we're adjourned. Thank you.
[Whereupon, at 2:03 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR. A REPRESENTATIVE IN CONGRESS FROM THE STATE IF MICHIGAN AND MEMBER, SUBCOMMITTEE ON THE CONSTITUTION
Despite the optimistic tone struck by our witnesses and members of this Committee, racial and language minorities still face serious obstacles to equal participation in the electoral process. During every election cycle, my staff fields numerous complaints involving election day mischief from around the country. While many simply involve hardball campaign tactics, a troubling number cross the line into questionable race politics that raises the issue of systematic suppression of the minority vote.
During the 2002 election, I referred a complaint to the Department of Justice concerning fliers circulated in African-American areas of Baltimore, Maryland, that were intended to confuse and suppress voter turnout in those communities. The flier misstated the date of election day and implied that payment of overdue parking tickets, moving violations and rents were qualifications for voting. Similarly, During the 2003 Kentucky gubernatorial election, I referred a complaint to the Department concerning reports that 59 precincts with significant African-American populations had been targeted for vote challenges by local campaign officials.
These kind of tactics have been the target of injunctive relief by the Department under provisions of the Voting Rights Act of 1957. For example, in 1990, the Department sued over a so-called ''ballot security'' program in North Carolina, where postcards were mailed to African- American voters that were designed to discourage them from coming to the polls by providing misinformation about the requirements for voters. As a remedy to these allegations of voter intimidation, the parties entered into a consent decree, but the damage was done, with the major African-American candidate losing a close election.(see footnote 1)
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The failure of the 1957 Act to bring prospective relief for interference with the right to vote was the main reason behind the enactment of Sections 3, 6 & 8 for the Voting Rights Act of 1965. These provisions give the federal courts and the Attorney General the authority to monitor the procedures in polling places and at sites where ballots are counted to enforce the voting guarantees of the fourteenth or fifteenth amendments. Unlike, mere attorney coverage or election monitoring by the advocacy community, these provisions give federal monitors the legal authority to enter all polling places, and even the voting booths themselves, to provide the closest scrutiny of the elections process.
To date, a total of 148 counties and parishes in 9 states have been certified by the Attorney General for election monitoring pursuant to Section 6.(see footnote 2) In addition, 19 political subdivisions in 12 states are currently certified for election monitoring by federal court order, pursuant to Section 3.(see footnote 3)
On election day last week, the Department sent federal observers and Justice Department personnel to 16 jurisdictions in seven states to monitor elections, including Hamtramck, Michigan, a jurisdiction partly within my district which had an ugly episode of discrimination against Arab-Americans at th polls in 1999. In 2004, the Department coordinated and sent 1,463 federal observers and 533 Department personnel to monitor 163 elections in 105 jurisdictions in 29 states.
I believe that the monitoring of elections by federal observers is an important aspect of the Voting Rights Act that should be reauthorized. As prior witness testimony has clearly shown, discrimination at the polls remains a problem. Where jurisdictions have a record of discrimination or current threats exist to ballot access, minority voters should not have to wait for federal assistance to come after the fact.
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Monitors play the important role of addressing concerns about racial discrimination and ensuring compliance, so that voters can rely on a fair process now, rather than waiting for litigation later.
Given the fact that the Department has trumpeted its ''voter protection'' programs, I am disappointed that they did not appear today at today's hearing. In numerous press releases, the Department has appeared to express a strong commitment to the monitoring program, especially in the area of Section 203's bilingual election requirements. There are questions, however, about the rising emphasis on attorney coverage, the limited number of certifications under Section 6, and whether there has been a shift in enforcement priorities. While Mr. Weinberg can act as an able proxy for the Department in most areas, only the Department can definitively respond to these questions.
Before closing, I must commend the work of the Office of Personnel Management, whose efforts at recruiting, training, and supervising election monitors is the key to the program's success. Ms. Randa, I look forward to your testimony and hope that you address ways of improving the long-term viability of the monitoring program.
APPENDIX TO THE STATEMENT OF PENNY PEW: ELECTION MATERIALS
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APPENDIX TO THE STATEMENT OF PENNY PEW: PREPARED STATEMENT OF PENNY PEW SUBMITTED TO THE NATIONAL COMMISSION ON THE VOTING RIGHTS ACT
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APPENDIX TO THE STATEMENT OF BARRY WEINBERG: Problems in America's Polling Places: How They Can Be Stopped; Temple Political and Civil Rights Law Review, Spring 2002
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PREPARED STATEMENT OF THE HONORABLE BRADLEY J. SCHLOZMAN, PRINCIPAL DEPUTY ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, DEPARTMENT OF JUSTICE, CONCERNING THE VOTING RIGHTS ACT: SECTIONS 6 AND 8, FEDERAL EXAMINER AND OBSERVER PROGRAMS
Chairman Chabot, Ranking Member Nadler, distinguished members of the Subcommittee:
I am Bradley Schlozman, the Principal Deputy Assistant Attorney General of the Civil Rights Division at the Department of Justice. As I have underscored in previous testimony before this Subcommittee, the President has directed the full power and might of the Justice Department to enforcing the Voting Rights Act and preserving the integrity of our voting process. This Administration looks forward to working with Congress on the reauthorization of this important legislation.
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It is my privilege today to provide you with an overview of the Justice Department's use of sections 6 and 8 of the Voting Rights Act,(see footnote 4) which pertain to Federal examiners and Federal observers. As you know, these provisions, like section 5,(see footnote 5) are slated to expire in August 2007.
FEDERAL EXAMINERS
Let me begin by explaining what ''federal examiners'' are within the meaning of the Voting Rights Act. Federal examiners are essentially officials assigned to a particular political subdivision to whom certain complaints of voting discrimination can be made. Governed by section 6 of the Act, the authority to appoint Federal examiners was first designed as a congressional response to the racially discriminatory voter registration practices that existed throughout the South at the time of the Act's original passage in 1965. Examiners are charged with processing (or ''examining'') applicants for voter registration and making a list of those applicants who meet State eligibility rules; the list is then given to the local county registrar, who is required to put those names on the county's voter registration rolls. Those on the examiner's list are commonly called ''federally registered voters.'' The Voting Rights Act also requires the examiners to be available during each of the jurisdiction's elections, and for two days afterward, to take complaints from any federally registered voter claiming that he/she had not been allowed to vote.
Federal examiners can be appointed in two separate ways. The first route is through section 6's empowerment of the Attorney General to ''certify'' for the appointment of Federal examiners any jurisdiction falling within the coverage of the Voting Rights Act in which there is reason to believe that voters have been denied the right to vote on account of their race or status as a language minority. In particular, the Attorney General must certify that either: (i) he has received complaints in writing from twenty or more residents alleging that they have been denied the right to vote under color of law on account of race or color or because they are a member of a language minority and he believes such complaints to be meritorious; or (ii) in his judgment, the appointment of examiners is necessary to enforce the guarantees of the 14th or 15th Amendments. The second method by which Federal examiners may be appointed is for a Federal court to do so pursuant to section 3(a) as part of an order of equitable relief in a voting rights lawsuit to remedy violations of the 14th or 15th Amendment. Judicial certifications, unlike those of the Attorney General, are not restricted to those political subdivisions covered by section 4 of the Voting Rights Act. Regardless of who makes the formal certification, once the determination is made, the actual selection of the examiner is undertaken by the Director of the Office of Personnel Management (OPM), who then oversees the examiner's activities.
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The Voting Rights Act's ban on literacy tests and other discriminatory practices has mitigated many of the voter registration problems that made examiners so important. As a result, the need for, and role of, Federal examiners has greatly diminished over time. Although there are still 148 counties and parishes in 9 States that the Attorney General has certified for Federal examiners,(see footnote 6) nearly all of these certifications were certified shortly after the Voting Rights Act was passed in 1965 when conditions were radically different from today.(see footnote 7) Moreover, many of the counties/parishes have not been the source of any race-based voting registration complaints for decades.
According to OPM, there have been no new ''federally registered voters'' (i.e., voters registered by Federal examiners) added in any jurisdiction throughout the country since 1983. Nor has the Department of Justice received any complaints about covered jurisdictions refusing to register Federal voters in decades.
In addition to the great advances in minority access to the franchise today as compared to 30–40 years ago, the decline in registration-related complaints is also attributable to the passage of the National Voter Registration Act of 1993 (NVRA), which made voter registration dramatically more accessible.(see footnote 8) Prior to this 1993 Act, there were few Federal standards for voter registration. Through the NVRA, however, Congress established specific, uniform requirements for voter registration and State maintenance of voter registration lists. All of these requirements are applicable across the United States, not just in those jurisdictions certified for Federal examiners or otherwise covered by the Voting Rights Act. The reality today is that the only real importance of the Federal examiner provision from a practical standpoint is its function as a statutory prerequisite to the Attorney General's ability to call upon OPM to assign Federal observers to monitor particular elections in certified jurisdictions.
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FEDERAL OBSERVERS
At any time after a Federal examiner has been appointed to a particular jurisdiction, the Attorney General may request under section 8 that the Director of OPM assign Federal observers to monitor elections in that jurisdiction.(see footnote 9) These observers are Federal employees who are recruited and supervised by OPM. They are authorized by statute to enter polling places and vote-tabulation rooms in order to observe whether eligible voters are being permitted to vote and whether votes casts by eligible voters are being properly counted.
The OPM observers work in conjunction with attorneys from the Justice Department's Civil Rights Division. Department of Justice attorneys assist OPM with the observers' training,
brief the observers on relevant issues prior to the election, and work closely with them on election day. Federal observers are instructed to watch, listen, and take careful notes of everything that happens inside the polling place/vote-tabulation room during an election. They are also trained not to interfere with the election in any way. After the election, Justice Department attorneys debrief the observers, and the observers usually complete written reports on their observations. These reports are sent on to the Civil Rights Division and can be used in court if necessary.
Most Federal observers dispatched to cover elections find no irregularities. Still, problems occur. Over at least the last decade, most of these have related to compliance with the language minority requirements of section 203.(see footnote 10) Where problems are discovered, a variety of actions may be taken depending on the relevant circumstances. On occasion, Justice Department personnel will assess the situation and work with county/parish officials on election day to clarify Federal legal requirements and immediately resolve the identified problem. Other times, the Department will send a letter to the jurisdiction following the election in which we identify certain incidents or practices that should be addressed or improved in the future (e.g., removal of certain poll workers, additional training for election-day officials, etc.). Department attorneys likewise may recommend further investigation. If no Federal issues are identified, the matter may be referred to State authorities. If necessary, the Department will commence a civil action (or contempt motion if applicable) to enforce the protections of the Voting Rights Act.
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Notwithstanding the general overall compliance with the Voting Rights Act, the Department of Justice has taken full advantage of the Federal observer provisions to help avoid slippage or complacency by covered jurisdictions. In 2004, for example, the Civil Rights Division worked with OPM to send 1,463 observers to cover 55 elections in 30 jurisdictions in 10 different States. Meanwhile, already in 2005, Federal observers have been dispatched to 21 elections in 17 jurisdictions in 10 different States.
In areas of the country where Federal observers cannot be sent, the Civil Rights Division will send it own staff lawyers to monitor elections if it has received complaints or has uncovered credible evidence of possible violations of the Voting Rights Act. In fact, the great bulk of our recent enforcement cases since, say, 1993, have involved jurisdictions (e.g., Massachusetts, California, New York, New Jersey, Florida, Washington, and Pennsylvania) where there is no statutory authority to send Federal observers. We have expended substantial resources in this endeavor. For example, in 2004, the Department of Justice sent 533 departmental personnel to monitor 108 elections in 80 jurisdictions in 27 different States. So far in 2005, the Department has sent 186 personnel to cover 24 elections in 21 jurisdictions in 9 different States. Those monitors helped account for the record-setting work we have done in enforcing the Voting Rights Act in recent years.
As I have said before to this Subcommittee, the Civil Rights Division has made the vigorous enforcement of voting rights a primary objective, and we have been very successful in doing so. Our election monitoring and observer coverage is just one small part of that effort. I thank the committee for the opportunity to submit this statement.
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INSERTED INTO THE RECORD BY CONGRESSMAN WATT DURING THE HEARING: LETTER FROM WILLIAM JENKINS, DIRECTOR, HOMELAND SECURITY AND JUSTICE ISSUES, GOVERNMENT ACCOUNTABILITY OFFICE, TO THE HONORABLES JOSEPH LIEBERMAN, HENRY WAZMAN, AND JOHN CONYERS, JR. REGARDING THE DEPARTMENT OF JUSTICE'S ACTIVITIES TO ADDRESS PAST ELECTION-RELATED VOTING IRREGULARITIES
[Note: Image(s) not available in this format. See PDF version of this file.]
(Footnote 1 return)
Consent Decree in United States of America v. North Carolina Republican Party, No. 91–161-CIV-5-F (Feb. 27, 1992).
(Footnote 2 return)
Alabama (22 counties), Arizona (3), Georgia (29), Louisiana (12), Mississippi (50), New York (3), North Carolina (1), South Carolina (11) and Texas (17).
(Footnote 3 return)
California (6), Illinois (1), Louisiana (1), Massachusetts (1), Michigan (1), New Jersey (1), New Mexico (2), New York (3), Pennsylvania (1), South Dakota (1), Texas (1), and Washington (1).
(Footnote 4 return)
42 U.S.C. 1973d, 1973f.
(Footnote 5 return)
42 U.S.C. 1973c.
(Footnote 6 return)
There are also 19 political subdivisions in 12 States currently certified by court order. With two exceptions, all of these certifications pertain to language-minority issues. An additional 14 jurisdictions in eight States previously were certified for Federal examiners by Federal courts under section 3(a), but the designations have since expired.
(Footnote 7 return)
The complete list of counties certified by the Attorney General, along with dates of certification, can be found on the website of the Department of Justice's Voting Section. See http://www.usdoj.gov/crt/voting/examine/activ—exam.htm.
(Footnote 8 return)
42 U.S.C. 1973gg et seq.
(Footnote 9 return)
42 U.S.C.1973f.
(Footnote 10 return)
42 U.S.C. 1973aa–1a.