SPEAKERS CONTENTS INSERTS
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2001
[H.A.S.C. No. 107–15]
DEPARTMENT OF DEFENSE VOTING ASSISTANCE AND MILITARY ABSENTEE BALLOT ISSUES
HEARING
BEFORE THE
MILITARY PERSONNEL SUBCOMMITTEE
OF THE
COMMITTEE ON ARMED SERVICES
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
HEARING HELD
MAY 9, 2001
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For sale by the Superintendent of Documents, U.S. Government Printing Office
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MILITARY PERSONNEL SUBCOMMITTEE
JOHN M. McHUGH, New York, Chairman
MAC THORNBERRY, Texas
LINDSEY GRAHAM, South Carolina
JIM RYUN, Kansas
HEATHER WILSON, New Mexico
ROB SIMMONS, Connecticut
MARK STEVEN KIRK, Illinois
JO ANN DAVIS, Virginia
ED SCHROCK, Virginia
W. TODD AKIN, Missouri
MARTY MEEHAN, Massachusetts
LORETTA SANCHEZ, California
CYNTHIA A. McKINNEY, Georgia
ELLEN O. TAUSCHER, California
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ROBERT E. ANDREWS, New Jersey
BARON P. HILL, Indiana
SUSAN A. DAVIS, California
JAMES R. LANGEVIN, Rhode Island
John D. Chapla, Professional Staff Member
Thomas E. Hawley, Professional Staff Member
Michael R. Higgins, Professional Staff Member
Edward P. Wyatt, Professional Staff Member
Debra S. Wada, Professional Staff Member
Nancy M. Warner, Staff Assistant
(ii)
C O N T E N T S
CHRONOLOGICAL LIST OF HEARINGS
2001
HEARING:
Wednesday, May 9, 2001, Voting Rights
APPENDIX:
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Wednesday, May 9, 2001
WEDNESDAY, MAY 9, 2001
VOTING RIGHTS
STATEMENTS PRESENTED BY MEMBERS OF CONGRESS
McHugh, Hon. John, a Representative from New York, Chairman, Military Personnel Subcommittee
Meehan, Hon. Marty, a Representative from Massachusetts, Ranking Member, Military Personnel Subcommittee
WITNESSES
Brunelli, Pauline K., Director, Federal Voting Assistance Program
Cooke, David, Director Administration and Management, Office of the Secretary of Defense
DuCom, Capt. Eugene M., Deputy Director, Military Postal Service Agency
Hodgkiss, Anita S., Director of the Voting Rights Project, Lawyers' Committee for Civil Rights Under Law
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Manhan, Bob, Assistant Director, National Legislative Service, Veterans of Foreign Wars of the United States
Partridge, Col. Charles C., U.S. Army (Ret.), Legislative Counsel, National Association for Uniformed Services
Seavey, Mark C., Assistant Director, Legislative Division, The American Legion
Walker, Hon. David M., Comptroller General of the United States
Wright, Capt. Samuel F., JAGC, U.S. Naval Reserve, Co-Chairman, Uniformed Services Voting Rights Committee, Reserve Officers Association of the United States
APPENDIX
PREPARED STATEMENTS:
Cooke, David O.
Hodgkiss, Anita
Manhan, Bob
McHugh, Hon. John
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Meehan, Hon. Marty
Partridge, Col. Charles C.
Schneider, Richard C., Director of State/Veterans Affairs, Non Commissioned Officers Association of the United States of America
Seavey, Mark C.
Staton, James D., Chief Master Sergeant, U.S. Air Force (Ret.), Executive Director, Air Force Sergeants Association
Stroup, Lt. Gen. Theodore G., Jr., U.S. Army (Ret.), Association of the United States Army
Walker, David M.
Wright, Capt. Samuel F.
DOCUMENTS SUBMITTED FOR THE RECORD:
[The Documents submitted for the Record can be viewed in the hard copy.]
Document submitted by Thomas W. Fina, Executive Director, Democrats Abroad, Democrats Abroad Overseas Voting Reform Proposals
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QUESTIONS AND ANSWERS SUBMITTED FOR THE RECORD:
[The Questions and Answers submitted for the Record can be viewed in the hard copy.]
Mr. McHugh
Mr. Kirk
VOTING RIGHTS
House of Representatives,
Committee on Armed Services,
Military Personnel Subcommittee,
Washington, DC, Wednesday, May 9, 2001.
The subcommittee met, pursuant to call, at 2:43 p.m., in room 2118, Rayburn House Office Building, Hon. John M. McHugh (chairman of the subcommittee) presiding.
OPENING STATEMENT OF HON. JOHN M. MCHUGH, A REPRESENTATIVE FROM NEW YORK, CHAIRMAN, MILITARY PERSONNEL SUBCOMMITTEE
Mr. MCHUGH. I call the meeting to order, and I apologize for getting started a bit late, but we had some things we had to take care of.
Today the subcommittee turns its attention to an issue of great importance to the men and women serving in uniform: simply, yet critically, their right to vote.
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The narrow margin of victory during the presidential election of 2000 catapulted military voters into the headlines, much to their surprise, and I think it is fair to say, to their dissatisfaction, but it happened nevertheless. So as the Nation watched the counting of the final ballots in Florida, it became apparent that many of those ballots belonged to the 176,000 active military members who are registered to vote in that state.
The importance of the absentee vote in a close election was not lost on military members and their families around the world. Members of Congress soon received numerous complaints from servicemembers who believed that they had been denied their proper opportunity to vote. Those complaints included: lack of responsiveness from state election officials, complaints of poor mail delivery and pick up, inability to get information and registration and voting materials.
Many of those voters were very, very angry. They thought they had been disenfranchised without good reason and, simply, were cheated out of their vote.
This is not a new problem. In 1952, President Truman, based on military voting assistance issues raised by service men fighting in Korea, urged the Congress to, ''not shrink from accepting its responsibility and exercising its constitutional powers to give soldiers their right to vote where the states fail to do so.''
I believe that we must do better to protect the voting rights of our military members. It is clear from the legislation that has been introduced in this Congress that a number of members share that view, including a number of members in this very subcommittee.
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From a practical standpoint, much of the existing law that establishes the voting rights of military personnel falls outside the jurisdiction of the Committee on Armed Services and this subcommittee. And that is an important distinction that we have to work hard to keep in mind.
We do, however, have jurisdiction over the Department of Defense (DOD), voter assistance program. And I am fully committed to ensuring that we aggressively seek the oversight of that program.
Furthermore, as Chairman Ney of the House Administration Committee and other committee chairmen move to examine and possibly amend existing law to facilitate military voting, this subcommittee will work to assist those efforts. The goal must be to make certain that there are no unnecessary barriers to military voting within the jurisdiction of the Committee on Armed Services.
The objective today is to gain a better understanding about what needs to be done to enhance the opportunity for military members to exercise their right to vote.
I am pleased today, in perhaps his final official act as the ranking member of the subcommittee, to yield to my good friend from Massachusetts, Mr. Meehan, who serves as a prime example of our loss, being the gain of the Research and Development (R&D), Subcommittee where he will move. But we are thrilled, as always, that he is here. And he will be missed, but we wish him success in those future endeavors and deeply appreciate his being here today.
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Marty.
STATMENT OF HON. MARTIN T. MEEHAN, A REPRESENTATIVE FROM MASSACHUSETTS, RANKING MEMBER, MILITARY PERSONNEL SUBCOMMITTEE
Mr. MEEHAN. Thank you, Mr. Chairman. This is going to be an emotional meeting for me, being my last one. But I had an R&D Subcommittee meeting this morning that went very well, so I am looking forward to the R&D Subcommittee as well. But as always, Mr. Chairman, I thank you.
And I want to welcome our witnesses, Comptroller General David Walker, Mr. David Cooke, the Mayor of the Pentagon, Mr. Lieberman and the representatives of the service organizations. I appreciate all of you being here to discuss this very critical issue to the men and women in uniform: voting rights for our military personnel.
I also want to say that I know that Chairman Ney is working on a broader bill to make sure that people across this country are not disenfranchised. And I want to say that I hope that this Congress will deal with all of the problems in the presidential elections. I hope that there will never be a time again where we have to look at butterfly ballots, look at the dates of what service men and women had stamped or not stamped.
I think the 2000 presidential election has really renewed attention on a topic that has plagued servicemembers since the Civil War: How do we facilitate the rights of our armed forces to vote in elections? How do we facilitate the rights of men and women in Florida and elsewhere to participate and to vote?
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Some of the same basic concerns that were faced by servicemembers in 1861, unfortunately, still exist today. And while progress has been made to improve the electoral process, our military personnel still face obstacles in voting overseas.
The Uniformed and Overseas Citizens Absentee Voting Act (Voting Act), passed in 1986, was enacted to facilitate absentee voting by United States citizens, both military and civilian, who were overseas.
Over a decade ago, the Congress recognized that American citizens overseas were being disenfranchised from the electoral process. Factors leading to their disenfranchisement included the lack of information available to overseas voters, voter error, legal and administrative obstacles, and failure to provide adequate ballot transit time.
At first glance, the year 2000 does not look much different than 1986. Inadequate ballot transit times, lack of information available to overseas voters, legal and administrative obstacles and voter errors continue. While significant progress has been made, efforts to improve the system and eliminate barriers to participation must continue to ensure that servicemembers and their families, federal civilians and contractors overseas, are provided an adequate opportunity to participate in our democratic process of government.
As the spotlight fades from last year's election, a monumental question still remains: How do we protect the voting rights of all Americans, particularly those overseas, without trampling the rights of the states to administer elections?
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I look forward to hearing the testimony from our witnesses on how to protect the voting rights of our military personnel, their families and our defense-related civilians, but especially, how we can provide the integrity of the election process.
The right to vote is guaranteed by the Constitution. We have an obligation to assure that all Americans are afforded the opportunity to vote. We have a number of pieces of legislation that are before this Congress that are very critical to move and to move as soon as possible. We should not wait to see that the rights of all Americans, both here at home and abroad, that they are able to exercise those rights. So Mr. Chairman, I thank you, and I hope that we can address these issues as quickly as possible.
Mr. MCHUGH. Well, I thank the gentleman, as I said, for his leadership, his participation here today, taking on double duty and his very eloquent and informative opening statement.
I have had the chance to talk to a few, not all, of the members of the subcommittee. The ones I have spoken with have deferred their option to make an opening statement, so we could go to the panels. But to those who I have not chatted with, if there is a member who chooses to make an opening statement, I would be happy to yield to them.
Ms. MCKINNEY. I choose to make an opening statement, Mr. Chairman.
Mr. MCHUGH. Ms. McKinney, happy to yield to you.
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Ms. MCKINNEY. Thank you, Mr. Chairman, this is a very important hearing.
Attempts to address unfairness in military voting began during the Eisenhower administration. But Congress still has work to do to solve the problem. It is unfortunate that it has taken the lost opportunities of so many voters to cause notice of this problem, but, hopefully, this hearing will begin to address and correct the remaining obstacles that military voters face.
Any time the importance of the vote is diminished, we have a problem. We have a problem because, in our republic, there is nothing more precious than the right to vote.
On Election Day, there is no black or white. There is no rich or poor. There is just no difference between uniformed or civilian. We all are equal as we cast our votes.
However, if, in the process of attempting to cast our votes, selected populations are subjected to police intervention, if votes are purged due to a lack of postmark, if voters have to endure long and unruly lines, unprepared staff, underequipped voting places, buildings too small to accommodate the voting crowds, broken machines or voter lists that are rigged, as the private company ChoicePoint now readily admits happened in Florida, if votes are somehow lost in the mail, then we have a serious problem and the quality of our democracy is open to ridicule by others.
If, after one has withstood tremendous indignity just to cast a vote, that vote is then thrown out, then the value of our democracy equals that thrown-away ballot. As the Florida debacle unfolded for all the world to see, America became a laughing stock. Autocrats and dictators around the world offered election advisers. And worse, at least one offered to pay the Carter Center to send monitors to monitor our own elections.
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Adding fuel to the fire, President Carter recently stated that the U.S. election process is so bad it would not even pass muster to qualify for Carter Center observers.
What happened in Florida, particularly to voters of color, is criminal. And the NAACP has rightly filed a lawsuit against the state of Florida for its transgression. A lawsuit has been filed in Georgia, and the records suggest that what happened in Tennessee and Georgia was at least as bad as what happened in Florida. And in some cases, the situations in Georgia and Tennessee were even worse.
We must not lose our focus. It is clear that, in Florida, there was purposeful manipulation of the votes that were cast and an effort to impede the ability of voters to actually cast their vote.
Nothing short of state-sanctioned voter fraud took place in Florida. Minorities were victimized directly by the circus that ensued.
However, the spillover affected everyone who wanted to vote in Florida and everyone who actually voted in Florida, and the manipulation cost all of us the imprimatur of a free, fair and transparent election for the highest office in our land.
We can do better, and we must, or else the loss of confidence in the election system of our country will be reflected, not in the suites, but in the streets, because Americans will not tolerate the clock being turned back on fundamental voting rights won through bloodshed and through struggle.
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In addition, the loss of prestige around the world, that we can talk the talk, but we cannot walk the walk on free and fair and transparent elections, is incalculable.
Thank you, Mr. Chairman.
Mr. MCHUGH. Thank the gentlelady from Georgia.
Before we do begin, one last piece of housekeeping business. Without objection, I do have three statements that have been submitted to be entered into the record: one from the Association of the United States Army, another from the Non Commissioned Officers Association of the United States of America, and the third, the Air Force Sergeants Association.
Without objection, so ordered.
[The prepared statements can be found in the Appendix.]
Mr. MCHUGH. To our witnesses in our panels, of which we have three today, the first panel is a panel of one. We felt he could handle that assignment quite well.
And we are very pleased to welcome Mr. David Walker, who is the Comptroller General of the United States. And we are honored that, Mr. Comptroller, you could be here with us, and to share your insights and the progress of what you have been finding out with respect to the military aspect of this portion of the election laws.
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So with that, we do have your entire statement. I have read it. I am sure other members have as well. We would ask without adhering to 5-minute rules, that if it is convenient for you you could summarize as you see fit. So, again, our thanks for being here, and our attention is yours.
STATEMENT OF DAVID M. WALKER, COMPTROLLER GENERAL OF THE UNITED STATES; ACCOMPANIED BY JANET ST. LAURENT, ASSISTANT DIRECTOR OF DEFENSE CAPABILITIES AND MANAGEMENT TEAM, GENERAL ACCOUNTING OFFICE
Mr. WALKER. Thank you, Mr. Chairman and members of the committee. I will stay under the 5-minute rule, I believe. I will seek to summarize my statement that you have already inserted in the record. Let me acknowledge for the record that I have a number of very capable General Accounting Office (GAO), staff who were on the front line doing a lot of the work that supports my statement with me here today, and I am very appreciative of all their efforts, and I am sure that each of you are, as well.
I am pleased to be here today to discuss the status and results to date of our ongoing work for this committee on military and overseas citizens absentee voting. This effort, as you know, is part of a broad body of work we are doing to help the Congress assess the need for change in procedures and equipment in administering federal elections.
As you know, the 2000 presidential election brought to light a number of concerns about a number of issues, including the reliability of voting machines, training of polling place workers, the extent to which local jurisdictions accepted votes from members of the military and civilians living overseas and a variety of other factors.
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As requested by this committee, we are reviewing the programs and policies in place to assist military and overseas citizens in voting. Our work includes site visits and interviews at state and country government offices, military installations in the United States and overseas, and U.S. embassies and consulates around the world.
We plan to summarize the results of this work in a report to both the House and Senate Armed Services Committees in September of 2001. Obviously, the final report will include a more detailed description of our work along with our conclusions and any appropriate recommendations.
But today what I would like to do, Mr. Chairman and members of the committee, is to focus on the status of our work to date and on three primary issues: first, the extent and quality of voter assistance for uniformed and overseas citizens that was afforded in the last election; second, challenges that these voters had and that were posed to them by various state and local requirements associated with voting; and last, but not least, the extent and the reasons for disqualification of ballots cast by these voters.
First, the extent and quality of federal voter assistance for military personnel and overseas citizens varied considerably for the November 2000 general election. To its credit, the Department of Defense has developed some useful information tools, but many overseas personnel we spoke to were unaware of these tools. Therefore, if they are not aware of it, they cannot use it, and they are not much of a help.
Moreover, the military services did not always comply with Department of Defense requirements to appoint and train voting assistance officers. These individuals are the ones who are assigned the primary role and responsibility under the Voting Act that this committee has jurisdiction over. They did not always brief military personnel on how to go about voting or maintain sufficient supplies of voting materials.
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According to military voters in discussion groups we held at 36 installations around the world, lack of emphasis by commanders and limited oversight by service inspector generals and installation commanders appeared to be the chief reasons why some military installations did not fully comply with DOD guidance on how voting assistance programs should be carried out.
Finally, the State Department provided citizens abroad with a variety of useful information, according to overseas citizens and various overseas citizen groups, as well as federal employees that we spoke to, although clearly more outreach by the State Department could be helpful.
Many military and overseas voters we spoke to expressed concerns about several things: first, varied state and local requirements for absentee voting. I have three boards that will briefly illustrate this. They are also in my full statement under figures 1, 2 and 3, respectively.
The first one illustrates the multi-step process that military and overseas citizens have to go through in order to be able to effectively cast their ballot. The second one demonstrates variances between the registration deadlines for overseas voters imposed by the various states.
And the third one demonstrates variances between various state requirements as to when the ballots must actually be received by the various states. And as you can see, there are 15 states who allow for ballots to be received after the election date. It is these states where you have the potential issue of the postmark being of relevance. Obviously, to the extent that the ballot has to be received by the election date or prior to the election date, the postmark is really not relevant.
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And all of those states, by the way, that allow receipt after the election date do not require postmarks, but some do.
The second issue is a lack of feedback from local jurisdictions about the status of their applications for registration or whether or not their ballots, indeed, were received and counted.
And finally, the short timeframe provided by many states and local jurisdictions for sending and returning ballots, which is especially complicated when you are overseas with the different means by which you may or may not have available to you to transmit either your registration application or your ballot.
Many states are examining the need for changes to their election processes, including requirements for absentee voting, as a result of issues raised during the 2000 election. Continued efforts by DOD officials to work with the states to simplify their procedures, modify their election schedules or allow more use of technology, such as faxing and Internet, to speed up some portions of the voting process, would help to eliminate these challenges.
However, security and privacy issues pose challenges to widespread use of the Internet for casting votes, at least in the near term, according to certain DOD and state officials. Moreover, state and local officials told us that they must balance ease of voting with protecting the integrity of the voting process.
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And as you know, Mr. Chairman, we have a number of other engagements underway right now, one of which is specifically dealing with the issue of whether and to what extent there could be expanded use of the Internet and other forms of technology to help in this regard, and we expect to issue a report on that later this year.
Information on the precise number of military and overseas absentee votes that local jurisdictions disqualified nationwide in the November 2000 election and the reasons for disqualification, quite frankly, is not available. Many local officials that we spoke to told us that they did not track data on these specific groups of absentee voters and could not readily provide the data.
While the available data on absentee voting is spotty, the preliminary results of our survey of 179 local election jurisdictions showed that most common reasons for ballot disqualification were: first, the ballot arrived after the established deadline; and second, the envelope or form accompanying the ballot was not completed properly.
In the two states we visited where extended deadlines could make postmarking an issue, which were Florida and Texas respectively, data on ballots disqualified due to postmarking was incomplete. However, our limited review of military postmarking procedures after the election did not indicate that missing postmarks represented a systemic, widespread problem.
Mr. Chairman, I could go on and on, but I think, since you have my full statement, I would respectfully suggest that we move to questions and answers. But before we do, I just want to remind you that we have done a lot of the work, but we have not completed all of our work. We expect to complete it and issue a final report in September of 2001, at which time we will make any appropriate recommendations and have appropriate conclusions.
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In addition, we are working on several other elections-related reports this year, and I think it is important and commendable that the Congress is trying to get the facts, to separate between fact and fiction in this area, so that it can make informed judgments about, not only what should be done administratively, but secondly, what, if anything, should be done legislatively, not only in this area, but other election areas.
In that regard, I might add, that as you know, our general counsel has issued a legal opinion to the Congress which makes it very clear that, under the elections clause of the United States Constitution, that Congress has widespread authority with regard to congressional elections.
From a practical standpoint, having that authority for congressional elections has a ripple effect on other elections, since obviously people are going to one place to vote at the same time using the same technology. The Congress does not have as much authority with regard to presidential elections, although the courts have generally given great deference in that regard.
So it is very clear with regard to congressional elections. The courts have given deference with regard to presidential. But from a practical standpoint, there is a ripple effect, and whatever you decide to do for congressional, obviously, can have a domino impact with regard to other elections. And, obviously, being sensitive to the interests and needs and costs associated with this that would be imposed on state and local governments, obviously, is something I am sure the Congress will be aware of and sensitive to.
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Thank you, Mr. Chairman.
[The prepared statement of Mr. Walker can be found in the Appendix.]
Mr. MCHUGH. Thank you, Mr. Walker. You raised a number of important points, but with respect to your ongoing work, the subcommittee is cognizant of the fact that not just your office, but the DOD Inspector General (IG), and others are, if not midstream, certainly not at the end of this examination, and full reports will not be available for some time. And that is something of a limiting constraint.
Nevertheless, we felt that the subject matter of this hearing was important enough that we provide the opportunity to educate ourselves as to the status of some of this work, and also to make what I hope is a statement of some impact that we are concerned and we are following it and intend to be active participants in that.
I should note for the information of those assembled here today, with respect to ongoing work, we had looked forward to the Inspector General of the Department of Defense to be a part of the second panel, Mr. Robert Lieberman. Because of the status of their report, in its uncompleted state, they have respectfully requested to withdraw from the hearing. We have regretfully acquiesced to that request.
To the conspiracy theorists, I want to tell you that Mr. Lieberman's last name has nothing to do with his reason to appear. We checked, there is no apparent relationship there. [Laughter.]
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But, clearly, we are very interested in that work and look forward to their report.
Mr. MEEHAN. Mr. Chairman, can I strike my welcome of Mr. Lieberman then from the record?
Mr. MCHUGH. It is so ordered. [Laughter.]
Mr. Walker, you talked about on the military side of the overseas voter, a finding that you made that apparently there was either a lack of the tools that are included in the assistance program, or supposedly included, or a lack of information and awareness of the tools. You also spoke with respect to the Department of State's effort, my impression was you felt they did a better job. Is that a correct impression?
Mr. WALKER. That is a fair statement, Mr. Chairman.
Mr. MCHUGH. I am curious, using the Federal Voter Assistance Program, how much of the percentage, roughly, would these problems be solved if the tools that are outlined in it were indeed available, that there was sufficient oversight to ensure that they were working properly as their design intends and that the awareness level was up to some meaningful percentage? Is that a big part of it or are problems much more broadly based than that?
Mr. WALKER. I think a significant improvement could be made if we made a special effort to fully follow what current guidelines are by DOD.
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For example, there are supposed to be voting officers for each of the major locations and for each of the major platforms, if you will, to the extent you are dealing with a ship or you are dealing with a submarine, if you will. To the extent that there is more planning up front, to the extent that there is training provided to the appropriate personnel, to the extent that they have an adequate amount of supplies, for example, the default standardized ballot that can be available if they do not receive the state ballot in time.
So I think there are a number of things that can be done. I think the technology can be leveraged more. I think that clearly more that can and should be done from the standpoint of educating people, not only military personnel, but overseas citizens as to the availability of the number of tools that DOD has put together that are helpful to those that are aware of them.
But I do think that there is one area that you cannot deal with necessarily administratively, and that is the differences between the various states on the due dates. The due date for registering, the due date for submitting your ballot and the various requirements that you have as to whether or not you are required to have a postmark or not to have a postmark, et cetera. There is some progress that clearly can be made, and DOD is trying to work with the states to try to reduce those differences.
But that is one area where I think we found that there is a, you know, considerable amount of frustration and confusion. And ultimately, Congress may want to decide whether or not anything of a legislative approach might be appropriate here.
Mr. MCHUGH. I appreciate that. Have you or will you have the opportunity to assess the reason that the military side of the overseas assistance program did not work—lack of devotion, lack of resources? Is that going to be part of your final work?
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Mr. WALKER. We will have some observations in that regard. In some cases, we have a situation where there was not an appointment of a responsible official, a voting assistance official. That, obviously, is a problem from the standpoint of command, the appropriate command who has responsibility for doing that.
In some circumstances, you have a situation where people are multi-tasking, and they have a lot to do, and this is just one of their many responsibilities. And therefore, it is a time problem, or they may not have, you know, adequate training in order to be able to do it. But we will have some additional observations in our final report on that regard.
Mr. MCHUGH. Terrific. As you went to the various states and tried to ascertain some patterns here, did you come away with an impression that whatever failures happened, on a broad basis, were not the result of schemes or politics, but really were systemic failures in a variety of areas? Whether it was the postmark, I mean, just a legitimate—unacceptable—but under the current system, a pretty legitimate part of the confusing things that we put these people through.
Mr. WALKER. I am not aware that we found any evidential matter of any intent to handle these ballots in any inappropriate manner. I mean, the fact of the matter is, in fact, in some cases, we found an example of where people wanted to make a special effort to try to make sure that our military personnel and overseas people were given appropriate consideration.
The problem is that, you know, this is very decentralized in the administration. You can have significant variances county-by-county as well as state-by-state. The rules vary widely. That can be frustrating for military personnel who are working next to each other who are all a part of one organization, but nonetheless, when they are trying to vote, even in a federal election, they are subject to significantly different rules and timeframes, et cetera, which can be particularly frustrating when you are deployed far away or on a sub or a ship.
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Mr. MCHUGH. Just one final thing before I yield to my colleagues. It may be shocking to a casual observer of Congress, but not everything we all say is agreed upon by everyone else. I do want to say that I agree with what Ms. McKinney said with respect to any time the system is brought into question it erodes the confidence of all Americans in the electoral process. And that, as she said so correctly, is unacceptable.
I am curious, anecdotally, as you talk to military members, I assume you ran into those who actually voted and presumably their votes were counted, but they did not become part of the problem, but probably reacted to it.
Did you get a sense amongst the general military population that they are just unsure under any circumstances if they can have confidence in the system? I mean, is that a systemic problem that we have seen evolve out of this election?
Mr. WALKER. Well, obviously, I think Congresswoman McKinney articulately pointed out that this election was visible around the world, and I think it shook the confidence of a number of individuals.
And the fact of the matter is, one of the frustrations that members of the military did express is, they do not know whether their vote counted or not. Because they know whether they sent it, they do not necessarily know whether or not it was received; and if it was received, they do not necessarily know whether or not it was counted. On the other hand, it is fair to say that other absentee voters might end up being in the same circumstances. And I do think that we have to keep that in mind as well.
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Mr. MCHUGH. Well, thank you. Be happy to yield to Mr. Meehan.
Mr. WALKER. I might say, Mr. Chairman, that while Florida happened to be under the microscope, but for the grace of God, it could have been any number of other states. Because, you know, these are issues, obviously, that exist beyond Florida.
Mr. MCHUGH. Exactly. Every election district (ED), in the country, in every state, I think, could have had the same problems. That does not legitimize it; it suggests that we have a much bigger problem than one state, as big as that one state was.
Mr. Meehan.
Mr. MEEHAN. Thank you, Mr. Chairman.
Comptroller Walker, you focused much of your attention on the shortcomings in the Federal Voter Assistance Program. In your view, what should be done so that we can more effectively educate voter assistance officers to make sure that they can actually help service men and women when it comes to voting? And in addition to that, what resources can be provided to the individual servicemember to educate him or her on how to go about voting?
Mr. WALKER. Mr. Meehan, we will end up having specific recommendations when we get done with the work, but I do think that you can expect that we will have some recommendations in this area.
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The most fundamental thing is, you have to end up having to appoint the person who is responsible and accountable for discharging these responsibilities. In many cases, that did not happen. If that does not happen, nothing else matters. You have to end up making sure that those individuals are provided the appropriate training. DOD has some training that is intended to be provided those individuals, and we need to make sure that that happens. We need to make sure that an adequate supply of things like the default standard voting, you know, form is available at all these different facilities.
In many cases, I think, we need to take special steps to make sure that people have an opportunity to vote early, you know, especially when you are dealing with, you know, platforms like submarines and ships that have various basing considerations. And so I think there are a number of things that we are going to be coming forward with, but those are a few examples right now, I think, of what can be done within the context of current law.
Mr. MEEHAN. There was a great deal of attention, obviously, focused on Florida. And as you correctly said, the reality is, if the Electoral College had worked out a little differently there are a number of other states that would have undergone the same kind of scrutiny and the same kinds of questions undoubtedly would have been raised.
But on the issue of military absentee ballots that were either missing a postmark or incorrectly postmarked, as you know, an overseas ballot can arrive up to 10 days after Election Day if the ballot is postmarked by Election Day. As your auditors are collecting data on this study, have they found any widespread evidence of missing postmarks on submitted overseas absentee ballots?
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Mr. WALKER. No. In fact, the Department of Defense, as I recall, reviewed thousands of potential pieces of mail for the issue of whether or not there was a systemic problem with missing postmarks, and they did not find a widespread problem. We did not, in our observation as well, find a widespread problem.
However, as you know, there can be difficulties nonetheless, and that is, in most cases the way the state laws work is, as you properly pointed out, you have to end up postmarking it by the date of the election, and it has to be postmarked, in some cases, overseas.
Well, sometimes what ends up happening is, it may not get postmarked until it arrives in the United States. And so therefore, A, you do not know whether or not it was mailed from overseas; and B, even if it was mailed overseas by the date of the election, it may not get postmarked until after the date of the election, because it may not get postmarked until it arrives in the United States.
And so, you know, this is just another example of when, on one hand, you are trying to provide additional flexibility for individuals to be able to receive their ballots after Election Day, this is just one of the examples of the complications that you will get.
All the more reason why it would be great if we could end up trying to work to do more planning to try to get it such that people would have an opportunity to have more time to vote earlier and to try to make sure that these ballots, you know, arrive by Election Day, such that we do not have some of these issues to deal with.
Mr. MEEHAN. Well, given the success of the Internet voting pilot program that the DOD conducted during the 2000 election, what would be your recommendations in terms of potentially expanding the program in either 2002 or 2004? And what sort of technical hurdles would have to be overcome to expand this pilot program?
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Mr. WALKER. If you do not mind, I am going to have Janet St. Laurent, who worked on the engagement, be able to respond to that, because I have not had direct exposure to that.
Ms. ST. LAURENT. DOD has not yet issued its report on its Internet voting project. It is our understanding that that will be coming out shortly. And the project that they did in the year 2000 was relatively small, involved a very small number of voters.
Mr. MEEHAN. How many?
Ms. ST. LAURENT. I think about 85 voters actually cast their ballots in the project. We would like to see the report that they put out and then evaluate that.
But we did, when we were in Florida, talk with the state officials there who participated in this project, about their view. They are very supportive of continuing efforts to evaluate the technology and try to work through some of the potential obstacles.
Mr. MEEHAN. Thank you. Thank you, Mr. Chairman.
Mr. MCHUGH. I thank the gentleman. The gentleman from Texas, Mr. Thornberry.
Mr. THORNBERRY. Thank you, Mr. Chairman. I would just mention at the onset that, in addition to all of the things with Florida that we all know, this committee has additional reasons to further investigate the issue because, in the Department of Defense authorization bill for every year since fiscal year 1998, the Senate has included some provisions related to military voting, which we have not chosen to include in the conference report because of some concerns by some folks on the House side. But a lot of what the Senate has focused on in prior years has been the whole issue of the right of military folks to vote in federal and state and local elections, which does seem to me to be an additional important issue beyond the procedural things that you have talked about so far, Mr. Walker.
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And let me ask you this, you mentioned that there has been a legal opinion on the authority of Congress to provide regulations for congressional elections. To your knowledge, is there some additional responsibility on Congress to guarantee the rights of military voters? I mean, because the military is serving the federal government, do we not have some additional responsibility to see that they are able to vote? We are interested in what happens to everybody in the states, but they are here at our request, and do not we have extra responsibility there?
Mr. WALKER. Well, first, from a legal standpoint, let me disclose that I am not a lawyer. However, I am familiar with our legal opinion.
And in that regard, basically what we said is that under the elections clause of the Constitution, the Congress has widespread authority to be able to legislate or dictate a range of issues with regard to congressional elections. To the extent that you believe that there are facts and circumstances that are unique to the military and/or overseas personnel that can be demonstrated, then you may seek to try to do something special with regard to that category.
At the same point in time, I think one would have to be careful to make sure that there was a clear and compelling reason to do so, because also in the Constitution we have the equal protection clause and, as was mentioned before, the issue of, ultimately, we want all citizens to be able to have the right to vote.
But clearly to the extent that you have people that are overseas, to the extent that you have people deployed and not have the same access to voting and things of that nature, those could provide for reasons why you might want to consider going further.
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Mr. THORNBERRY. The gentlelady from California, Ms. Tauscher, and I have introduced legislation, H.R. 1377, with others of our colleagues, and we are drawing a fairly substantial number of cosponsors, that tries to set out some uniform procedures and to put into federal law the right of military folks to vote in federal, state and local elections, which, as you may know, by the way, has been a subject of a court contest in Texas, where they were not able to vote for a time, at least in local elections, and so it is of particular interest and concern.
But you have mentioned in your surveys so far that you do not see, for example, a widespread problem with postmarks disqualifying ballots. But you have also said that we do not have really good numbers about how many ballots are disqualified in various jurisdictions, and so we cannot really quantify the nature of the problem.
And, getting back to your conversations earlier about the integrity of the process, even if we cannot quantify, don't you think that still there is a—even if you cannot say it is a widespread—problem, if a few ballots are thrown out, number one, it can matter in a close election, but, second, it does get back to this integrity of the process and whether people are confident that their vote counts, particularly those people serving in the military.
Mr. WALKER. Well, what we found in our work to date is that local election officials have asserted that even if a ballot comes after the due date, even if it is not going to make a difference in the election, that, as long as it meets state requirements, postmarking, et cetera, as applicable, that they count it, even though it does not make a difference.
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Now the problem is, however, we have found, as I testified, that there is a lack of adequate documentation that exists in recording which votes counted, which ones were rejected and why. That is an area where you may or may not want to consider requiring some type of documentation, at least in conjunction with a congressional election, once you get all the facts.
We have seen evidence that it can make a difference. And it is not just with the larger presidential election; it is also congressional elections. I might add that one of your colleagues from Florida had, I think, the last race that was decided, was decided by a few votes, and some of the same issues as the presidential election. It was Congressman Shaw from Ft. Lauderdale. And so these issues exist in congressional elections as well as presidential elections.
Mr. MCHUGH. The gentleman's time has expired. The gentlelady from Georgia.
Ms. MCKINNEY. Thank you, Mr. Chairman. I note the testimony of Anita Hodgkiss, who warns us of privileging one set of voters over another and particularly of privileging military voters over the rest of us. Let me just say that if one group of voters is privileged over the rest of us, including those of us whose predecessors fought and died for the Voting Rights Act, there will be problems in America.
And so I would also issue a warning that, while we demand to have election reform, and we want to make sure that every American has access to the ballot, that no American receive privileged access to the ballot.
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Now, Mr. Walker, you have testified that there are things that we will be able to do, and you will make recommendations in September as to what those things are that can be done in terms of assessing the problem and recommending ways in which we can deal with that problem. Could you tell me if there will be a distinction in terms of what we can do smarter that will not cost us very much money, and then those things that will require hard dollars? That is the first question.
Second question—and I only have two questions—is probably directed to our chairman, because as you are fully aware, we had negotiations going on between the majority and the minority on this issue of election reform, and those negotiations broke down over the constitution of the committee. This is a very important hearing, and my question is, does the fact that we are having this hearing reflect a commitment on the part of the majority to include election reform in the legislative process?
I will yield to you now and then to Mr. Walker, so he can answer the question.
Mr. MCHUGH. I would be happy to respond to the lady as best I can. I am flattered that she thinks I write the agenda for the majority.
Ms. MCKINNEY. Well, you do it a little bit more than I do. [Laughter.]
Mr. MCHUGH. That may be debatable. The only thing I can speak about, other than endorsing the importance of the broad-based issue that the gentlelady has brought up here today, is that, as I mentioned in my opening comment, we want to do two things. We wanted, first of all, to try to obtain from Mr. Walker and others an update as to the status of this portion of the issue. And the other is to make a statement by this subcommittee, because this is where we all sit, as to our concern and our intent to become effectively and actively involved.
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I also mention, we have as a subcommittee and a full committee very narrowly defined jurisdiction over only the piece involving the Federal Voter Assistance Program. To the extent this subcommittee can use the pulpit of whatever voice we have to have a broadening of the outcome, I not just would allow that if that were my prerogative, but I encourage it. And that is why I think the gentlelady was here today to make a statement, because she felt it was important.
Ms. MCKINNEY. Thank you, Mr. Chairman, and I join with you.
Mr. MCHUGH. If I run for speaker or majority leader, we will be in touch.
Ms. MCKINNEY. Okay.
Mr. MCHUGH. Mr. Walker, you have the first part of that question. I hope you do better than I did.
Mr. WALKER. I expect that we will have findings on an array of issues. I expect that we will have recommendations to the extent that it deals with operational matters. Typically what we do is, to the extent that it deals with current law and how you can do things more economically, efficiently or effectively, then we are pretty aggressive about making recommendations.
To the extent that it deals with potential changes in law, then what typically we will do is have what we call matters for congressional consideration, and we will say, ''Here is a problem we see. Here are some options. Here are some pros and cons.'' And clearly one element of that would be the cost aspects, I mean, to what extent is it something that could have a significant amount of cost associated with it, as well.
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So I expect that what will end up happening, Congresswoman McKinney, is that we will have recommendations dealing with operational matters and that we will have potentially some matters for congressional consideration and could work with the Congress on some options, pros and cons. But, ultimately, those have to be made by elected officials, and I do not know that it is appropriate for us to be able to say, ''In our opinion, the answer is X,'' because you are elected and we are not.
Mr. MCHUGH. Mrs. Tauscher.
Ms. TAUSCHER. Thank you, Mr. Chairman. Mr. Walker, how are you?
Mr. WALKER. Well, thank you.
Ms. TAUSCHER. Good. I want to pick up on something my colleague, Mr. Thornberry was talking about. In my district in California, where we have a lot of people that vote by mail, in the Saturday afternoon at the Safeway, Saturday night at the cocktail party, a lot of my constituents who voted by mail, who are very, very smart people, basically remarked that their concern is that, while everyone in American should be concerned about whether votes were counted, how do you know your vote was counted? How does any individual know their vote was counted?
And I think that that is a fundamental question that leads to the credibility of the entire system. And I think that many of us believe that our men and women overseas in the military and the military generally have been denied their right to vote and have had a very difficult time in voting, and that it has been difficult to create a symmetry between counties where a lot of this work is done and states and certainly the federal government and DOD and others.
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But ultimately, this is about restoring credibility to the overall system and making people believe that they actually can have their vote counted. That is why I am in favor of moving toward an electronic-based voting where you actually could get a receipt and you actually would know, very much like an ATM or something, that your vote was actually counted.
And Mr. Thornberry and I, as you know, with other colleagues have this bill, the Military Overseas Empowerment Act, called MOVE, which we know is getting a lot of attention from our colleagues, and we hope will eventually go to the floor.
But this whole issue of electronic voting, I think that the federal government is the mechanism by which I think we can do a lot of these pilot programs where we have the opportunity to get real data to create and certify the data.
I am disappointed that the test that was done was for 85 people. With all due respect, what the heck is that about—85 people? I mean, my precinct is bigger than 85 people at home. Was there a failure to take it seriously enough to have a sample that anybody could actually respect? Was it started late? I mean, it is astounding to me that we actually did something that has no credibility to it because only 85 people participated.
Mr. WALKER. Well, this was a DOD pilot. Janet, do you have anything else?
Ms. TAUSCHER. We know who to blame, Mr. Walker.
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Mr. WALKER. No, there was a pilot and—
Ms. ST. LAURENT. I think again, while we have been briefed by DOD officials on the scope of this effort, we are still waiting to see the reports that they will be putting out shortly that will describe the extent to which it was successful. I know that at one point, there was about 300 voters that they were working with, but for a variety of reasons, that got worked down eventually to about 85 folks who cast votes.
Ms. TAUSCHER. But what a missed opportunity. I mean, I cannot imagine, even if someone said to me, ''Boy, let me tell you, Congresswoman Tauscher, what a great success this was,'' that I would actually care. I mean, 85 votes, 300 votes, the sample is so infinitesimally small that it does not seem that it is credible even if it was successful.
Ms. ST. LAURENT. One other point, we said it involved 12 states, just so you have that—
Ms. TAUSCHER. Eight-five voters in 12 states? That makes it even worse.
Mr. WALKER. Let me suggest that, while obviously you cannot place a great deal of reliance on anything that just involves 85 people, I think it is important to note that one of the major pieces of work that we are doing right now with regard to elections, is a bipartisan leadership request for the Senate. And that involves, among other things, us reviewing various forms of voting technology. And many of these technologies are already used by various state and local localities.
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And so, that I think will be very informative with regard to some of the issues that you are talking about. Because we will talk about the various different technologies that are available. We will talk about the pros and cons. We will talk about the costs associated therewith, and I think that will be something that clearly you could use as a basis to draw some judgments from.
Ms. TAUSCHER. Mr. Chairman, the only request I have of you is that we look at any potential pilots that may be going forward for the 2002 elections, and we check for the kind of efficacy issues, sample size and things like that, so that we are not spinning our wheel one more time and go through another cycle to find out that we had 110 voters from 26 states, and we actually have something that we cannot use.
Mr. MCHUGH. That is a point well-taken, and obviously we are going to be looking at as many aspects of this as we can. And hopefully by 2002, we will have more answers than not, where we may be to a point where the next pilot program is unnecessary. I mean, that is an ideal objective, but we might as well start at that point.
Ms. TAUSCHER. Okay. May I make a suggestion if we could perhaps talk to the people at DOD and find out if there is any plan for any 2002 pilots, and before they start to move too far down a path, that we stop and make sure that they are of the right size and of the right credibility that they are actually worth our time?
Mr. MCHUGH. We are aware that they are, in fact, doing some formulation work on that. So we will try to get some more details.
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Ms. TAUSCHER. Thank you.
Mr. WALKER. Mr. Chairman, may I also provide one little bit of information for the record. In one of the questions that you asked before, and that is, just to state for the record that there are federal statutes that require that voting materials be maintained for 22 months.
However, what the states have not done, and localities have not done regularly is to be able to record why they may have rejected a particular ballot. So therefore the reasons why they may have rejected it is not something they have recorded, and that is the issue, why we cannot tell you with certainty as to what percentages were rejected for X reason versus Y reason.
Mr. MCHUGH. I was struck by your testimony on that, to the extent I was surprised that you were not able to ascertain that because of the very federal requirement that you spoke about. So although I would tend to share Mr. Thornberry's view that if you have a circumstance like postmarks, it is probably important enough that we try to do something about it. Even if it were just a handful, it is too many, as I think Ms. McKinney and others would agree, if we can possibly remedy that.
So thank you. Mrs. Sanchez.
Ms. SANCHEZ. Thank you, Mr. Chairman. I, too, want to reiterate something that Mrs. Tauscher said about the sample size of these types of pilot programs. I mean, by all statistical methods, it does not really give us an idea of what is really happening out there, when we take a look at 22 different states, and only have 85 sample sizes. But at the same time, I really do believe that this is a big problem.
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And as you know, having had a close election and being the queen of the recounts and everything else, after 17 months of, in particular, looking at absentee ballots and military absentee ballots, I think that there is a real need to sit down and think through a process by which we can make the system better for people to believe in its credibility.
I know that in my own home state, after having gone through many recounts, we really have this down to a science. If Florida had come to us, we would have told them what kind of a chad counts and whether a pregnant one does or does not. I mean, we already have it in statute and law, actually, as to how many pieces of paper stay on in order for it to count or not, because we have had so many.
But one of the things that we do need to worry about is making sure that a person can come and find in a place whether their vote counted or not. And I know that in California, for example, in the area where I live, we have that. You can come and you can look up your name and you can see whether your vote counted in the election or not. And because that is directly tied to the number of votes that are cast, we actually reconcile that. In fact, those numbers must be reconciled before official numbers are posted.
I know this because in this past election, as you recall, we were sitting late here, doing our budget process—appropriations process—and many of the Californians ordered absentee ballots. Mine arrived here at the same time I was going home for elections, which made it necessary for me to fill out a provisional ballot. I received a ballot actually, but it was over here. And when I went to cast, of course, with all the cameras and everybody else, I cast a provisional ballot, which was actually a good thing because it taught people on TV that there is an opportunity to cast a ballot in some way if you show up to the polling place.
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But when I went to look at the preliminary draft of who had voted and whose vote had counted in the election, mine had not counted. The reason was it was a provisional ballot, and because my margin was so wide in that election, they did not bother to go through the provisional ballots to figure out whether some of them should be counted or not. To which point I told them that it would look pretty silly for them to have on my official record that I had never voted in an election where I was on camera having voted.
So it becomes a very important issue for people to know that their vote is being counted. And I think, in particular, because our military do serve overseas, and because of mail, and because they may be on submarines and because who knows when they come into port, we should take a look at how we do electronic filing, how we get information to them, what type of a deadline we have for that.
It should be something that we look at in this committee and try to remedy, because their votes should count. And I think they should count all the way down to a local, special election, if that is the way that they would like to their vote and have it counted.
So I would just say that I hope that we will do more studies of this and that it does not stop here. And that when we do more study, we do it with a more credible sample size, so that we know what is going on in our military with respect to their votes. Thank you, Mr. Chairman.
Mr. MCHUGH. Thank you, gentlelady. And obviously, as I have stated, we are here to begin, not end, the process. And I appreciate her participation and her support. Ms. Wilson.
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Mrs. WILSON. Thank you, Mr. Chairman. My colleague from Georgia has left, but I think she is right that we need to make sure that everybody has access to the ballots with respect to where polling places are, where the location of early voting is, how complex it is in order to qualify to vote.
But I also think that those who are active duty military have special problems and special challenges that far exceed the reality of living in a rural area or whether you have to go across town to a different shopping mall to vote. If it were that easy, we would not have the problems that we do have, frankly.
And I guess, Mr. Walker, I would like to ask you, considering, if you look at the additional legal requirements and some of the ideas that we are talking about to protect the voting rights of military members, in your view, are we at any risk of violating the constitutional rights of other voters by other sort of special treatment?
Mr. WALKER. Well, first, I am not a lawyer.
Mrs. WILSON. Thank goodness for that.
Mr. WALKER. And second, I, obviously, cannot speak for the Supreme Court. But what I can tell you is, I think you touched on a key point. And that is, to the extent that you are going to distinguish between military voters or overseas voters, at least based upon the legal opinion that our general counsel has issued, I think you need to focus on what are the special circumstances under which you would cause that distinction.
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Merely because they are in the military does not necessarily mean they are overseas or they are deployed or whatever else. And so I think you would have to end up looking at the individual facts and circumstances as a basis to determine whether and to what extent you feel comfortable that they are merited without potentially violating the equal protections clause.
And I think, as was mentioned before by Ms. Sanchez, that the system has integrity in order for it to have credibility in order for the public to have confidence in it. And that is not just with regard to military and overseas, it is overall, if you will.
Mrs. WILSON. I noticed in the report—I guess it is your testimony here—the results of your discussions with folks on active duty in the Federal Voting Assistance Program and that there were several problems with that program and the training of voting assistance officers, the availability of materials, the fact that DOD had a policy that everybody is supposed to have a briefing on their rights to vote and how to vote, and 60 percent of the people that you talked to did not have that briefing during an election year, that many of the voting assistance officers—you know, let's face it, it is an additional duty. They had no idea of what they were supposed to do either.
But there is nothing in the report that gets to the why. What kind of insights can you share as to why this program is not working?
Mr. WALKER. The two primary reasons that we found were that it has not been, universally, a high priority by all the commanders; and second, there has not been ongoing or periodic oversight by the Inspector General and other authorities to make sure that people are doing what they should do in this area.
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And you properly point out that in many cases these voting assistance officers, it is one of many, many different things that they have to do, you know, in addition to their normal duties.
Mrs. WILSON. One of the other things you mentioned in your testimony is the complexity of the instructions. It was hard enough for me to figure out how to do my own absentee ballot when I get it from my county clerk. But for voters overseas, I understand that there is, what, 350 pages of instruction that you have to figure out, which state and locality you are supposed to go to, and what their procedures are and so forth.
Is there any way under our Constitution, recognizing that congressional powers are limited, where we can simplify that so people can understand it and can vote?
Mr. WALKER. Well, first, I believe you are referring to the manual that the voting assistance officers or whatever should have available to them, which is not something that each individual who needs to vote needs to read. That is just something that is available as a reference manual, to the extent that an individual servicemember would come and say, ''I do not understand this,'' and it is a tool that is available. So the instructions on the individual ballot, the state ballots, would not be nearly as voluminous as that.
Now, one of the things that there is available, which there is a lot of conceptual merit for, is there is a standard ballot that people can use under current law if they do not receive the state ballot in time. One of the things that you may want to consider is whether or not that should be expanded.
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Now, part of the difficulty with that is, is that while it would be very easy for somebody to decide who do they want to vote for President or, you know, and Vice President, because that is pretty publicized, who they might want to vote for the Senate or as a Member of Congress, it makes it problematic when you are talking about downstream. Because the fact of the matter is, is that, you know, it would be extremely difficult to try to be able to have some type of standard ballot to the extent that you are talking about downstream.
At the same point in time, your clear authority in the Constitution under the elections clause seems to be at the congressional level; you have significant deference at the presidential. But once you go downstream, that is a different issue. I mean, your authority is not there to be able to go downstream.
Mrs. WILSON. Thank you, Mr. Chairman.
Mr. MCHUGH. Thank the gentlelady.
Mr. Walker, we could, I am sure, continue round after round, but we do have two other panels with multiple presenters on them. So with your cooperation we may submit to you some questions for the record in writing, and if you could respond to those, we would be very appreciative. And we thank you so much for being here today and we are looking forward to the continuation of your analysis.
[The information referred to can be found in the Appendix.]
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Mr. WALKER. Thank you, Mr. Chairman. I also want to thank my staff, as well. Take care.
Mr. MCHUGH. And you should. I am sure they do a great job. Thank you.
The second panel will be comprised of Mr. David O. Cooke, who is Director of the Administration and Management Office of the Secretary of Defense, who, as Mr. Meehan said, is affectionately known as the ''Mayor of the Pentagon.'' And I would be remiss if I did not note as well that he is from Buffalo, New York, a little bit south of where I am, but great place where a great hockey team that almost pulled it out, we hope. They have one game left that they can do that.
Please, Mr. Cooke, join us at the front table. Also on the second panel, Ms. Pauline Brunelli, who is Director of the Federal Voting Assistance Program. Also Captain Eugene DuCom, who is Deputy Director of the Military Postal Service Agency.
STATEMENT OF DAVID O. COOKE, DIRECTOR OF ADMINISTRATION AND MANAGEMENT, OFFICE OF THE SECRETARY OF DEFENSE; ACCOMPANIED BY PAULINE BRUNELLI, DIRECTOR, FEDERAL VOTING ASSISTANCE PROGRAM; AND CAPTAIN EUGENE DUCOM, DEPUTY DIRECTOR, MILITARY POSTAL SERVICE AGENCY.
Mr. COOKE. Thank you, Mr. Chairman.
And, by the way, I also hold a master's degree from the State University of New York (SUNY), Albany.
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Mr. MCHUGH. So do I.
Mr. COOKE. Yes, so I noticed.
Mr. MCHUGH. Well, I am glad to see all of us made it.
Mr. COOKE. Many decades ahead of you.
Mr. MCHUGH. Well, welcome. I understand that, Mr. Cooke, you have the sole opening statement. We have entered that in its entirety in the record, and we would be happy to yield to you now for your verbal presentation, as you see fit.
Mr. COOKE. Thank you very much, and I will certainly try to be brief. Let me thank you for the opportunity, on behalf of Defense, to tell you what we are doing for absentee voting. Let me observe on the onset, as I told the Comptroller General, who I have the greatest admiration for, that not unexpectedly, we do not accept his conclusions to date as the law of the Medes and the Persians. We do have some differences of opinion.
But be that as it may, since 1998, the Secretary of Defense has been designated by the President as the executive agent to implement what I call the Overseas Absentee Voting Act, which applies not only to uniformed personnel, but also to our civilians overseas. And the civilians are getting to be, as we draw down our armed forces, a larger proportion of the people we try to work with overseas.
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Each year, including the year 2000 before us, the Federal Voting Assistance Program, headed by the young lady on my right, developed a voting assistance plan. The Secretary signs the voting assistance plan and sends it out to the secretaries of military departments, the Chairman of the Joint Chiefs of Staff, the heads of executive branch defense agencies, and they, in turn, develop implementing plans to implement the voting assistance plan.
In the military departments, each military department has a designated senior officer, a flag or general officer, to be the senior person representing the services, and voting action officers, and they go down all the way to the unit level, to oversee and support, assist in the voting action.
Quite obviously, in any organization as big as the Department of Defense, there are going to be differences and variances as to how well individual action officers, how much time they have to implement, but the machinery is in place.
Now, I would like to emphasize, there is no such thing as a military ballot. There are the provisions of the Voting Act which apply to all citizens overseas: military members, their spouses, and also civilians, some of whom are perhaps working for industry overseas, a significant number of them are now retired.
We deal with overseas commands, the U.S. embassies, private industry and even associations of both major parties who are organized overseas. So we do not try to distinguish and say, ''You are military. We treat you a little better than or a little more often than civilians overseas.'' But we will recognize, of course, that some of the unique demands placed on our men and women in uniform, as to where they serve and how often they move, make it important that we try to serve them with at least the same level of information, material, we serve to all overseas citizens.
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Actually, the voting assistance activity has three basic missions. The first is to inform potential voters of their rights and give them information as to how to cast a ballot, how to apply for absentee ballots and the rest.
The second is to actually foster voter participation: ''You know how to do it, now get out and vote.'' We certainly do not order anyone to vote, but we want to foster the importance each citizen has to vote.
And, finally, we want to ensure the integrity of the election process. That is a requirement no different from any other voting official, be it in upstate New York, Texas, or in the United States generally. And we are committed to that mission. It is not an easy challenge, because actually Ms. Brunelli deals with about 55 different voting laws and regulations, one for each state, one for each territory and the like.
She publishes a biennial comprehensive voting assistance guide, which is a large book, but it encompasses the detailed regulations for each of the 55 jurisdictions. And it is designed as a compendium of assistance to the voting assistance officers.
We also publish a ''how to vote absentee'' pamphlet. We will furnish copies of both these for the record, of course. And we try to answer in that pamphlet the most typical questions asked about absentee voting. We publish and distribute an election calendar. And these and other documents are kept up to date on our Web site. It is a good Web site. It is available worldwide.
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[The information referred to can be found in the Appendix.]
Mr. COOKE. From January to September in the last presidential election, we conducted over 62 on-site training workshops and orientations. These were orientations for military voting assistance officers and for civilians. They instructed the voting assistants about their responsibilities and the resources available to them in assisting military members and their voting-age dependents, for example, on absentee voting.
We also provide any number of other assist publications and instruction materials are available on our Web site. They are distributed through normal mail channels. They include access toll-free to a switch network in 59 counties. We encourage all of them to contact our voting assistance office for questions and information as they need it.
We also maintain and operate a voting information center. It is an automated telephone system which contains election information. About 30 days before an election, the voting assistance office invites candidates for the office of U.S. President, U.S. Senate, U.S. Representatives and state governors to leave a campaign message in the system. For example, Mr. Chairman, you could leave a message on our—if you were running for office, running for reelection, of course—that your voters could dial in and hear the message. And it is becoming increasingly used.
I just hit a few highlights of the rather broad, rich smorgasbord of assistance that we offer to voting assistance officers, to voters interested in voting absentee ballots, whether they be military or civilian.
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There are many more I could touch on, and one that has already come up during the hearing is our pilot project for voting via the Internet.
Ms. Brunelli, will you describe the pilot project just a little please?
Ms. BRUNELLI. Yes. Mr. Chairman, the pilot project was a proof of concept. Our primary concern was the security and the integrity of that system and the voted ballot. It involved a registration process and a voting process. It was groundbreaking in its objectives and in its accomplishments.
We were engaged in a collaborative effort with four states and five sites. And in order for someone to participate in our pilot project, they had to be legal voting residents of those pilot project sites. It was the whole state of South Carolina, two counties in Florida, one county in Texas and one county in Utah. It was remote registration and voting from home, voting from the workplace.
While the group was small, in order to manage it in a short period of time and to ensure that the security and the integrity of the process was maintained, we had to keep it small numbers. And, indeed, our report shows that we were very successful with the security of that. I would say that the voters were from all over the world. They were from 11 countries and 21 states and territories.
Our voters were also on the move. We had one voter who, while he was expecting his—ordinarily a paper ballot would arrive at his mailing address, where to send the ballot, ''Send it here''—he was sent on temporary duty (TDY), overseas. He took a digital certificate, because we use digital certificates in the Department of Defense public key infrastructure to maintain the security of the process. He took that with him overseas on his mission and voted. He would not have gotten his paper ballot at home because he was away from that address. So that is just a sample of our successes with this project.
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Mr. MCHUGH. Mr. Cooke, do you have any further testimony to add?
Mr. COOKE. We will, of course, look and really study very carefully the GAO's recommendations when they come in, and indeed our own IG. We are particularly interested in the size of the sample used. It is my understanding GAO used a sample of about 1,400 people in total.
We have run our own sample. We do this each time, to see what our people think of participation, what percentage participated in the election by one way or other. And our size of sample is about 20,000 worldwide. And although our complete survey results have not been finished, our voting participation indicates that the uniformed services' participation by absentee ballot is markedly higher than the participation of the U.S. public generally in Texas, in Georgia, in upstate New York or wherever.
So we are getting the word out, I think, compared to the efforts made by parties, election officials in the United States. We are getting a greater evidence of participation and awareness than you get from the general public.
So, as I said, although we will read and study and I have the utmost respect for the Comptroller General, whether he be Dave Walker or one of his predecessors, we are going to look quite closely at the basis on which the generalizations that we heard this afternoon come. Some of them seemed a little extreme to me, frankly. And I have no desire to get into an argument at all with GAO; they have done a wonderful job.
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But this completes my hasty run through our presentation, and I will be very pleased to respond to any questions.
[The prepared statement of Mr. Cooke can be found in the Appendix.]
Mr. MCHUGH. Thank you very much. Well, let me pursue a little bit further the opening comment you made and the closing remarks, which were both based upon—what I believe I heard you say was that you disagree with what the Comptroller General said.
Mr. COOKE. Yes, I disagree with the extent and the sweeping conclusion based on the random sample of 1,400. And I am not sure how random it was. I do not know quite how they went to a base, how they identified those who talked.
Mr. MCHUGH. I do not either, but the point I wanted to ascertain for the record, the objection that you state is not based as yet on any specific review or consultation with the Comptroller General. It is just based on his testimony which you heard here today.
Mr. COOKE. I would characterize it as a reservation, rather than an objection.
Mr. MCHUGH. Fair enough. I want to make sure that I and the subcommittee understood if consultation or review of the report in any way had occurred yet, and it has not.
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Mr. COOKE. No.
Mr. MCHUGH. But it will, is the important point.
Mr. COOKE. Undoubtedly.
Mr. MCHUGH. You raised, both in your oral testimony and in the materials you submitted for the record, the issue about participation of those people utilizing the voter assistance program is higher. I believe the figure you would normally quote is 75 percent.
Could you tell me what that 75 percent represents? Does it represent actual votes cast, or does it represent people who have somehow contacted the assistance program or have formally procured a ballot? What, 75 percent is what?
Mr. COOKE. Pauline.
Ms. BRUNELLI. If I could answer that, Mr. Chairman, the 75 percent is an aggregation, a total voter participation for voting absentee, voting in person and attempting to vote. We do have citizens who contact us who ask us, ''How do you vote in person?'' because we do have people who return to their residence to do that; we do have people, military, stationed in certain states, that is their legal voting residence, and we provide that advice and assistance as well. And that is the compilation of all of those.
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I would say that even the general public's voting participation rate is 51 percent. This is the figure that we received from the Federal Election Commission.
Mr. MCHUGH. I am not sure they are using the same definition and basis of 51 percent that you are for 75. And I am not accusing anyone of anything, I am just trying to understand the reality behind the figures.
What I heard you say, and please correct me if I misunderstood, the 75 percent is people that you know voted or filed absentee.
Ms. BRUNELLI. The 75 percent is voted absentee, voted in person or attempted to vote. And—
Mr. MCHUGH. Well, the attempted to vote is one, and I do not mean to interrupt you.
Ms. BRUNELLI. And that is a very small percentage, Mr. Chairman. And I can break those out individually.
Mr. MCHUGH. That was going to be my next question. But just for my own information, how do you define ''attempted to vote''?
Ms. BRUNELLI. These are individuals who have filled out their requests for a ballot or the registration form, have sent it in to the local election officials. So they have made applications for a ballot. And somewhere along in that process, it was not successful.
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So they have used our materials, our voting outreach has reached them, but perhaps it was lost in the mail, perhaps they changed—a permanent change of station—and they did not submit a change of address, the ballot was sent to their old address, maybe they were on leave when the ballot arrived, maybe they were on TDY, those types of things. There is a variety of things.
Mr. COOKE. Mr. Chairman, may I add that this methodology has been used by the office for some time. So its value, as far as I am concerned, is what has happened to the figures over the years using the same methodology, not so much on civilian, but the general public participation and what it has done to our figures, and I think 2000 was the highest we have scored in that, using all three.
Mr. MCHUGH. Well, congratulations.
I would like to see a breakout of that. I am particularly interested in the ''attempted to vote.'' I do not believe the FEC uses that statistic, but—
Ms. BRUNELLI. Pardon me. I can provide this to you right now.
Voted absentee, the total: 48.24 percent; voted in person: 15.81; attempted to vote: 10.75.
Mr. MCHUGH. What is your process by which you follow up and find out if someone attempted to vote and yet did not, or someone actually did vote by absentee? You actually go to every person and ask them after the fact, or how do you make that categorization?
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Ms. BRUNELLI. The Uniform and Overseas Citizens Absentee Voting Act requires us to conduct a statistical analysis or survey of—
Mr. MCHUGH. So you project it. You do not contact everybody.
Ms. BRUNELLI. No, we do not. We engage in a survey after every presidential election year, we time the survey to arrive during the voting week, the general election, so it is fresh in people's minds, and we ask them about their voting experiences. And then we are required to provide that report to the President and the Congress before the end of the following year.
Mr. MCHUGH. What is the response rate on the survey? Do you know off the top of your head?
Ms. BRUNELLI. I do not. I do not have that available.
Mr. MCHUGH. Would you please provide that.
Ms. BRUNELLI. I would be glad to provide that, take that for the record.
[The information referred to can be found in the Appendix.]
Mr. MCHUGH. As a follow-up—I will yield, although I have some other questions I hope we have time to get to—you are aware, I am sure, that the GAO—and I understand you do not want to get in an argument, neither do I, but I am placing it out there—GAO believes that your survey is statistically insignificant, they have problems with it. I have not seen the details yet. Have you had an opportunity to look at that finding at all?
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Ms. BRUNELLI. I have not looked at—
Mr. MCHUGH. Well, Mr. Cooke?
Mr. COOKE. No.
Mr. MCHUGH. Well, that might be something that you are going to want to do.
Mr. COOKE. Our argument is a little strong discussion, please.
Mr. MCHUGH. Okay. Well, we will have to look at that as well.
Well, I am going to yield to Mr. Meehan, and we will see how much time we consume by the time it gets back around. So thank you. Marty.
Mr. MEEHAN. Thank you, Mr. Chairman.
Mr. Chairman, I would ask to submit for the record the report of the Democrats Abroad overseas voting reform proposal.
Mr. MCHUGH. Without objection, so ordered.
[The information referred to can be found in the Appendix]
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Mr. MEEHAN. Director Cooke, getting back to this GAO study, they seem to think that people in the office were not trained or motivated to assist servicemembers. In your view, what can be done to ensure that the voting offices know what they are doing and have the resources to assist the men and women who want to vote?
Mr. COOKE. I have detailed some of the material that is available, including the voting assistance guide, the training opportunities. I do not think GAO said that all the voting assistance officers were untrained, but they simply found, not unexpectedly, a considerable variation in the voting assistance officers, depending on a lot of qualifications: their experience, their conflict with other duties, because the voting assistance officer function undoubtedly in any unit is an additional duty for somebody who is burdened.
So I think there is a wide variance. I think we will certainly share the GAO's findings and opinions with ours and counsel and direct the senior voting officers' needs to the services to emphasize more.
And then, of course, our young officers and many of the voting assistance officers are senior non-coms and they do a great job, generally, a conscientious job, but they move. So it is very rare down in a unit that we would have the same voting assistance officer building up an experience factor over a period of 2 or more years.
Mr. MEEHAN. So then how is a particular officer chosen to be a voting assistance officer? In other words, did the officers volunteer for the position? What does a voting assistance officer do or not do?
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Mr. COOKE. Obviously, all our young representatives are volunteers one way or the other, but I think that, actually, they are picked by their commanding officer, the unit commander.
Mr. MEEHAN. They are picked, and they volunteered.
Mr. COOKE. I would doubt that many had volunteered, but I do not know.
Mr. MEEHAN. So they may not want to do the job to begin with.
Mr. COOKE. Some of them undoubtedly do not want to do the job.
Mr. MEEHAN. Which may lead to why the GAO would question whether they were motivated.
Mr. COOKE. Yes, and, of course, it depends on which one of the 1,400 in this wide world GAO picked to ask that question.
Mr. MEEHAN. Right. Part of the Federal Voting Assistance Program's mission is, basically, to lobby state governments to implement changes in the election law and regulations to facilitate overseas absentee voting.
What additional resources and incentives could Congress provide the Federal Voting Assistance Program to facilitate with those efforts with the state governments?
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Mr. COOKE. I neglected, although in my printed statement you will find that we do a lot of work with state legislatures, with the Secretaries of State Association, who most of the time have the electoral responsibilities in a given state, with election clerks.
Pauline, do you want to comment? You are the one who goes out on those trips.
Ms. BRUNELLI. Yes, we do speak before legislative bodies. We do present, if you will, our initiatives. We have 11 initiatives that we send forward to the states before their legislative session meets. We set forth what we would like to see in state election laws to facilitate voting for our overseas citizens and for our military around the world. And indeed, we do provide written or oral testimony as proponents of this faciliatory state legislation.
Mr. COOKE. Let me say, we have had some success over the years, and we play it straight down the middle, not supporting one party or another, so it would certainly hurt us if we were observed to be partisan in that regard, particularly when the legislatures may be divided in any event. But we go right down the middle, and we have had good working relationships with the legislatures and the associations of state officials responsible for elections.
Mr. MEEHAN. Thank you, Mr. Chairman.
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Mr. MCHUGH. I thank the gentleman. I would add, just for the record, I have personally participated in your posting of campaign statements, is what they are, and I have found they very helpful and useful, particularly for my military folks from Fort Drum, and they would comment on it to me. So I think that is great.
Mr. Thornberry.
Mr. THORNBERRY. Thank you, Mr. Chairman. Captain, I would just invite you to comment on the postmark issue. You were here and heard the GAO testimony that they did not find a widespread, systemic problem. Obviously, most people in the country think that there are issues with ballots and postmarks, based on the Florida election. What is your perspective?
Captain DUCOM. I do not have any real numbers as to what the real extent of the problem was with the ballots throughout the country that were not postmarked, as discussed earlier. Our regulations are clear, our instructions are clear that every ballot should be postmarked. I do not think there are any reasons why a ballot should not be postmarked, other than human error or mechanical error, in that some are postmarked mechanically.
So in that light, I think that we can certainly ensure in the future that all ballots get postmarked. I think that if there were any misunderstandings in the field, we have addressed those misunderstandings, and everyone understands that all mail gets postmarked and ballots get particular attention.
Mr. THORNBERRY. Postmarked when?
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Captain DUCOM. All mail is postmarked at the post office that is the receiving post office, wherever that may be.
Mr. THORNBERRY. So if it is out on a submarine somewhere and somebody wants to hand their ballot to someone, is there a person with postal responsibilities out on the submarine, or does it wait until it docks or some sort of mail transport is taken off the submarine?
Captain DUCOM. There would be a person that is responsible for collecting the mail, but they would not postmark the mail on submarines; they are too small to have a postal clerk assigned. That mail would either be turned over to the submarine tender, if it was available, or be turned over as soon as they came into port, or, ideally, turned over to a postal activity before they left port.
Mr. THORNBERRY. You have heard the stories that perhaps on occasion you see the mail bag on its way off on an airplane or something and somebody needs to try to hurry and get a ballot or a letter onto the mail bag, and therefore it did not get a postmark because of the rush to get it included. Is that credible to you, that that could have happened on some occasions?
Captain DUCOM. That is credible to me. Yes, it is.
Mr. THORNBERRY. But as I take it from your prior answer, you have taken some steps to prevent that from happening in the future?
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Captain DUCOM. We have taken steps to ensure that everyone understands what the requirements are for postmarking and that there should not be any operational considerations that would keep you from postmarking.
Mr. THORNBERRY. Thank you, Mr. Chairman.
Mr. MCHUGH. Thank the gentleman. Mr. Kirk.
Mr. KIRK. Thank you, Mr. Chairman. I remember when I was aboard the USS Normandy, we did not have a postal clerk aboard. That was a collateral duty that I think everybody aboard sought to avoid.
I wanted to ask a question about the statistics that we received: 48 percent voting absentee, 15 percent in person, 10 percent attempted. Wouldn't it be good public policy to increase the number of people who voted in person?
Ms. BRUNELLI. To increase the number—
Mr. KIRK. Of military personnel and dependents—
Ms. BRUNELLI. —who voted in person? It is not always feasible, because the military and their family members are away from home and not able to vote in person.
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Mr. KIRK. Shouldn't we take actions, though, to make in-person voting more convenient?
Ms. BRUNELLI. We make voting convenient by allowing our military to vote through the absentee in the mail system. It is because of military necessity they may not be able to get back to their residence to vote.
Mr. KIRK. Mr. Chairman, 18 U.S.C. 592 says, ''Whoever, being an officer of the Army or Navy, or other person in the civil, military or naval service of the United States, orders, brings, keeps or has under his authority or control any troops or armed men in a place where a general or special election is held, unless such force be necessary to repel armed enemies of the United States, shall be fined under this title or imprisoned.'' That statute has been ruled to prevent any military polling places be established on military bases in the United States.
I read on: ''This section shall not prevent any officer or member of the armed forces of the United States from exercising the right of suffrage in any election district to which he may belong, or if otherwise qualified according to the laws of the state in which he offers to vote.''
I represent Great Lakes Naval Training Center, 50,000 people in the state of Illinois, where you will have to drive several miles to find a voting place. Wouldn't it make sense to allow at least one polling station to be established in Forrestal Village?
Mr. COOKE. You raise an interesting question. And unlike the Comptroller General, I cannot protest that I am not a lawyer, because I am. But, first of all, of the large number at Great Lakes, many of them probably are not citizens of the state of Illinois. They may be citizens of Indiana, Kentucky, or you name it. So under Illinois law, even with a polling place on-base, they would not vote there.
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Mr. KIRK. The average polling place in my state accommodates 300 voters. Would you expect that out of the 50,000 Naval personnel on Great Lakes there might be 300 voters from the state of Illinois?
Mr. COOKE. I would certainly hope so.
Mr. KIRK. We do not have one single voting place allowed.
Mr. COOKE. I understand that is under study—
Ms. BRUNELLI. Yes, it is.
Mr. COOKE. —now and the requirement temporarily waived.
Mr. KIRK. Okay. Mr. Chairman, I have been advised by the President of the Illinois Senate that they would move forward with a law requiring the establishment of polling places on military facilities in the state of Illinois if the federal government let them. But currently they are being told the federal government will not permit voting on military bases.
Mr. COOKE. I will check that again. But I understand that temporarily the Department of Defense is reviewing its policies concerning polling places in active and reserve federal military facilities. New guidance will be published at the conclusion of that review. So right now it would be permitted as I read that.
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Mr. KIRK. Good. I would hope to get that in writing from you. I will certainly transmit it to my state capital, Springfield.
Mr. COOKE. I would be very pleased to do that. The difficulty also is that in making laws about election, other than for federal officers, including Members of Congress, you run into all problems, constitutional problems, as between the rights of states to determine their own election laws and the right of the federal government. So it is a thorny issue.
[The information referred to can be found in the Appendix.]
Mr. KIRK. This is my point exactly. The state of Illinois is under the impression that they do not have the flexibility.
Mr. COOKE. I understand that.
Mr. KIRK. And they would prefer to have the flexibility. I would just point out, Mr. Chairman, that it was the military vote that was the key to the 1864 victory of Abraham Lincoln, so this is a—
Mr. COOKE. And, as a matter of fact, many of the statutes you are reading had their origin back in Civil War days.
Mr. KIRK. That is right. And it might be time to update them. Thank you, Mr. Chairman.
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Mr. MCHUGH. Thank the gentleman. Mr. Langevin.
Mr. LANGEVIN. Thank you, Mr. Chairman. I thank the three panelists for their testimony here this afternoon. Let me say, as Rhode Island's Secretary of State, my prior life, I had the opportunity to work with folks in the Pentagon, particularly Mr. Cooke and Ms. Brunelli, and certainly enjoyed the good relations that we had between our two respective offices.
Mr. COOKE. Thank you.
Mr. LANGEVIN. Just by way of trying to get to the heart of the matter, in terms of improving voter turnout, voter participation among members of the military and instilling greater confidence in the system for our men and women in the armed forces, do you feel at this point that it would be better for the Congress and for the top leaders in the Pentagon to focus on improving the mail ballot system, or should we be looking toward allowing our men and women in uniform to vote via the Internet? Which would be a better method of focusing our attention?
Mr. COOKE. As Ms. Brunelli stated, the pilot program was to see whether technology would permit it. And the answer is yes, it would. We have no idea on costs. But we do other things with technology now; in most states now they will accept an online absentee, a request for absentee ballots can be faxed. You do not have to send it in writing.
We are doing other things short of voting on the Internet, and there are still some major problems. It is one thing to very carefully monitor a handful—very small—where we are trying to test technology, and then expanding it exponentially to the whole electorate. I do not know the cost. I do not know whether it will work that quickly, but we are continuing the experiment. And I have no doubt that it is coming, but whether it can come—I have heard 2002, 2004—I think those are very optimistic predictions. But we are working it hard.
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Mr. LANGEVIN. Yes. As Secretary of State, I had never—at least not yet—been a fan of Internet voting. There are still problems with it. But I would say that perhaps one exception would be for the men and women of the armed forces to be able to vote via the Internet. I think it is an intriguing possibility.
Mr. COOKE. We are going to do it overseas for members of the armed forces. I strongly believe that voting is a right, an obligation, a privilege of all citizens, and we are if we going to do it overseas that way, it should relate not only to our men and women in uniform, but to our U.S. citizens over there in any event.
Mr. LANGEVIN. Would the Internet provide greater flexibility in the ability of the service individuals to cast their votes, versus voting by mail?
Mr. COOKE. I think it does as well. Ms. Brunelli, weren't some of the votes voted at home? As long as they had the electronic signature to authenticate it, you do not really need a polling place. Come the day when we all have computers and electronic signatures, yes. So the answer is, yes, it does, or would or could if we ever get big enough.
Mr. LANGEVIN. Thank you.
Mr. MCHUGH. Does the gentleman yield back? I thank the gentleman.
While we are on the point of computer voting, Ms. Brunelli, you may have heard Mrs. Tauscher's and others' concern about the pilot program and the size of the sample with respect to your electronic voting, computer voting.
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Could you, at your earliest convenience, provide us with an update as to what your future plans are, do you intend to expand that program in the future, if so, in what way, and just where you think you are going, so we can have an idea of what is on the drawing board for that?
Ms. BRUNELLI. Mr. Chairman, we are in the midst of preparing our report, an assessment of that feasibility study. And that is all addressed in there, and we would be glad to present that to you for the record.
[The information referred to can be found in the Appendix.]
Mr. MCHUGH. I appreciate it. Thank you. One final point, and I appreciate your indulgence. Mr. Cooke, you said, and I think rightfully so, there is no such thing as a military ballot. I mean, your job is to make sure that people overseas, American citizens, are informed and have the tools and the information and the opportunity to vote. And I appreciate and understand that.
You, I am sure, heard Mr. Walker, however, make a distinction between the military functioning and the Federal Voting Assistance Program and the Department of State functioning of the civilian side of that. My understanding of that, you know, the State Department's side worked pretty well, could have been maybe a little better, but worked pretty well.
The concern he expressed about the military piece is centered on the fact there are some differences. You have voter assistance officers and certain procedures.
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Do you have oversight of that portion of it, as well, or is it totally the job of the military to make sure these officers are named, that they are informed, that they have the tools, as Mr. Walker described them, to make sure people have the opportunity to vote? Whose responsibility is that?
Mr. COOKE. I think it goes down through the command line. And sitting here in the Pentagon, I would have no better way of designating a master sergeant or a unit than, as a matter of fact, the military commanders here in Washington. Has to be the responsibility of the local commands.
And, by the way, we deal with State and probably go to all the embassies as part of our training program. And I think that we would probably find many of the same difficulties in State. And we reach out in many jurisdictions where we are more vigorously than the embassies, because we are bigger. So, again, I am not speaking for, just want to differentiate.
And I think many of the problems of distance, time, postage time, the mail system—I do apologize to my colleague on the left—does not always work that quickly with State's deadline. And those are endemic problems, not problems with whether you gave it to State, Defense or anyone else, just the difficulty of ensuring the right to vote.
Mr. MCHUGH. Those oversight functions you would maintain are the responsibility of the various military branches?
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Mr. COOKE. Yes.
Mr. MCHUGH. Okay. Thank you.
Mr. Thornberry.
Mr. THORNBERRY. Ms. Brunelli, do you all have an additional pilot demonstration program planned for 2002?
Ms. BRUNELLI. We would like to proceed with the project as a phased approach, looking at an electronic registration or registration over the Internet. And possibly, maybe not for 2002, but for delivery in 2004.
Mr. THORNBERRY. So at this point you do not have any specific plans for further testing, if you will, for the 2002 elections?
Ms. BRUNELLI. No specific plans, but some recommendations as to where we could go.
Mr. THORNBERRY. Okay. Recommendations to whom?
Ms. BRUNELLI. Well, as part of our assessment report in general—
Mr. THORNBERRY. It will be a part of that report of the assessment on what you could do.
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Ms. BRUNELLI. Yes, sir.
Mr. THORNBERRY. Okay. Thank you.
Mr. MCHUGH. Well, I thank the three of you for being here today. We obviously are midstream, as has been repeatedly mentioned this afternoon, and a number of reports to follow. I know that you folks want to do your reviewing and we do as well. So with any luck, we will get the opportunity to talk again in the future. So thank you, again, and have a good day.
Mr. COOKE. Thank you very much, Mr. Chairman.
Mr. MCHUGH. Appreciate it.
Our third panel, which we should now convene: Colonel Charles Partridge, United States Army, Retired, who is Legislative Counsel to the National Association of Uniformed Services; Mr. Mark Seavey, who is the Assistant Director of the Legislative Division in The American Legion; Mr. Bob Manhan, who is the Assistant Director, National Legislative Service, Veterans of Foreign Wars of the United States; Mr. Samuel F. Wright, Co-chairman of the Uniformed Services Voting Rights Committee of the Reserve Officers Association of the United States; and Ms. Anita Hodgkiss, who is Director of the Voting Rights Project, Lawyers' Committee for Civil Rights Under Law.
We welcome all of you and appreciate, particularly, your patience. I know you have been seated for a long time, but we are anxious to hear your comments. Obviously, with five members of the panel, we could consume a considerable amount of time just in your oral presentations. And it is not our intent to, in any way, circumvent or to short-circuit the information that you want to share with us verbally. I would note to you, however, as I did to the others, we do have your full statements, which I have read and will continue to review for content. So if at all possible, if you could compress your comments, it would facilitate all of us, I believe.
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So thank you, you have our appreciation. And why don't we just start with the way in which the introductions were read and go to Colonel Partridge. Welcome, sir.
STATEMENT OF COL. CHARLES PARTRIDGE U.S. ARMY, (RET.) LEGISLATIVE COUNSEL, NATIONAL ASSOCIATION FOR UNIFORMED SERVICES
Mr. PARTRIDGE. Thank you, Mr. Chairman, Mr. Thornberry. I appreciate the opportunity to testify, and I will keep it short. And I will just address the point that there is legislation, H.R. 1377, the Military Overseas Voting Empowerment Act, introduced by Representatives Thornberry, Cunningham, Sam Johnson and Ellen Tauscher, that we believe would be a major step in improving the process and could get it done by the next election.
We understand it is not complete and will not solve the problem entirely. We also agree that electronic voting is the ultimate solution, but that is not going to happen in time for the next election, certainly, and perhaps even further in the future.
Couple of things it does, and I would like to highlight. One, it protects the military statement of residency. In other words, the military person has said, ''This is my residence and I intend for this to be my residence,'' and it does not allow for an entity to come along later and say, ''We are sorry, that is not your residence.'' And the other thing it does, it helps, what I like to say, GI-proof the ballot. It eliminates the items, such as a postmark requirement, witness signatures, notary requirements and that sort of thing.
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And I would like just to read one item, which was by an election official in Fairfax County, Virginia, during the 1998 election. And this is the kind of thing that can happen that we believe this legislation will fix.
He was writing to the Governor of Virginia. He said, ''A significant number of those ballots were rejected because the current address entered on the outer envelope was the overseas location, rather than the Fairfax County address shown on the registered voter list. I objected, citing the name, Social Security number which matched, but my supervisor responded, 'Rules are rules,' and the ballots were set aside.''
And we believe this legislation would help prevent that sort of arbitrary disqualification of ballots, even though it is clear there is no fraud involved, it is just a technicality. Thank you, Mr. Chairman.
[The prepared statement of Mr. Partridge can be found in the Appendix.]
Mr. MCHUGH. I thank you, sir. Next, we introduce Mr. Seavey.
STATEMENT OF MARK SEAVEY, ASSISTANT DIRECTOR, LEGISLATIVE DIVISION OF THE AMERICAN LEGION
Mr. SEAVEY. Again, I will keep it short as well. Thank you, Mr. Chairman and Mr. Thornberry, for allowing us the opportunity to appear before this committee to express the concerns and views on the need to reform the military overseas absentee voting system. In an effort to keep it short, I will abbreviate most of this.
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Clearly, this is not a partisan issue; it is, rather, doing the right thing and doing it now, getting it done. The controversy over uncounted military absentee ballots this year in Florida illustrates a long-standing problem which continues to persist. The percentage of discounted ballots was similar in the 1996 and 1998 federal elections, but what was different this year and which brought it to the fore is the fact that the number of military absentee votes was larger than the percentage by which the election was decided in Florida.
Now, Mr. Chairman, in 1952, the Subcommittee on Elections of the House Administration Committee conducted hearings on the likely disenfranchisement of military personnel who at that time were fighting in the Korean War. At that time, President Truman noted that any federal legislation should be temporary, ''since it should be provided to make all the necessary changes in state laws before the congressional elections of 1954.''
Now we find ourselves nearly half a century later, and the necessary changes in state and local election laws and procedures have not yet been made. This is not to say that state and local governments are solely to blame. Complacency on the part of military units has undoubtedly compounded military absentee voting.
Before, we were discussing the officers who were selected to help in the voting assistance. My experience in the military has been that this was usually the most junior officer who at the time probably had a workload that was greater than other officers to begin with, so enthusiasm, from what I saw, was less than exemplary.
The sad fact of the matter is that, on average, some 30 percent of all military absentee votes are not counted in federal elections. The American Legion recognizes that the conduct of voting is regulated by the states. However, we do believe that federal legislation with guidelines is required for two reasons: first, the states have had nearly half a century to resolve the problem, and they have not. National defense is uniquely a constitutional mandated federal responsibility, and the federal government has the authority and the responsibility to ensure that military personnel and their families are not disenfranchised by the circumstances of their service.
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Second, congressional legislation is required because of the need for a more uniform and consistent system, not 50 systems, whereby the Department of Defense can administer the system with the assurance that our soldiers, sailors, Marines, airmen and Coast Guardsmen and their families serving overseas will have their votes counted.
One thing about that. I have here the 2000-2001 voting assistance guide. The first 20 pages of this guide generally deal with everything for the federal elections. The remaining 340-some-odd pages are the individual states. Now, as I said, these are junior officers that are handling this, and they cannot be legal experts on all 50 states. Some uniformity would go a long way in this instance, we believe.
At a minimum, we believe that the following provisions should be included in any congressional legislation: rights of military voters should not be blocked by circumstances such as residency requirements; military voters should be protected from disenfranchisement based on technicalities that are beyond their control, such as postmark discrepancies, missing notarized signatures, and confusion about the residency requirements; and, third, only a single request for all federal election ballots should be required in a year.
Congressional legislation on military absentee voting is not intended to be a panacea. Federal election laws and guidelines will require cooperation with the states.
And, lastly, we would recommend that the Congress take the following actions with respect to this issue: that the House Administration Committee and yourselves conduct subsequent hearings on this issue with the General Accounting Office and the Department of Defense, as it was discussed earlier; that laws and guidelines pertaining to the subject be developed at the federal as well as state and local levels; and, finally, that the Congress encourage broad-based support among veterans' and military organizations to develop programs that effective follow-through activities at state and local levels.
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Mr. Chairman, the recent downing of a U.S. Navy surveillance aircraft and its crew by the People's Republic of China graphically portrays that even during times of relative peace American servicemembers continue to go into harm's way in the service of their country. It is only fitting and proper that they have at least the same right to have their ballot counted as any other American.
Mr. Chairman, this concludes our statement.
[The prepared statement of Mr. Seavey can be found in the Appendix.]
Mr. MCHUGH. Thank you very much, Mr. Seavey. Mr. Manhan.
STATEMENT OF MR. BOB MANHAN, ASSISTANT DIRECTOR OF NATIONAL LEGISLATIVE SERVICE, VETERANS OF FOREIGN WARS OF THE UNITED STATES
Mr. MANHAN. Thank you very much, Mr. Chairman and Mr. Thornberry. I know that the VFW's testimony is part of the permanent record, so I will merely summarize why we want to participate in this issue of military voting.
The fundamental problem, as we see it, is that whenever anyone enters into the armed services, he or she is almost always assigned to someplace other than the community they came from. This is true whether they are in the United States or overseas, whether they are a member of a Reserve component or a National Guard organization.
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It is the VFW's contention that military servicemembers, who swear to uphold the Constitution of the United States, must not be denied the right or privilege to vote that any other or all other American citizens have. We strongly believe that once a local voting district office accepts a military member's absentee registration form for national elections, which is presently guaranteed by law, that request for an absentee ballot should also be good for any state and/or local elections.
We think this makes good sense, because it is equitable. Anyone who declares his residency for a federal election would certainly maintain the same residency in a state or local election; to do otherwise would be fraud, and that is a different issue.
The VFW strongly believes that it is entirely appropriate at this time for the federal government to insist that the states, in exercising their state responsibility to administer state and local elections, not discriminate against those personnel whom the federal government has chosen to carry out its national defense responsibilities, regardless of where they happen to live at the time elections are being held.
Thank you very much, Mr. Chairman, Mr. Thornberry.
[The prepared statement of Mr. Manhan can be found in the Appendix.]
Mr. MCHUGH. Thank you, Mr. Manhan. Mr. Wright.
STATEMENT OF MR. SAMUEL F. WRIGHT, CO-CHAIRMAN, UNIFORMED SERVICES VOTING RIGHTS COMMITTEE, RESERVE OFFICERS ASSOCIATION OF THE UNITED STATES
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Mr. WRIGHT. Mr. Chairman, Representative Thornberry, thank you for giving us this opportunity.
It is Florida 2000 that put this issue on the national radar screen, but the problem is not limited to Florida, and it did not start in the year 2000. You know, several of the witnesses have referred to the 1952 hearings. You know, I think as long as military personnel have been allowed to vote at all, this has been a problem.
I, personally, have suffered problems with mail delay. I am a captain in the Naval Reserve. I have been on and off active duty. The most recent time I was on active duty, I voted in the February 2000 presidential primary in Virginia. I sent in a federal postcard application from Tampa, MacDill Air Force Base, to Charlotte Cleary, the registrar of voters of Arlington County. It came back, ''Return to sender, address not known,'' even though I used the address contained in the voting assistance guide.
Fortunately, I believe my ballot was counted because I happened to know Charlotte Cleary's e-mail address, and I sent her an e-mail about, ''Where is my ballot?'' when I started to get concerned about it, and she sent me an e-mail back that she had not received my application. And some days later the application came back. And so she faxed me an application, and I filled it out and faxed it back to her, and I did get a ballot.
But it was only through sure happenstance that that was fortunate to work and that Virginia was willing to do at least part of the process electronically.
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But the Postal Service is in sad shape, financially, administratively, a lot of other ways, and as long as we are depending on the Postal Service to get the ballots there on time, a lot of people are going to be disappointed.
It is time for electronic voting. The technology does exist that will provide a secure and private vote electronically, and the DOD pilot project—I was disappointed it only involved 85 voters. But at least all 85 of them, their ballots were counted.
And so I think electronic voting is the solution, and I think that the Congress does have the constitutional authority. I see right here in front of me, on this little plaque, a quote from Article I, Section 8, Clauses 12 and 13, ''The Congress has the power to raise and support armies, to provide and maintain a navy.''
I cite in my written statement some case law upholding the constitutionality of several federal statutes, including the Soldiers' and Sailors' Civil Relief Act, the Uniformed Services Employment and Re-Employment Rights Act, have been held to be constitutional, even as applied to the states as employers or as taxing authorities.
The Congress does have the authority and the responsibility to protect the legal rights of those who serve on the armed forces, whether through conscription or voluntarily.
Congress first enacted a re-employment statute in 1940, as part of the first peacetime draft law, and Representative R. Ewing Thomason of Texas forcefully asserted, ''This is Uncle Sam's law, this is Uncle Sam who is drafting these men, and he ought to be fair enough to see that the law is enforced.''
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You know, if that is true of the statutory right to return to one's civilian job, I think that should be all the more true of the fundamental constitutional right to vote. Now, I want all eligible citizens to have the right to vote. But I really think that the Congress in general and this committee in particular has a special obligation to people serving in the military.
In those 1952 hearings, a letter by President Truman opened with this paragraph:
''About 2,500,000 men and women in the armed forces are of voting age at the present time. Many of those in uniform are serving overseas or in parts of the country distant from their homes. They are unable to return to their states either to register or to vote, yet these men and women who are serving their country and in many cases risking their lives deserve above all others to exercise their right to vote in this election year. At a time when these young people are defending our country and its free institutions, the least we at home can do is to make sure that they are able to enjoy the rights they are being asked to fight to preserve.''
I suggest that those words are as true in 2001 as they were in 1952, and that they are addressed at least as much to the 107th Congress as they were to the 82nd Congress at that time. Thank you very much.
[The prepared statement of Mr. Wright can be found in the Appendix.]
Mr. MCHUGH. Thank you very much. Ms. Hodgkiss.
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STATEMENT OF MS. ANITA S. HODGKISS, DIRECTOR, VOTING RIGHTS PROJECT, LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW
Ms. HODGKISS. Mr. Chairman and Mr. Thornberry, thank you very much for inviting me here today. You have my written statement and I will be brief.
The Lawyers Committee has a long history of working to guarantee that all Americans have an equal opportunity to participate in the electoral process. To be sure, this includes military personnel and their dependents, whether overseas or residing in the U.S. but outside of their home state. Even if turnout among military voters is high, the standard must be that every voter who wants to vote has an equal opportunity to cast their vote and to have that vote counted. As a country founded on democratic principles, we cannot accept the exclusion of any voters for any reason.
This past election brought to light the troubling fact that the votes of many military personnel and their families are not counted because of confusing, complicated and burdensome state requirements. Certainly, changes need to be made and some changes are being made at the state level already. The Florida Election Reform Act of 2001 included provisions directly applicable to military voters, including giving them late registration dates. But certainly reform at the federal level would have the benefit of introducing greater uniformity nationwide and some adherence to basic standards.
However, it is important to make sure that any reform measures result in all voters having an equal opportunity to vote. And in that regard, I would like to comment on H.R. 1377. It has provisions that make it easier to register, obtain absentee ballot, and it creates a higher threshold for disallowing military ballots.
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However, we have concerns about the measure, because it will provide military voters with better access than nonmilitary voters in similar situations. For example, there are hundreds of thousands of nonmilitary U.S. citizens living abroad. These individuals face the same barriers in exercising their right to vote as military personnel. We are troubled by any legislation that would minimize barriers for one group but not for the other. We fully support easing voting restrictions and facilitating citizens' access to the ballot, but not legislation that would favor one type of voter over another.
Similarly, college students attending school outside their county of residence are another group who, like absent military personnel, as defined in the act, encounter numerous barriers when attempting to register and vote. While some students prefer to be registered in their home state and vote by absentee ballot, others choose to register at school and vote in person on Election Day. As a result of complicated and restrictive state registration and absentee balloting provisions, thousands of college students are disenfranchised each election.
For example, at Florida A&M University, I talked to many students who ultimately found themselves unable to vote in the November 2000, general election due to confusion over registration requirements and their failure to apply for absentee ballots on time, while other students found that their voter registration applications were not processed in time by state supervisor of elections offices.
We are concerned that any new proposal that applies only to the votes of military personnel and not other similarly situated citizens would conflict with the equal protection clause, which mandates that all votes be counted equally.
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In fact, in the recent Supreme Court decision Bush v. Gore, the court reaffirmed the principle that a state may not favor one person's vote over that of another. The Supreme Court's words on this point are very clear. The Court explained, ''Having once granted the right to vote on equal terms, the state may not, by later arbitrary and disparate treatment, value one person's vote over that of another.''
Thus, whether making changes to facilitate late registration for voters who move within days of an election—and we know that approximately 150,000 people move from one state to another each week—or changing absentee balloting requirements to make it easier for overseas or out-of-state voters to vote, it is important to make sure that such reforms have the result of giving all voters equal access.
The Civil Right Division of the Department of Justice is responsible for enforcing the Uniformed and Overseas Citizen Absentee Voting Act (UOCAVA). Enforcement actions are typically brought when absentee ballots for overseas voters are not sent in time for them to return them within state law deadlines.
Since UOCAVA was enacted in 1986, the Civil Rights Division has brought more than 20 such law suits. Thus, it is clear that all citizens living overseas commonly encounter barriers to voting and need effective and enforceable protections.
Although we support easing restrictions on registration requirements and absentee voting, we would have concerns about legislation only addressing the rights of military voters. We urge federal and state legislators to enact comprehensive electoral reform measures that further the rights of all Americans to cast a ballot and have that ballot counted.
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Thank you for your work on this important issue.
[The prepared statement of Ms. Hodgkiss can be found in the Appendix.]
Mr. MCHUGH. Thank you very much. We appreciate your testimony.
And since we ended with you, Ms. Hodgkiss, let's start with you.
I will be very honest—something that we do not often do in this hall as politicians sometimes—be frank, I should say. We are always honest. Perhaps we are not always frank.
I wondered if I would find much to agree with in your testimony prior to my reading it. I do not know why that was. I just did. And I apologize, because having read it, I do agree with a great deal, if not the large majority, major share of what you say.
However, you may understand, this subcommittee, and indeed this committee, is charged with one relatively narrow technical oversight of the issue. So I want to explore just for a moment some of the points that you brought up with respect to equal protection.
I am not an attorney. Mr. Walker said that repeatedly on the first panel. I should put that disclaimer out there as well, so please be patient with me.
I followed the Supreme Court decision on the equal protection findings with respect to Florida. As I recall, most of that was focused on the various standards that the jurisdictions within county-by-county in Florida were utilizing to do recounts. Is that correct?
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Ms. HODGKISS. That is right.
Mr. MCHUGH. And it is an important point. And I recognize what you say with respect to the equal protection vulnerabilities of a wide-based bill that dramatically favors one group over another, whether it is civilian over military or whichever. But your testimony also, as I read it, admitted that there are certain things that you can do to provide greater assistance to certain classes of voters, for example language assistance.
In your legal opinion, is there not a possibility the courts might find that, given the fact that unlike college students, unlike many other American voters, the military are under a certain set of circumstances beyond their control; you deploy or you are court martialed. I am presuming the vast majority of folks that you cited who move, and there are problems there, and I do not suggest they should not be addressed, but those folks did, by and large, voluntarily.
When the 10th Mountain Division in my district went to be the division on the ground in Bosnia, nobody made that choice. I am sure they wanted to go, but they were told, ''You are going.'' So isn't there some legal wiggle room for us to provide some sort of special exception for military that might evade the issue of equal protection?
Ms. HODGKISS. I think the analysis has to start from what the ultimate impact is on the ability of voters to vote. So, yes, there may be special things that have to be done that apply only in military circumstances, just as special things that are done that apply only to voters with certain types of disability. So what you actually do to ultimately get them to the point of having an effective vote may be different.
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But I think our point is that at the end of the day the impact has to result in all voters having the same ability to vote.
Mr. MCHUGH. Well, that is an objective that, I think, we all share, but there is certain legislative realities that, as I mention, we have to deal with here. There is no way that we can move through this subcommittee a bill that would take postmark regulations to the embassy staffs of the countries across the world, in which we are assigned. I mean, we do not have that jurisdiction. And I am just trying to ponder in my own my mind the possible implications of our acting, for lack of a better word, unilaterally on the military issues, with respect to those areas we have jurisdiction and what the ultimate judicial findings on that might be.
Ms. HODGKISS. Well, this subcommittee may not have authority to address that in a way that affects all voters, there are certainly other—
Mr. MCHUGH. Well, sure, yes. But welcome to Washington. We do not always work together. I hate to disillusion anyone who may think that.
But you would agree that, depending on what we do, the courts could look at someone deployed in the middle of the Persian Gulf with a Marine expeditionary force that that is a special circumstance, something may be constructed to assist the insurance of the validation of their vote that may not be appropriate for another overseas citizen?
Ms. HODGKISS. Yes.
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Mr. MCHUGH. And we are not looking to disenfranchise anyone either.
To the gentlemen on the panel, to what extent have any of you had the opportunity to look at the very perplexing problem we have of trying to distinguish between what I think we will all agree is our constitutional authority to exert jurisdiction over congressional election, less so, but still appropriated off on presidential, with the state jurisdiction, whether we like it or not is probably protecting under constitutional law?
Yes, sir, Mr. Wright?
Mr. WRIGHT. Well, I addressed that in my statement in a couple of footnotes. And as I mentioned, there is case law upholding the constitutionality of statues like the Soldiers' and Sailors' Civil Relief Act the Uniformed Services Employment and Re-employment Rights Act. As part of the power to raise and support armies and provide and maintain a navy, the Congress needs to ensure that the legal rights—not necessarily limited to the constitutional rights, but certainly the constitutional rights should be at the top—the legal rights of people who serve in the military are not lost because of their service. And that is what we are talking about here.
Mr. MCHUGH. Well, I feel that way in my heart. I am not sure how the law reads out.
Mr. WRIGHT. Well, since 1940, it has been a statute that an employer is required to re-employ you after voluntary or involuntary military service. And that law is applied to the states as employers, since it was amended in 1973. And the states objected to that and it was upheld.
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Because if Congress is going to—whether we are drafting people or whether we are trying to create incentives for them to volunteer—you have to protect their rights. If you cannot protect their rights, then they will not join, or they will not stay in. And as part of the power to raise and support an army and provide and maintain a navy, that Congress has the constitutional authority, if necessary, to dictate to the states. And if a record is made, and I think 50 years is long enough to make a record that it is necessary to dictate that Congress can do this and should do this.
Mr. MCHUGH. Well, again, it is certainly not an issue of philosophical disagreement between you and I. I would be happy to hear comments otherwise.
I would refer to the only attorney I am aware of we have available at the moment. Is there not, however, an express constitutional authority invested in the states to control their election laws?
Ms. HODGKISS. The Constitution makes a distinction between the authority to regulate the time, place and manner of elections versus the qualification of voters and traditionally the voters' qualifications, that is, other than the constitutional provisions for age and you cannot discriminate on the basis of race, that have traditionally been left to the state. So when you are addressing things like residency requirements and trying to get the states to allow military voters to be residents, then I think you are more in danger of treading on the states' authority.
But I do think that the ability to regulate the time, place and manner of elections is very broad and that the ripple effect is very real. But states are not going to say, ''Well, because we have to do this for a federal election, we are still going to do it differently for our state election.''
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Mr. WRIGHT. Mr. Chairman, I am a lawyer, also, and a Judge Advocate in the Naval Reserve, and I have had occasion to advise clients about questions like this many times over the years. I wanted to address the other issue Mr. Thornberry raised about the domicile issue.
It arose from a 1996 lawsuit in Val Verde County, Texas, where there were exactly 800 military absentee ballots, and it turned out that those 800 votes determined the outcome of two local elections, for sheriff and county commissioner. If you only count the votes cast on Election Day, one pair of candidates win. When you add in the 800 military absentee ballots, different candidates win for those two offices.
The day after the election, Texas Rural Legal Aid, using our federal tax dollars, through their legal services grant, filed suit in federal district court for the Western District of Texas contending that these 800 ballots were invalid because they were not, ''real residents,'' of the county, and they alleged that counting the ballots violated the Voting Rights Act because it diluted Hispanic votes.
The Texas Rural Legal Aid was able to establish, based on examining the completed federal postcard application forms, that 760 of the 800—in other words, 95 percent—were white, not of Hispanic origin. The federal postcard application does contain a race question.
Back in 1985, I asked Mr. Henry Valentino, who was the Director of the Federal Voting Assistance Program at the time, the position that Pauline Brunelli holds now, ''Why is that question on the form? What possible relevance does it have?''
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Well, he said, ''Well, it is only on the form for statistical purposes; that certain, mostly Southern, states that are covered states under the Voting Rights Act are required to make a statistical report about the racial composition of the electorate.'' And he said, ''Do not worry, Sam, it will never be used to determine the eligibility of a particular voter.''
Fast-forward about 11 years and that is exactly what is happening.
But Judge Fred Bowie allowed Texas Rural Legal Aid to send out a 24-page residency questionnaire as a deposition on written interrogatories. These 800 voters, all over the world, were required to complete it, under oath, get it notarized and send it back.
The bottom-line question was, ''Where do you intend to live after you leave active duty in the military?'' One of the voters who answered the question, and was representative of most of the 800 and representative of most career military personnel. He is under oath. He has to tell the truth. He said, ''Well, I do intend to return to Texas when I retire from the Air Force, in about the year 2010, but it will probably be Austin or San Antonio instead of Val Verde County.''
Judge Bowie, in his reported decision, it is cited in my written testimony, said, ''Well, that person is not entitled to vote, because he does not specifically intend to return to Val Verde County.''
If that is the test, very few career military can vote. That individual gave up his original domicile of origin, the place where he lived before he entered active duty, when he established a domicile of choice in Val Verde County while stationed at Laughlin Air Force Base.
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So he cannot vote in his original home town. He cannot vote in Colorado, where he is stationed at the time because he is already decided and stated under oath that he does not intend to live in Colorado; that is only where the military requires him to be at that time. And he cannot establish a new domicile of choice in Austin or San Antonio based on an intent to move there 15 years in the future. So it is Val Verde County or nowhere.
I am sure most career military, if you made them swear under oath that they are going to return to that place, very few could do that. I mean, if they even think about where they are going to live after retirement, they change their minds many times. So where they finally end up living is based on where they can find civilian employment.
The last 4 years, the Senate has passed legislation to solve this problem. Each of those 4 years, the House has refused to go along. We need legislation like that through both houses of Congress, and that is one of the important items in Representative Thornberry's H.R. 1377.
And I think Congress has the power to do this. It was not about states' rights. It was not the state of Texas that sought to disenfranchise these 800 military voters. It was Texas Rural Legal Aid. The state of Texas intervened in the law suit as a defendant, and argued that the ballots should be counted. So I think there is constitutional authority and responsibility for Congress to act.
Mr. MCHUGH. I appreciate that. Ultimately, the votes were counted, true?
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Mr. WRIGHT. That is unclear. Ultimately, the Republican candidate for sheriff was installed 6 months late. But the—
Mr. MCHUGH. Well, his election was predicated—as I understand it and I may be wrong and I am not trying to be argumentative here—as I understand it, his election was predicated upon those absentee ballots.
Mr. WRIGHT. Right. He took office 6 months late. The other successful candidate said, ''To hell with it, I do not want the job.''
Mr. MCHUGH. I know the feeling. [Laughter.]
Mr. WRIGHT. But Judge Bowie, in his second and third and fourth reported decision, helpfully suggested other ways that the right of the military to vote could be challenged, even before the election.
Mr. MCHUGH. Yes, I understand.
Mr. WRIGHT. He never backed off that decision about residence, that you have to have a present intent to return.
Mr. MCHUGH. Right. Well, I do not mean to suggest that the ultimate outcome obviates your concerns by any means. I just wanted to make sure I had in my own mind the actual development there.
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All of you heard, I am assuming, Mr. Cooke's comments in defense of the Federal Voter Assistance Program, which is to be expected. I am sure he works hard at it. You also heard the Comptroller General offer a somewhat differing view with respect to its effectiveness, at least or particularly on the military side.
Any of you have some comments anecdotally or through whatever looks your organization may have done on this program? How do you think it is working? Suggestions as to what might be done to make it more effective? Because that is the area of specific jurisdiction of this subcommittee, so it is of particular interest to us if we can be helpful there.
Mr. PARTRIDGE. I have been a voting assistance officer, but it was many, many years ago, and I think that some of the descriptions there were right; you know it is an additional duty, so you are working hard to try to do it right.
I think that Ms. Brunelli does a good job of putting the information out and getting it out. Perhaps, if there was any one single thing that could be done would be to emphasize registration through the chain of command, probably beginning 3 to 6 months in the year before an election year, once a uniformed servicemember gets registered, then the process becomes a little easier for him or her to do the rest of the process. I would say probably that would be my recommendation.
Mr. MCHUGH. Well, Colonel, let me ask you, because of your background as a voting assistance officer: One of the suspicions I have is that, amongst the rank-and-file military, for a variety of reasons—they are busy, as important as voting is, it is not what the military does, at least not on their first 10 checklist; and other understandable reasons—it may not be emphasized up and down the chain, particularly amongst that voting assistance officer.
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I got the impression here, in listening to various members of the subcommittee and some of the panelists talk, that you have often—if you pick someone and often, apparently, the position goes un-nominated. But if you pick someone, they may not view it as the most important thing they are doing for the next couple of weeks.
What if we were to instill into the voter assistance programs very specific incentives to make it more important? For example, make it a specific point of IG review; make the performance of the selected voting assistance officer part of his performance report.
Do you think that would be helpful, or would that actually be overkill? Does anybody have any reactions to those kinds of points? Just to try to bring some emphasis to it.
Before I get to you, Mr. Wright, and I will, I want to start over at the other end. Any thoughts on that?
Mr. SEAVEY. I am not so certain that is a great thing, only because I have seen recently a lot of things. I am still in the National Guard, and I have seen us have a lot of things that we are now graded on that we never were before, for instance, the potential to retain soldiers, things of that nature. That now appears on officer evaluation reports where it did not in the past. Once you start to add all these ancillary things, you get away from the mission, at least in a combat arms mentality where we are there to kill people and break things.
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Once you start to add all of these other ancillary things, you, kind of, get away from where the actual unit is to begin.
Mr. MCHUGH. Well, that is part of the problem. And I do not disagree with what you are saying. And I guess what we have to do is make a priority as to how important this is. And let me throw out a generic request that we probably do not have time to go into now even if you have thoughts. Think about what we can do to help the services place an appropriate amount of emphasis on this so the program runs better.
I am not a big guy for mandating things legislatively, particularly when it comes to officer evaluation systems. But I think one thing is obvious, the voter assistance program within the military, and I will leave open for the moment the answer is to why, is not being used effectively enough. And the IG report. Anybody else? One more, we are almost to Mr. Wright? Mr. Manhan, any thoughts on any of that?
Mr. MANHAN. Absolutely, Mr. Chairman. But let me preface what I am going to say to assure you I am not a lawyer.
Some of the responsibility that we have not touched on lies with the individual, whether he or she is a soldier or he or she is a civilian. And the thrust of the overall VFW testimony was to try to make the mechanics of voting easier for those people who happen to be in the military. You can lead a horse to water, but he may not want to drink.
Our society itself is part of the problem. These youngsters, they have been somewhere before they turn 17 or 18, and have now joined the ''Army of One,'' tried to ''be all they can be.'' But they have no sense of patriotism or interest in voting, sir. You will not get 100 percent military voting from Camp Swampy.
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The thrust again was to try to make it a little easier. And I will try to add a little bit to what Mr. Sam Wright was saying. If the states would realize that there may be a payoff for themselves too to have more of their citizens participate in local government, state government, it may make for a better community.
But our thrust here is not to give the military person an edge or anything else. We wanted to make the mechanics, the administration, the laws, a little easier for him. I touched on the fact—or the VFW did—postmarks, late arrival of ballots, I think these things are going to go the way of the horse and buggy that many people before me at this hearing said. Snail mail is probably on the way out. Eventually, Mr. Cooke said, we are going to have electronic signatures and so forth.
I think we might move in the right direction if I had your job, to try to simplify the thing. But everything Ms. Brunelli said, Mr. Cooke, and so forth, it is not a very easy issue. We do not know why military people do not vote. That is my nickel's worth, sir.
Mr. MCHUGH. Well, it is an important point, and you are right, unlike some countries that really do have free choice in candidates, they do not, without penalty, have the choice of not voting. We have that choice here.
Mr. MANHAN. Yes, sir.
Mr. MCHUGH. And it is an American institution for better or worse. Mr. Wright.
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Mr. WRIGHT. Yes, sir, I know one way that the Congress could address it is providing, at least at the forms, the federal postcard application forms, the federal write-in absentee ballot forms, ought to go out to every military command, you know, at home and abroad, without the command having to order it and to pay for it.
The USS Abraham Lincoln, an aircraft carrier with more than 5,000 men and women on board, deployed last August for a 6-month deployment without any of those forms on board. And I got an e-mail about it, and I sent an e-mail, and you know, they said, ''Well, we do not have enough money to buy fuel for the airplanes; why should we buy these forms?''
You know, so that is part of the problem. At least you could deal with it that way. At least there would be the forms there, so if somebody does take an interest, at least on board the ship somewhere they can find the forms.
Mr. MCHUGH. Good point.
Any last thoughts? Well, let me have a last thought of appreciation to all of you. This is, I repeat myself yet again, an ongoing situation, an ongoing process. A number of very important reports are being finalized now. I trust your organizations, as you have to this point, will be deeply involved in those, and I think that is wonderful. And we look forward to working with you.
And certainly, Ms. Hodgkiss, I would say, as she follows these developments, if you see us in your mind getting to far afield, we would appreciate any input you might have. Your comments were very helpful and, I think, very appropriate.
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So thank you all, and have a good day. And with that, seeing as how there would be no objection, because I would win the vote, meeting is adjourned. Thanks.
[Whereupon, at 5:29 p.m., the subcommittee was adjourned.]
A P P E N D I X
May 9, 2001
[The Appendix is pending.]