Mr. Philip Zelikow: We are grateful that Justice has been able to send perhaps the senior career official responsible for these issues and that you are able to testify before the commission. Thank you, Mr. Rich.

Mr. Joseph Rich: Thank you. It is a real honor for me to appear before such a distinguished panel. To let you know a little bit about my background, I have been a career civil rights division attorney, but I have only done voting rights for two years. I have been the acting chief since 1999. Before that I did a lot of housing and lending work and school desegregation work. Having done this for two years, I am still learning a lot.

I am going to try to briefly summarize for you the statutes that the voting section enforces. I did submit a summary, about a ten-page summary, that includes a short description of these statutes. It also includes a section that addresses some of the activities that the voting section has undertaken since the 2000 election, and all the problems that came to our attention as a result of that election. Finally, attached there is a short discussion of the attorney general�s March 7th Voting Rights Initiative, which also was in response to the great interest in election reform issues.

The voting section enforces the federal civil rights statutes. There are a number of criminal civil rights provisions, that I am not going to address, and criminal fraud provisions. The Public Integrity Section of the Criminal Division enforces criminal fraud, campaign finance-type fraud. The Civil Rights Criminal Section enforces intimidation statutes that involve civil rights issues. I am going to limit my remarks to the civil statutes that the voting section enforces.

I preface this by saying that we have a lot of responsibility under these statutes. The Voting Rights Act is the most important. I would say that probably 80 to 90 percent of our resources go into enforcing the Voting Rights Act. The Voting Rights Act also has provisions, that take up most of our resources, that do not directly address some of the issues that you are dealing with as regards the conduct of elections. For instance, about half of our staff enforces Section 5 of the Voting Rights Act, which is the provision that requires certain covered jurisdictions to submit any voting change to us for pre-clearance. We review to see whether the purpose or the effect of that change is to put minority voters in a worse situation. With re-districting starting up right now, we have a very daunting task ahead of us. We have tremendous increases in those submissions every ten years with the census.

We also have a very vigorous Section 2 program. Section 2 is the nationwide prohibition on standards, practices, and procedures that deny or abridge the right to vote on the basis of race or language minority. That program is primarily addressing vote dilution situations. We are attacking structural barriers such as at-large systems that may dilute the vote of minorities. I think that it is fair to say that, not only the Department of Justice�s enforcement of Section 2, but also the private sector�s enforcement has focused on those structural barriers: the types of voting methods that are used around the country.

Having said that, there is a good deal of our enforcement program that more directly addresses the issues that you are concerned with. Let me just briefly touch on them. First, there is a federal observer program, which is part of the Voting Rights Act of 1965. It, again, is limited to those counties or jurisdictions certified as covered states by the attorney general. We also can send observers to jurisdictions not covered, on a court order. Traditionally, the observer program was to insure fairness, to deter intimidation of black voters, and was one of the central parts of the Voting Rights Act. It has continued to be a central part of our enforcement program.

Every election throughout the year, we have an ongoing program to survey and find out where we need to send observers. For instance, in November we had perhaps the highest number of observers that we have had in many years, over three hundred. Virtually all of the voting section staff was out co-coordinating that program with OPM officials who serve as the observers.

I will turn to another important provision that was alluded to in the last panel: the provision of language assistance for language minorities. Many of the cases we have brought in that area . . . and again, this only applies to covered jurisdictions that are defined as five percent or 10,000 voters who are limited English-speaking voters that are affirmatively required to provide bilingual ballots, bilingual assistance, bilingual poll workers to meet the requirements of Section 203. We have had a number of cases brought under Section 203 over the years. Typically, consent decrees have been entered in those cases which have required compliance with the bilingual requirements of the law. But very importantly, the law also requires or gives us the permission or authority to send observers to these districts. For instance, in November, an awful lot of our observer program was in jurisdictions that are not covered under the traditional Section 5 states. Under court orders we had observers in Pasaic, New Jersey. We had observers in Hamtramack, Michigan, dealing with Arab-American voters. We had observers out in California dealing with Chinese-speaking voters and in New Mexico several jurisdictions with Native American voters. So the observer program has become a very nationwide type of program. Its most important feature is that it deters harassment, intimidation, discrimination. It puts us in a position that if intimidation is observed, we have the ability to try to work with state and local election officials right on the spot to change it. But I think the most important thing is deterrence: to have federal observers at an election is, of course, something that does deter discriminatory activity.

Other statutes are, of course, important, particularly to the issues that you are dealing with, the NVRA, the Motor-Voter Bill.

Mr Zelikow: Mr. Rich, just to interrupt, I must remind you of your time.

Mr. Rich: Let me just touch briefly on that, and then I will leave it open. I know there are a lot of questions in other areas. The NVRA is, of course, the Motor-Voter Law. We have dual responsibility with the FEC. We are the enforcement arm. They are the arm that really provides guidance and interpretation to officials.

We have certain statutes that deal with disability issues. The clearest is one provision of the Voting Rights Act which requires jurisdictions to permit disabled or blind voters to bring assistance with them to the polls. The laws that deal with accessibility to the polls are not as clear-cut. I think that it is fair to say that the interpretation of these laws give a certain amount of discretion to local officials. In lieu of making polling places accessible, it allows them to provide alternatives, either alternative voting places or alternative ways of voting: absentee or curbside. With that I will stop.

Mr. Lloyd Cutler: Our next witness is Scott Harshbarger. For the benefit of the members of the public, we have a little time-keeping machine here. Green light means you still have time to go. Red light means you should stop if you would like to allow adequate time to your colleagues. If that concern is not of great importance to you, it is left to the conscience of the witnesses.

Scott Harshbarger is the president and chief executive officer of Common Cause, an organization that needs no introduction to any members of the commission. And if it needs any further introduction, I leave it to Mr. Harshbarger to provide it.

Mr. Bill Richardson: Scott, before you begin, let me eat into your time by extending a personal note of welcome. My time with Common Cause goes all the way back to John Gardner.

Mr. Scott Harshbarger: Thank you very much. I accept the parting shot across the bow, in terms of time. I also am honored to be here. And to some of you, I express my embarrassment. I have been in Washington for 18 months with Common Cause and have not met many of you until I came here. And to others I have seen in other ventures, it is nice to see you here. It is also somewhat daunting to be here, to some extent standing on the shoulders and trying to speak in the place of John Gardner and Archibald Cox and Derek Bok. I will try, and particularly with the panel, to focus on just a few things. I have submitted written testimony, which you have. I appreciate that while I am in another panel, I do believe that this issue is fundamentally a question of equal protection, the Constitution and law, ultimately. In any event, as I say, I testify on behalf of Common Cause and the Common Cause Education Fund.

I want to talk about three fundamental things: our heritage as a democracy and civil rights organization; our nationwide infrastructure and experience as an independent nonpartisan group building broad-based coalitions; and fundamentally, to talk about the themes of democracy: equality and citizen participation. And I will do that, with all due deference, very briefly. Because I think this is not an issue of technology; the crisis in our election systems is a fundamental question of our democracy itself. As a nation we have to face the truth of the matter. If this were any other kind of a crisis, at any other time in our history, we would have already mobilized as a nation to repair what is essentially a fundamental disenfranchisement of many, many people, whether intentionally or unintentionally, whether with or without a conspiracy. The fact of the matter is that, disproportionately, minorities, the poor, and the politically powerless were unable or prevented from voting. Whether that was from names being purged from voting lists or whether it was intolerable lines at the polls, or whether it was other kinds of struggles to simply get there or not, as you heard from exceptionally talented and able public servants, the inability to answer Professor Edley�s question: Could you guarantee that in any state, in any town in this country, you could not have had the same problems that we had in Florida? As a nation, unfortunately, with a political crisis, we have leaped into this, by all due deference, through study and commissions as opposed to immediate action. So your action is very important.

From my perspective, this crisis, I think, is one about fundamental voting rights and civil rights rather than simply replacing machines, however important that is. That too has its own equal protection implications. I have listed many of the reforms that we support and propose; many of them are summarized on page ten. They have been covered by many people: about replacing outdated voting machines and insuring adequate resources at all polling places, instituting error-proof voter lists and maintenance procedures, re-enfranchising ex-felons, greatly reducing the burden of registration, and enhancing the opportunity to vote by changing the period over which voting is conducted. All of which can and should, under the framework of law, be able to be done without in any way sacrificing the concerns of fraud and integrity of the process, particularly in the hi-tech capital of the world. For this country to be facing the kinds of problems we face-as many of you, I know, have heard from other people and the two presidents that you deal with who go around the world-for us to be facing this in this country is nothing short of an embarrassment. We are simply lucky that the people have great faith in our system and that we didn�t have a constitutional crisis.

That you know, but I think that it needs to be restated over and over and over again. It simply drops off the radar screen. It is not even a relevant consideration today in Washington, let alone around the country, except for the very people who may have to face this. That is a problem that we all have to figure out.

Second, in terms of our capacity, I want to stress that it is our hope that you will address a broad set of election issues that go directly to the health of our democracy-a report aimed at re-engaging our citizens in the process-and try and reach out to young people, and people of color, and others who are simply not even a part of this process or simply feel that it doesn�t matter to them that they get involved: to somehow call people to their duty, as John Gardner used to talk about. We hope that Common Cause will be in a position to help lead an effort to implement your recommendations in legislatures around the country as well as on Capitol Hill. We pledge to follow up your work if we make it a fundamental set of principles that go to this health of our democracy. We have grassroots activists in all parts of the country. We are doing extensively the same effort now by joining with many other budding groups that are trying to form coalitions to not do this separately. We think that one of the reasons that we are successful, even with the incremental reform the McCain-Feingold and hopefully Shays-Mean will represent in terms of campaign finance reform, was we actually worked very hard to develop broad-based coalitions to try to overcome the natural inclination of politicians to view political reform issues in terms of short-term partisan power struggles rather than in terms of fundamental issues of our democracy.

The one partnership that we are particularly pleased about is the potential with the Fels Center of Government at the University of Pennsylvania. We would like to pursue with them their proposal for implementing a voter fairness index that can be compiled periodically at the state level. We would like to contribute to that effort in a number of ways. I would also urge that-in the view of being here with the Civil Rights Division of the Justice Department-that every step we take look at the potential disparate impact on people who have various types of rights, including the average citizen, to participate.

Finally, as president of Common Cause I cannot come here and be remiss in failing to urge you to also mention campaign finance reform in your report. I know you don�t plan to discuss particular campaign finance reform proposals, nor do I propose that you do in your hearings or the report; however, I think that no mention of this issue would be an unfortunate omission that could diminish the public credibility of your findings. The reality is, as Bill Moyers said, "Today in America too often somebody�s civic worth is measured by their net worth." And that is in large part a function of how we allow money and politics to intersect. There always will be, but the question is, as so many of you have worked at this-I speak to some extent as a recovering elected official on this issue-we can do more to separate the connection between money and politics. I think various efforts at reform are necessary to do that. McCain-Feingold is a minimum, an incremental first step in getting there. There are many other things we need to do. But no effort aimed at reforming our elections to better serve the principles of one person, one vote, political equality and citizen participation can claim to be anywhere near complete if it doesn�t also eliminate the barrier or at least sever the unacceptably close relationship between money and power. I commend you for your efforts. We stand willing and would very much like to work with you. Thank you very much.

Mr. Lloyd Cutler: Thank you, Mr. Harshbarger. And the final witness on this panel, for her opening statement, is Pamela Karlan. Pamela Karlan is the Montgomery Professor of Public Interest Law at the Stanford Law School.

Ms. Pamela Karlan: Thank you very much. I very much appreciate the opportunity to speak with you today. For me this setting seems a particularly appropriate one to talk about the federal government�s power to insure equal voting rights because, as all of you probably know, President Lyndon Johnson was one of the primary architects of the Voting Rights Act of 1965, which, as he said, was one of the most monumental laws in the entire history of American freedom. That act really stands as a model of how effective federal action can be in protecting the franchise. It has transformed the landscape of American politics. Just to point to a couple of examples in the areas that you have been talking about, the Voting Rights Act has been used to prevent literacy tests. It has been used to prevent discriminatory purging. It has been used to prevent the movement of polling places into areas in which they would otherwise be inaccessible, particularly to minority citizens. And the act really has been the most successful civil rights act in American history. We owe a lot of the credit of that to President Johnson.

The central point I want to make today is that the most important Supreme Court decision of the past year, in terms of federal power to insure voting rights, is not Bush v. Gore. Bush v. Gore is really just a case that put onto the political map the fact that there is a dirty, ugly secret underneath American politics, which is that elections often don�t often work so well. Rather, the important case is a case that was announced the last day in February with very little fanfare, a case called Cook v. Gralike, in which the Supreme Court struck down Missouri�s putting various labels on the ballot next to candidates names as to whether or not they supported term limits.

The reason this case is so important is that it reaffirms once again the incredible power that Congress has under the elections clause of Article 1, Section 4, of the Constitution. Article 1, Section 4, provides that the time, place, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof, but the Congress may at any time, by law, make or alter such regulations. At least since the 1880s, the election clause has repeatedly been interpreted to give Congress virtually plenary power over a wide range of aspects relating to congressional elections.

In Cook v. Gralike itself, the Supreme Court summarized what it means to say the times, places, and manners of holding elections. This is what the Supreme Court said: "In our common sense view that term encompasses matters like notices, registrations, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns." At least since the 1880s, the Supreme Court has also held that when Congress uses its power under these conditions, it absolutely supersedes any contradictory state law. The elections clause gives Congress the right to supersede any state law to the contrary that deals with the regulation of congressional elections.

Several aspects of Congress�s election-clause power deserve, I think, some discussion. The first, suggested by language that I already quoted from in Cook v. Gralike and made even more explicit in Cook, is that the state�s power to regulate congressional elections is purely a creature of federal law. Unlike the problem that you see in other areas where there are arguments about federalism and the state�s Tenth Amendment right to resist commandeering by the federal government, there is no such claim with regard to federal elections. If you are talking about an election for the House or the Senate, there is no state claim that they have the right to regulate that election in contradiction to the elections clause and Congress�s regulation.

Second, a long series of cases, mostly involved in criminal prosecutions, hold that Congress�s power under the election clause extends to the regulation of all aspects of an election at which any congressional office is being filled. So, for example, you see prosecutions for intimidation of voters in cases where there was one congressional candidate on the ballot running uncontested and the intimidation was designed to prevent somebody from voting in a local election. Even those are covered because the Supreme Court has held that it is the integrity of the process, and not just the outcome of a congressional election, that is subject to congressional regulation under the elections clause.

In a related vein, although as a formal matter the election clause gives Congress power only to regulate elections only for the House or the Senate, as a practical matter, the election system that Congress puts in place would govern state and local elections as well. Even if you read Bush v. Gore as somehow giving states particular powers with regard to presidential elections, the plain fact is that there are no presidential elections in this country, except in the District of Columbia, in which there is not a congressional candidate on the ballot. Thus, by regulating the various inputs to the system for the congressional election, you kind of drag the other elections along, sometimes kicking and screaming, but often quite willingly.

Back to the experience: for example, under the Motor-Voter, or NVRA Law, that early government registration for federal elections, with two exceptions, every state uses a uniform system even for registering people for local and state elections. I would like to conclude, not by endorsing any particular solution, but rather by identifying some of the potential types of federal regulation that might be out there, and then we can talk about this in the question period.

First, you might look at federal legislation that regulates inputs. It might require or prohibit the use of a particular election device. If you are looking for an analogy in other federal election statutes: provisions of the Voting Rights Act ban the use of literacy tests or ban the requirement that you bring a [unclear] with you to say: �Scott is a good guy; he can vote too,� provisions that require bilingual ballots, and you heard some allusions to that on the previous panel. In a similar vein, Motor-Voter requires states to conduct voter registration in DMV offices and public assistance offices. So an example in the current context might be one that requires or prohibits the use of particular election systems.

A second kind of legislation might regulate electoral output. It might set particular standards of accuracy or fairness for states to meet and then leave it up to state and local governments to decide how they want to do that. There are not a lot of examples of that in current election law. There is one, which is: under the Motor-Voter law states are required to have some satellite registration facilities and then choose from among the variety of different ones what they want to do. So for example, Virginia uses the hunting and fishing licenses that have been subject to some back and forth on the last panel. Other states might use public libraries and the like. An example from another area that might be helpful here is that, in the context of child support payments, the federal government sets a standard for states to go after deadbeat moms and dads, and they have to achieve a certain success level in order to get federal funding. But it doesn�t then tell the states exactly how to pursue that end.

Third, legislation might choose from among a variety of different enforcement techniques. I will just give a couple of examples here. One is to empower the Civil Rights Division of the Department of Justice and the United States attorney general to file a suit against state or local governments that don�t comply. One advantage here is that you get around the problem of the Eleventh Amendment immunity that can sometimes be a problem for other kinds of lawsuits against states. A second kind of enforcement device is to allow individual citizens who have their rights denied to bring a lawsuit either for declaratory or injunctive relief or monetary damages. There are hundreds of cases out there in which this has been a successful tactic for enforcement, particularly under the Voting Rights Act. A third kind of mechanism, which Joe Rich alluded to, is to set up a federal administrative mechanism for insuring compliance like the pre-clearance provisions of Section 5 of the Voting Rights Act. You can imagine, for example, requiring all states, and not just covered states, to seek pre-clearance if they change the machines they use for voting, to make sure that only machines that don�t have a disparate impact get used. Finally, legislation might allow for local or administrative enforcement through funding cut-offs by the federal government if states don�t comply with set plans or standards in conducting election related activities.

When President Johnson spoke to Congress after Bloody Sunday in 1965, he said that the history of this country in large measure is the history of the expansion of the right to vote to all of our people. He then continued, "Many of the issues of civil rights are very complex and most difficult. But by this, there can and should be no argument: every American citizen must have an equal right to vote. There is no reason which can excuse the denial of that right. There is no duty that weighs heavier on us than the duty we have to insure that right."

I hope that my remarks today have suggested to you that, fortunately, we have the legal tools to insure that right, and it merely remains to be seen whether we have the political will to pursue it. Thank you.

Mr. Lloyd Cutler: Thank you very much, Professor Karlan. This side of the table, the commission side, has been vastly reinforced by the arrival of Secretary Bill Richardson who has not only been our Secretary of Energy but a member of Congress and a United Nations ambassador. So we are going to let him start off with questions. With the warning Bill, that we are trying to apply a five-minute rule per member of the commission, including the answers.

Mr. Bill Richardson: Thank you, Mr. Chairman. I think that this is a very valuable panel. I have one question. Dr. Karlan, you have been getting to a number of issues that I think are very important that we haven�t gotten to at other hearings, and I want to expand this.

There is a diversity of views in this panel. There are those like, perhaps, Professor Edley and I that would like to see a stronger federal role insure a lack of disenfranchisement of minority voters, etc., language problems, especially in states like Texas. Chairman Michel said a word that everyone kind of dashed off. He said money. Every bill that is in the Congress right now has a substantial amount of money. The issue is that to achieve the objectives that the three of you very aptly elucidated, money would help. And the issue then becomes: do you provide federal funds to states and counties? By the way, secretaries of state are not very important-I have run for office many a year-it is county clerks. That is what I would like; well, you don�t try to influence them, but those are the important ones that get the vote out.

And Edley also said, �Why aren�t we helping counties? Why aren�t we helping secretaries of state?� And you know, sometimes they don�t get along. We should really be getting to the grassroots. And here is my question: Let us assume there will be substantial amounts of money in any national effort. What is the extent of the strings that you attach to that money to achieve the objectives that each of you have elucidated?

Joe Rich, enforcement of civil rights laws . . . I don�t think that having a federal election observer at every poll is going to work. I don�t think there are enough people. But maybe there are other things.

Mr. Harshbarger, you spoke very eloquently about democracy and this being a tidbit, but specifically, how would you tie funds to achieve the objectives that the three of you have elucidated today?

And Dr. Karlan, what other steps-you gave us about seven-but if you noticed the state officials they talked about, well . . . you know we will have databases and electronic systems, that is all they want from the federal government it seems. Somehow we have to merge the interests of state officials and get those counties in. If we don�t get those counties, I believe we are going to be able to achieve any objective. I think you are getting to my very rambling question about what specific step the federal role might be with financial strings that most likely will be attached as part of any bill. The degree of the strings will be, probably, a big issue of contention.

Mr. Harshbarger: Let me just take three pieces of that. The first is that we are now supporting and participating in this whole Schumer, Brownback, McConnell, Torricelli and the irony of that particular partnership on the issue of election reform. Because of the goal here as I understand it-and Representative Conyers has also been focusing on this-is how you get some money out there to get the incentives started. Because otherwise, you have these wonderful people like Sharon Priest who sit here and tell you that they still need support no matter what else is involved. So the hope is to get some sort of . . . for Congress to provide some sort of matching grants that go out.

The second piece that everybody is learning, is that the Bureau of Election Standards and the FEC for years have been focusing on how you might do some of this sort of thing. So at least get that moving.

And the second thing for us, I think, is . . . I go to the citizen engagement piece. I don�t think any of this is going to work-really, really prop up the system-unless we can figure out how we can get citizens engaged, educated, and participating in monitoring the system. That is where somehow mobilizing broad coalitions, hopefully diverse coalitions, at the grassroots level who will monitor actively this process. Which means that thirdly, there has got to be a stick. There has got to be the capacity of the law enforcement officials. Everyone here on the panel preceding us said that in a nice way: that if you don�t have some sort of a hammer out here that gives you a capacity to make this system work, and face penalties if you don�t, it is not going to be successful. That still does not guarantee we achieve all of the goals. But if you don�t have the three pieces of the overriding framework, you have to have law, but law alone does not solve it if you don�t then have with that engaged, educated, preventive efforts by citizens to monitor with, some sort of enforcement capacity. We know how to do this in a lot of areas. Most people don�t want to go that route, with the whole federal overlay on that, but we also have state officials willing to do it. We do have mechanisms that we know how to get at this if money and some capacity to pull that money back are at stake.

Ms. Karlan: Well, I think there is also the question of political will to use the money appropriately. One of the problems in many of the places that you have the greatest level of disenfranchisement is that it benefits the people who are currently in office to have that level of disenfranchisement, and they will keep it that way.

I did litigation that involved voter registration in Arkansas in the 1980s. One of the county clerks in her deposition testimony said, �Well, do you consider voting a right or a privilege?� She said, �It is a privilege, and if people are not willing to show up during office hours to register, well, that is just too bad.� Until 1984, Virginia made it a crime for the registrar to take the books out of the county courthouse to register people at satellite sites. So it is not a question of money, it is also a question of how much we believe that every American ought to vote. One of the things that you saw even, for example, in the Supreme Court�s opinion of Bush against Gore, if you look at the concurrence for Chief Justice Rehnquist, he blamed all of the problems in Florida on the voters who did not follow the directions.

So it is not a question of money. But when it comes to the money, you know, I am a little bit of a technician here. One of the things, obviously, to do is to use the spending clause to condition the states� receipt of any funds on their full compliance with the laws that are already on the books and to set standards that also create legal rights for individuals to go in and enforce. The Justice Department has been very successful in the civil rights division of the voting section. However, ninety percent of the voting rights cases in this country are not brought by the government. Private individuals who have been denied their right to vote bring these cases. So I think giving those people a cause of action creates a really big stick that just giving the right to enforce to the federal government might not because it is so hard for them to go around to 180,000 precincts and see what is going on in each of them.

Mr. Rich: From our perspective we don�t look at it as funding. We don�t control the grants like the part of any legislation. I have seen some legislation proposed that would have the Justice Department be the agency that administers the grants. The Civil Rights Division would not do that, as I understand it. It would be done by our Office of Justice Programs, which does administer some grant programs.

Mr. Richardson: But Joe, stop being a bureaucrat. You know this issue well. Tell us what you think. You have done this for years.

Mr. Rich: As far as which strings should be attached? Let me tell you what I really wanted to say is that we always like to get more money for our enforcement programs. The attorney general in his initiative did provide eight new attorney slots. But anybody who enforces civil rights always wants more money, to have more enforcement clout. Did I leave something out?

Ms. Colleen McAndrews: Well, I am from California and there are several other members of the commission from California, as well as Senator Gorton from Washington. We in the West are very concerned over the problem that results when the national media announces the election results based on exit polling before our polls are closed in California. And I am curious, when I was reviewing the material that came today and heard you talking about the statutory and constitutional clauses, I am curious if any of you have ever discussed with your colleagues in the legal arena that are so expert in this area of voting, if any of you have focused on Article 2, Section 1, Clause 4: this rule, that seems very clear in the federal Constitution, that the day shall be the same throughout the states, . . . do you think there is any way that clause could be used for any sort of legal redress for this issue of early announcement? The polls are closing at different times. The Election Day is not the same throughout the states. The Election Day is later in the West, which allows for this pernicious effect. And to reiterate the effect, it actually limits voting. It limits access to the polls because people�s natural human inclination is not to show if they think that the results have already been decided by other parts of the country. Do any of you think that this could possibly be useful? Are there any cases that you know of in which this could be addressed in terms of a citizen from the West coming forward and suing to have the rights of western citizens to have the same sort of access to the polls?

Mr. Lloyd Cutler: Perhaps if Guam became a state.

Ms. Cleta Mitchell: It would have to be a week to have uniform voting. It is an interesting question and obviously a problem. Just to give one piece of data that just came out: the USC-CalTech Center did a poll that came out a couple of weeks ago, and they found that 75 percent of people polled thought there should be uniform polling hours across the country. Obviously, that creates a little bit of an administration problem as you heard from Secretary of State Priest. It is hard to get poll workers now. I don�t think you would want to delay to opening of polls on the East Coast. They open now in the major cities at 7 a.m. A delay would mean they open at 4 a.m. in California. And if you kept them open until 9 p.m., which is the general cut-off time in a lot of urban areas now, on the West Coast that would mean keeping them open until midnight on the East Coast. So you would basically double the number of hours that you have the polls open. And I don�t think you want to have them only open during working hours because that will depress turnout among people who are hourly workers and therefore can�t get off their jobs. Congress could certainly do it, but I think that it would be very expensive to do. I don�t think there is any cause of action under existing law by, for example, a voter in California who claims that by the time I was ready to go and vote, the exit polls from the East suggested the presidential election was over, and therefore I didn�t go to vote in local elections as well. I don�t think there is such a claim. Some people in Florida tried a claim like that the last time around because, as you know, the media reported immediately on the close of the polls in Florida, but the panhandle counties were under central time. As a result, the polls were still open there. That case went nowhere. But it may have gone nowhere in large part because it is moot.

The last point I will just make here is that however much power Congress gets under Article 1, Section 4, that power is limited by the First Amendment to the Constitution because, as I like to tell my students, larger numbers beat smaller numbers. Amendment 1 came after Article 1, and therefore you can�t really restrict what the media will do. All you can do is try and increase the opportunities that people have to vote by having longer hours. But other than that, I don�t think there is much that can be done.

Mr. Harshbarger: Allow me to just comment because, as you probably know, we are going through this same issue in campaign finance reform where every possible permutation that might make sensible policy is going to be challenged. I say this with all due respect to believing fully in the First Amendment, to anybody challenging any infringement here. What is fascinating to me is that this is an area where the national media ought to be solely and completely embarrassed more than anybody else. Not only did they do the exit polling; they did it wrong. They broadcast it wrong. It had clear effects after they had been warned by every scholar and everybody that has analyzed this. But if you try to restrict that-even Common Cause suggesting that the media try to be restricted here in some way, even applying the law-the National Association of Broadcasters, the networks, would revolt. Now the problem with that isn�t that you couldn�t have a set of policies that would. One of the benefits of having a longer period of time, is that exit polling becomes more difficult to impact and to have a way to have a decent policy. But I don�t see how you can do it in the present context. That is why I think that having some exercise of restraint, some exercise of education, some exercise in which people understand that we now know how greatly it affects it. But this is one area where the law is not going to be successful.

Ms. McAndrews: Except with uniform poll closing. If you can�t limit their speech, then . . .

Mr. Harshbarger: But they do exit polls. Many of the people here know this much better than I do. Exit polling starts at 9:00. Each of us has been in elections where we have been told at eleven o�clock in the morning, or one o�clock in the afternoon, or three o�clock that you are either winning or losing. And the people on this panel can speak to this better than I as to what exit polls meant in the last election.

Ms. Colleen McAndrews: Actually, one of the proposals that has come forward is that the exit polls are really based on getting some actual numbers. In order to plug into their formula, they have to test their exit polls, which are people coming out and telling the pollster how they voted, which is highly suspect in terms of reliability. That information has to be tested against some trial precincts where they actually have some results and they then know turnout and how the vote went. One of the suggestions has been to have some kind of prohibition on government-the poll administrators announcing any kind of results until a uniform time. If we can�t achieve a uniform time because of the logistical time zones around the nation, then maybe we could embargo any kind of results so they can�t plug them into the formula. As a nation, I think that because of the depressed turnout of the vote in the West, this is as important as a disabled person not being able to vote. It needs to be addressed and needs to be solved.

Mr. Harshbarger: I just think that the competitive nature of the media, over the last several years in particular, will thwart any policy initiative. It doesn�t mean that you shouldn�t say it, that you shouldn�t have aspirational guidelines, that you shouldn�t suggest a better way to do this in a broader manner. But given the dynamics that I have observed in the media over the past, at least the last several years, this is all about competition. We saw this after the 28-day watch after the election November 7th. You haven�t heard a thing. It is over, and suddenly six months later you can�t even get on the cable shows. Tonight, they are not going to talk about the commission. There may be other things that they are talking about in Washington. This is a difficult one to draw people�s attention to. It got everybody�s attention for 28 days as long as the ratings were up in November. But that is just being cynical, my apologies.

Ms. McAndrews: My five minutes are up.

Mr. Slade Gorton: I have just one question, and it is a follow-up to Colleen McAndrew�s. It would be constitutional, would it not, for us to instruct election officers, officers of the state, not to release any actual returns until say eleven o�clock Eastern time or even midnight Eastern time. So while the media could make what guesses and polling information that it wished, there would be no Eastern returns, in fact, affecting what happened in California on the West Coast.

Ms. Karlan: I think there might be a complication as to whether or not you could constitutionally embargo returns for things other than for congressional elections.

Mr. Slade Gorton: But for the presidency?

Ms. Karlan: For the presidency, it is not clear to me in light of reading how the Supreme Court construed Article 2, Section 1, in Bush against Gore, which was to say that the state legislatures have great authority there. So if New Hampshire wants to do that thing where-isn�t there some town in New Hampshire where they all vote at midnight, and they announce it-if New Hampshire wants to do that . . . it is not clear to me whether you could have a nationwide ban on the announcement of the presidency. On the election of Senate and Congress, I think the answer is �yes,� you could.

Mr. Slade Gorton: Thank you. That is all, Mr. Chairman.

Mr. Michel: Just a quick aside there. I would agree with, or I am interested with, Slade�s question here. Some years ago we attempted to do this in the Congress. We had a spirited debate between the East and West Coast. If you exclude Alaska and Hawaii, then . . . well, how about us; we are still in the Union. So it seems to me if we were to address that question, it would be only through that mechanism of prohibiting the official responsible from reporting the results of the election until some given time. It is a difficult one. I will pass.

Mr. Cutler: I have a related question, not related to the release of polling results or when the polls close, but the question of whether you would favor, and whether you think it would be constitutional, for Congress to mandate a federal election commission of some sort to supervise disputes about presidential elections and the selection of particular electors, as well as congressional elections. Your colleague Dean Sullivan, as you know, has expressed some thought that to regulate the presidential election you would need a constitutional amendment, which, even if it were a good idea, it would never pass. But do you think that there is a statutory basis on which Congress could do that? And do you think it is a good idea? Several members of the previous commission, the secretaries of state, all thought-or one of them at least, Mr. Ward-thought it was a bad idea.

Ms. Karlan: I think it is an unclear question. The reason I say that it is unclear is even looking at the Electoral Count Act of 1887, which is the current act, it is not clear to me that act is constitutional if you read it up against the Twelfth Amendment. They always used to tell me in english class as a small child: avoid the passive voice. If you read the Twelfth Amendment, the Twelfth Amendment simply says that the ballot of electoral votes shall be counted. It doesn�t say by whom, and it doesn�t say under what standard. Congress has filled in those interstices through the Electoral Count Act of 1887 by setting up a very detailed mechanism. It is not clear to me that mechanism is constitutional. If you wanted to come up with a way of doing it without a constitutional amendment, I think the only way of doing it, that I can see, would be either to give to states a sufficient carrot and stick under the spending clause to get them to agree to it, which, I think, is still good law under South Dakota against Dole, or second to have Congress make sufficient factual findings that we could find that Congress� use of a nationwide system here was necessary to achieve equal protection, using Congress�s enforcement clause powers under Section Five of the Fourteenth Amendment. So those are the ways I think that you could do it constitutionally without getting into a constitutional amendment. I think it would be a good idea for state statutes to be passed that expressly contemplate how they are going to deal with recounts in close federal elections, given that there are a series of dates that Congress has set going from January 5 back to December 18 back to December 12. So one thing, I think, that it would be appropriate for Congress to do, given that those statutes are appropriate, is for them to require states to come up with some re-count system. Whether Congress wants to do it nationwide, given the differences in technologies, I honestly can�t answer.

Mr. Edley: But if it is constitutional for Congress to have laid out the timeline that you just suggested going back to December 12. "If"-I understand that it is a big "if"-would it then also be constitutional for Congress to require that states either amend their re-count provisions in order to accommodate the congressional schedule or to adopt, for purposes of federal elections, a default re-count mechanism specified by the Congress?

Ms. Karlan: Absolutely. There has been some talk . . . there was a case in the 1930s about the Federal Corrupt Practices Act that seemed to almost suggest that Article One, Section Four�s power also somehow reached to the presidential election as well as to the congressional elections. I just worry a little bit given that three justices of the Supreme Court seem to have taken such a robust view of Article 2, Section 1, about using the Article 1 power to get around that.

Mr. Chris Edley: If I can stick with this for a second . . . I assume, also, we could recommend using the spending clause to provide an incentive for the embargo of results issue.

With respect to federal protections for people with disabilities or limited English proficiency, I take it the constitutional predicate for, that is not in the equal protection clause, but is instead in the plenary power to regulate federal elections?

Ms. Karlan: It is in the plenary power to regulate federal elections. I would think it risky to rest it on the equal protection clause after the Supreme Court�s recent decision in University of Alabama v. Garrett, which seems to suggest unintentional, harsh, nasty treatment of disabled people does not violate the Constitution. It has to be intentional and irrational. I think, though, that also it could be done under Congress�s Section 5 power to enforce the due process clause; which is to say, the Supreme Court has said once you create the right to vote, it is a fundamental right, and strict scrutiny should apply, even though you didn�t need to allow people to vote in the first instance. That is how the Supreme Court decided the literacy test basis and the like. So it might be that Congress could use, in addition to its spending clause and its Article One power, its Section 5 power with regard to enforcing the due process clause but not the equal protection clause.

Mr. Chris Edley: But would it be a reasonableness test? You are saying a strict scrutiny test might apply.

Ms. Karlan: No, what I am saying is that because . . .

Mr. Chris Edley: I mean for example, if Arkansas says, �Well, we have given everybody the right to vote, but we are really sorry, we love this county financing so much that the counties can�t afford to make the polling places accessible, or can�t afford to hire translators; well, sorry.�

Ms. Karlan: Well, I think a little bit after Bush v. Gore, and also based on the 1960s cases about the fundamental rights strand of equal protection/due process, I think that they can�t do that. This is a fundamental difference, for example, between voting and schools. The Supreme Court held in San Antonio v. Rodriguez that you could have a kind of crazy quilt system for financing schools because education was not, itself, a fundamental right. Therefore the disparities in school financing did not violate the equal protection clause. Here, however, the Supreme Court has held that once the right to vote in an election has been given, it becomes a fundamental right of all qualified voters. I think that continuing to use a system that denies people the right to vote cannot be justified on the grounds that we have a historical preference for decentralization.

Mr. Edley: Let me shift gears and see if I can ask for a little bit of help on the question that Governor Richardson, sorry, Secretary, Ambassador, Congressman . . .and that gets to this enforcement issue because I understand these wonderful aspirational statements that we heard from the state officials with respect to enforcement. If I understand your position, with limited resources in DOJ . . . but I have to tell you that wearing my hat as a member of the U.S. Commission on Civil Rights, just the repeated stories about people who go into the voting places, and even in covered jurisdictions, can�t get the help with translation or materials, or despite the federal statutes, find polling places that are inaccessible or where there has not been an effort to create some kind of accommodation for them. So I am really searching for practical ideas to enforce even the guarantees that are already on the books. I mean, do we just need wall-to-wall litigators? Do you have any thoughts about how we could see to it that the states and counties are actually living up to the letter of the law?

Mr. Harshbarger: It is time for me to bring the level back to, not in my view, the more practical. . .

Mr. Edley: There were never any problems in Massachusetts while you were AG, I�m sure. . .

Mr. Harshbarger: Of course we had them all solved. I am still looking for the 90,000 ballots that I think I had cast for me in 1998. Somewhere there are hanging chads out there that I think would have turned it the other way.

I want to stress the practical side here. I think what you heard from the secretaries of state and now having listened and observed this for a while, these are very caring people. You all know that; it sounds almost gratuitous. But you see what they are now prepared, as public officials, to try to do to fulfill a responsibility that is now achieving a great deal of focus. Many are elected. Many are, therefore, being held accountable. Many see this as opportunities, rightly, for them to have their offices take a greater role in education, in various ways. I think, therefore, to me one of the pieces is that the spending piece will have a great deal of impact, if it can move. Because the best practices would begin to develop and be showcased. I think that it is one thing.

Secondly, these folks will become the focus of attention in the next election. People will look at their states to see what they are doing in these areas. But I think, thirdly, as a practical matter: if I were doing this, I would try to see how I could get the state attorneys general involved with delegated powers of enforcement, which we do under some statutes where the Justice Department could designate and delegate to state attorneys general the power to do the enforcement on the one hand. I think the individual citizen cause of actions would be very important because in other areas that has led to enforcement and also pushes public enforcement people to take action because of the potential for individual action to be brought. But thirdly, fundamentally-and this does sound aspirational-I think it is very practical. I think you are going to hear from the NAACP, Hilary Shelton, and other people in the civil rights community. I believe this is for the reform community, generally, the more traditional reform community, this is an opportunity to build bridges and form coalitions that we have been lacking for a long time and to have the agenda set by groups that really have grassroots stakes in this process. That monitoring, that piece, when the money is there, when the monitoring is one with public officials who can be held accountable . . . I mean, it sounds trite, but if the citizens don�t mobilize, if the citizens just stay angry or get apathetic and cynical and drop out, then you can create all the structures that we want right now and you are hoping for these good public officials do their job. But otherwise, it is going to take a countervailing force here-generally seen as the people appropriately mobilize-then the whole power will be accountable. That is where some clout in spending and causes of action to be able to move against officials, in my view, will be the solution here.

Ms. Karlan: Let me give a very concrete example of something that could be done. One of the things that we saw in the last census is because block grants to the states are cued to the number of people in the states, states were much more aggressive about going out there and counting the traditional number counted. If you lived where I lived, all of the buses had signs in Spanish on them saying: "You need to be counted. Counting is money for our communities." If Congress were to tie some of the spending that it gives to states on a per capita basis to the number of voters who participated in the last election in that state, it would create some incentive for the states actually to get people out and get them to vote. Right now there is no incentive and there is the countervailing force that I alluded to in my answer to Secretary, Ambassador, Representative, Governor and Pope Richardson�s question that there is some countervailing pressure the other way. People who are elected know who elected them and they don�t have an incentive to bring other people into the system necessarily. So I think something that creates a financial incentive for the states and says: look, if you increase your voter participation in elections by x percent, you get more money. This might actually create some incentive to make sure that you get people actually to the polls and get them voting.

Ms. Ravitch: Thank you. I just wanted to go back for just a second. I�m not sure I even need a response from any of you to the discussion earlier about polling that troubles me. I don�t think it is just the Election Night announcements that curtail voting, which I suspect it must in California and places west. But I think that polling has persuaded many Americans that their candidate can�t win, unless it is such a close election that they get a sense of efficacy. But in an election that you see consistently that your candidate is ten points behind, ten points behind, I believe that a lot of people get the impression that the election was decided by somebody else and that their vote doesn�t count and that their participation is unimportant. These are very, very negative impacts on the practice of our democracy. I don�t frankly know from a First Amendment point of view what we should do or say or even think about this, other than to go to the comments that my colleague John Seigenthaler made at our last hearing, which was to get the message out to people: �Don�t talk to pollsters. Don�t answer their questions. Screw up their polls so that they can�t screw up our electoral process.� But I noticed in the Caltech poll that 80 percent of the public said to the pollsters that they think there should be some restrictions on the media�s reporting of results before the polls are closed. But, as I said, I think that only deals with half of the problem.

Ms. Karlan: I think that the real problem that you have put your finger on is the lack of competitive elections. People who think that their votes are not going to count don�t go the polls. Obviously, this is an even broader question than the campaign finance question that Scott raised earlier. But one of the reasons we have so many uncompetitive elections in this country is because of areas other than the actual voting, which is the way we district. A third of congressional seats are really not contested by one of the major political parties, and everybody knows that. In some states forty percent of the state legislature seats are uncontested. That is a product of the way we do our districting. We have incumbent protection of a particularly strong kind in America ranging from campaign financing to franking to free media and the like. Those sorts of questions, I think, are much more responsible for voters thinking that their vote doesn�t count than any amount of watching television at 7 pm and thinking, �Oh, I was going to vote after dinner, but now I am not.� So I think that if we made elections more competitive in lots of different ways, then that would encourage people to vote, and they would not care so much about the polls because they would have the sense that going to the polls actually makes a difference. But I think as long as elections are not competitive, then that is where the problem is, and not in the reporting, that they are not competitive.

Mr. Harshbarger: The only comment I want to make on this, and I don�t want to replay the campaign finance reform except to say that one of the earliest tests, the way that people get excluded from consideration and credibility is: have they raised the money. If they have not raised the money, then television will not cover them. People won�t support them. It happened in the Republican presidential primary long before the results were tabulated and only the movement of the McCain forces had the people. When the people finally voted, actually, it trumped money to some extent.

But I want to switch. Go to Massachusetts, my home state. Liberal, progressive Massachusetts passed the most comprehensive campaign finance reform law in the country except for Maine and Arizona in 1998. To this day, a liberal, progressive Democratic legislature has refused to fund it adequately. That is to say, the limits are already in place where you essentially have 80 percent of the offices were not even contested for state elected officials. Why should people think that they ought to get involved? This is not about . . .there is something else going on here other than simply money. It is about people. It is not Democrats and Republicans; it is people who have or are in positions of authority are reluctant to give it up and challenge it. When people in a democracy do not believe that contested elections are a central part of our democracy, the result is greater erosion that we all face. It is going on right now. With all due respect, Massachusetts still faces that issue. Will they adequately fund something? The people overwhelmingly voted for this, and it is now being resisted because the public officials do not think they will be held accountable over time.

Mr. Seigenthaler: I don�t want to waste a great deal of time on a question that sounds na�ve, but I have two questions for Mr. Harshbarger. The first one has to do with that suggestion. If you look at this whole issue of exit polling, and we will have a chance to go into it with the media in our next session. If you look at it, you find that there are problems that the national media are having with credibility and with accuracy. These problems relate in some ways to such things as the procedures in many states for early voting. For unless you man the polls, or people the polls, around the clocks for thirty to sixty days in advance of the election, then the exit polling is somewhat skewed. In Oregon you have nothing but mail-in ballots, which makes it even more difficult for the national networks.

I just wondered if Common Cause is interested in voter education. League of Women Voters is interested in voter education. Secretaries of state are all interested in voter education. Doesn�t it make some sense to include into that, into the mix of all of that education, the suggestion that people have a right not to participate in exit polls that substantially effect the outcome of elections in other time zones, particularly those that are running for offices at the bottom of the ballot. Maybe that is a na�ve suggestion, but it strikes me that people walking out of the voting place saying �no� goes a long way toward making the networks understand that the credibility and accuracy of their work is in doubt.

Mr. Harshbarger: I don�t disagree at all. It is a part of this whole education thing. We talk about civic engagement. It sounds like real general terms, but we do know very specific, concrete things that we have to develop to help people understand what their rights are or what they can do. To follow with your example, I would love to hear the pollsters refer to this. People say that they don�t like to answer polls, but they all answer polls. It is a phenomenon like telemarketing. Somehow, it exists there. I don�t know quite what the answer is. But I do think, I think that the point that you were stressing-and the two of you have here, which I am sure we agree with-there is a dearth of voter education that is shocking in this country. All of the studies that you refer to and when you start to look at the examples and when you see some of the affidavits from the Florida cases and other places around the country, it is almost impossible to believe that something-if it wasn�t unintentional and most cases it probably wasn�t intentional-the things that are happening. It is either that we are not doing a good job of voters knowing what their rights are or how they challenge something in a timely manner. All of the due process things that many of us take for granted, as fundamental knowledge citizens have, that I am very hopeful that we, and many others, can focus on through our educational efforts in the short term-and hope that Congress will also do something-that is a piece that people also need to think about helping to fund as well because that money goes first. Prevention money goes first, before anything else goes, anytime there is a budget crunch for any agency, public or private or nonprofit.

Mr. Seigenthaler: Let me just move for a moment, very briefly, to the issue of federal legislation. As I listened and have listened over the past three sessions to the secretaries of state, there is, as you expressed a moment ago, care and concern on the part of good people for the integrity of the ballot. At the same time, it strikes me that there has been a great deal of self-satisfaction expressed by almost all of them in the systems that operate in their own states at present. This means that to the extent that abuse is built in to that system, it will continue in the absence of some razor-thin election, as occurred in Florida. Florida, embarrassed, has now acted to correct its abuses. Which brings me to the question of whether Common Cause plans to embrace any of the legislative initiatives, whether it is McConnell-Schumer, which provides 2.5 billion dollars with substantial federal strings-I think not substantial enough, but that is my own opinion-what is the organization�s plan toward offering support for legislation that does limit states in their prerogatives with regard to such things as accurate and effective maintenance of voting rolls, providing provisional ballots, timely absentee and overseas balloting, and the rest?

Mr. Harshbarger: We intend to. What I stressed in my testimony is that we are actually and actively engaged now because we hope that Congress will move. We don�t want them to just keep waiting if there are frameworks that could be established that would not preclude other things from occurring. It is sort of what we are seeing perhaps developing with Schumer-McConnell. On the other hand, everybody sees the gaps in that. We also are trying how to strengthen that in the short term. The other side of it, I think we are waiting-and I say this here and don�t say this gratuitously-I think we are waiting to see what this commission, representing a broad-based, bipartisan, experienced approach, comes to. What sort of fundamental principles and issues do you embrace? Our challenge and my responsibility with other leaders is to build a coalition that will get in the fray and push this thing: monitor, pressure, and develop federal, state, and local grassroots advocacy that supports principles. If it is not just technology, then maybe that is important. But if it is about these principles that go to making a healthy democracy (and I am sure you are going in that direction) then we await that. But right now my concern is that I don�t want to wait because even the congress people and senators that want to move this are having a hard time finding where in this agenda. We don�t want to sacrifice campaign finance reform. You have a tax package. You have an energy policy. You have health care and education. There are plenty of reasons for this thing to sort of slide. So when you get some leaders, bipartisan, willing to push this. We are hoping that you will keep on a time schedule that will come forward also with some principles and details that we can support. We see our obligation to you and hope that we can fulfill it.

Mr. Steele: I really have just a two-parter. The first one is that there has been some conversation about intimidation and things like that. Mr. Rich, you referred to the voter federal observer program. Can you give me some sense of what type of evidence of substantive intimidation, if you will, is there out there? In this day and age you clearly don�t have the laws on the book that required you to be able to sign your name and things like that. In what form is this intimidation taking place, and how is it impacting the constitutional right to vote?

Mr. Rich: I can give you a few examples that come up in our observer program and in a case that was brought about eight or nine years ago. One, this case involved a campaign in which postcards were sent out targeted to minority voters, black voters, warning them of how the criminal provisions might apply to them if they voted falsely or were not registered. In other words, it intimidated them and chilled their willingness to vote. We brought a case under the Voting Rights Act to halt that after the election. We did not have time to do it before the election. But that is an example of one thing.

Another thing that we have seen some of is this: campaign workers going to the polls with video cameras and videotaping minority voters. This sends the signal that we are going to get you on the tape, and again subtly chilling the vote. We have not brought a case in that situation, but we have written strong letters indicating that we thought that it was a problem. For the most part, when we raise the issue with local officials, they will take steps to halt that type of activity by campaign workers. I don�t think we see the type of blatant intimidation that was the real cause and led to the Voting Rights Act. But certainly the need for observers remains. I think, as I said earlier, the deterrence factor is most important. When we can get to the places where we think there may be problems-and this often would be a situation in which there are black/white races and there are racial tensions building around that race and threats of intimidation-our presence can often lead to a much fairer election, in my opinion.

Mr. Steele: Would you say that the intimidation in those black/white cases runs both ways? In other words, it is not just black folks being intimidated, but white voters in a predominately black area being intimidated?

Mr. Rich: I think that we have seen in the states that we cover, which are primarily the southern states, it has been more the intimidation of black voters, but it is not exclusively that.

Ms. Karlan: There are a fair number of examples of the postcard scheme that Joe was talking about. Political campaigns target minority neighborhoods and send people scary notices. A lot of people are not sure exactly what they are being warned against, so they don�t go to the polls. Another example is the placement of polling places themselves. Just to give a couple of examples: when I was doing voter registration litigation in Mississippi in the late 1980s, in some places you voted in the basement next to the county jail. Some people found that very intimidating. In eastern Arkansas I litigated a case there where they moved the polling place in the largest black precinct in West Helena ten times in two years: once moving it outside the precinct itself and requiring black voters to cross the highway. You see a lot of that.

Another thing that people complain a lot about is the presence of armed police officers at polling places. Differential application of identification requirements, that is also viewed as intimidating, especially if you are talking about a rural community where many of the people don�t have drivers licenses or haven�t driven in so long that they don�t know where their driver�s licenses are. They are then asked for picture identification when they get to the polls. They do that. My clients have told me that they view that as intimidation because they expect that, and I think rightly so, if they were affluent white voters in a predominately white precinct, they would not be asked for these items. That is the kind of thing you see. You don�t see a lot of what people saw in 1963, 1964, 1965.

Mr. Harshbarger: Let me just say that you are going to hear examples-and we are certainly cutting into the time of Hilary and others who have been at least examining this at one level and what happened this time-there are obviously people who think similar things may have happened around fraud and other parts. I hope that you would find a way with the staff or other to do what you could to probe those. Some of those are sort of shocking on the one hand. On the other side, there is this whole area of indifference that is surprising to everybody as well. I think when you think about recommendations here, the two political parties have a huge stake in this and it should not be a partisan or ideological issue. I am fascinated at how in Washington it is almost being argued as an ideological issue when we can�t have too many people vote because that will favor the Democrats. My own experience has been that it is not true, but I don�t know.

But I think the parties would be the natural allies here in terms of how you develop mechanisms to monitor and reach out to people who you are trying to get to register. The second group that I urge you to turn to is corporate America. There is a lot that has been done around juries with corporate America about release time, about pro bono and other kinds of support that could be done here, education programs. The media could certainly engage-if they can do exit polling and spend the money-and maybe you could encourage them to spend a lot more time to comply somewhat with Paul Taylor�s Alliance for Better Campaigns proposal about some kind of voluntary, if not mandatory, free television time around education. I think the tools we could use that we brought into play after the fact of November 7 might be applied backwards. It is something that everybody could play a role in. I think the corporate business community and the parties have institutionally as much at stake in this. We also think that citizens also need to be heard and be there to balance that.

Mr. Steele: My second question is just a real short question and a quick answer. Motor-Voter . . . has it worked? Is it good? Does it need to change?

Ms. Karlan: The evidence is a little mixed on Motor-Voter. It has increased registration dramatically, but it is not clear that it has increased participation that much. In part this is because maybe the people that are being registered under Motor-Voter are a group that wouldn�t be voting as much, generally. The evidence is mixed on how much of an effect it has had.

Mr. Harshbarger: I think it has been positive. I think it encourages people. I think it eliminates barriers, both direct and indirect. There are many other things that we have to do, obviously. It shows that not only one piece of legislation alone solves this problem. But I think that eliminating direct and indirect barriers that are unnecessary and don�t infringe upon security and integrity issues should always be encouraged.

Mr. Rich: I would agree that from our perspective the NVRA is a very important statute in providing the right to vote. It, not only permits more opportunities to get registered, but also prohibit certain activities that would remove people from voting rolls. From our perspective it is a very important law. But I think there is a lot of confusion about the many provisions. That is one of the challenges I think the FEC and we face, with coming up with best practices in that area.

Mr. Philip Zelikow: At this time the second panel is the beneficiary of the gratitude of this commission. I think I speak for all of us in saying how particularly grateful we are, not only for all of your testimony and for coming here sometimes long distances, but from Mr. Harshbarger�s pledge to mobilize thousands of citizens from one end of the country to the other, if we can actually come up with any good ideas. That is an offer that I hope we will be able to take him up on.