Witnesses:

Hilary Shelton, NAACP; James Gashel, National Federation of the Blind; Kenneth Huff, National Board Member, AARP; and Rodolfo de la Garza, University of Texas

Mr. Philip Zelikow: We�re beginning with panel three this afternoon. A major theme of this panel is the relationship of civil rights questions to the problem of federal election reform. Certainly a fitting place to begin a discussion on such a subject is with our first witness, Hilary Shelton, who is the director to the Washington Bureau of the NAACP. Mr. Shelton.

Mr. Hilary Shelton: Thank you very much, and good afternoon Chairmen Michel and Cutler. Thank you for the opportunity to come before you this morning on behalf of the National Association for the Advancement of Colored People (NAACP) and our seventeen hundred branches in fifty states, the District of Columbia, Germany, Japan, and Korea. The NAACP is deeply appreciative of your interest in this problem surrounding last year�s presidential election and what can be done to ensure that we learn from our past mistakes. We believe that this is a matter of grave concern to our nation and its people, the entire country. We believe throughout the United States millions of American citizens were, for one reason or another, not able to cast their votes and have their votes counted.

Furthermore, the NAACP strongly believes that many of the voting irregularities that occurred disproportionately were in communities of color. So it was ethnic minority Americans who were in disparate numbers excluded from having their voices heard. There was, as best, as we have been able to determine, substantial unresolved allegations across the country of massive voter disenfranchisement in African-American, Hispanic-American, Haitian-American, and Jewish communities. The election appeared to have been conducted in such a manner that many of those same communities now believe unequivocally that it was unfair, illegal, immoral, and undemocratic. Every survey that we have found that was conducted after the election, regardless of where it was in the United States, has shown the greater the percentage of black voters in a precinct, the greater was the likelihood that a significant number of ballots of those voters were never counted. It was also a greater likelihood that computer equipment, when available at such polling places, was not adequate or on par with what was available and is in use in polling places in precincts that had a relatively low or inconsequential number of African-American voters.

Ask the thousands upon thousands of people who now question if their vote was ever counted often, because of where they live or the color of their skin, and they will tell you without hesitation that they feel violated and robbed. Since the election, the NAACP has received testimony, affidavits, and reports of voter fraud, voter intimidation, and technical and procedural barriers that resulted in ballots not being cast or counted. Throughout the country there were clearly cases of disparate treatment between black and white voters: intimidation by election officials, bureaucratic snafus, and ballot boxes that were left unattended for several days after the election. Thousands of people could not vote because they were told they were not registered when, in fact, they were. Many male voters, including a Catholic priest, were not allowed to vote because they were told that they were convicted felons when, in fact, they were not. Countless others were told that even though they were in line at the polls at the time of the closing, they would not be able to cast their votes. We have also come across evidence showing that polling sites were moved without timely notice or no notice at all. Voters were disenfranchised by some polls closing early. Some polling places had no bilingual ballots, and non-English speaking voters were denied assistance from translators. There was a disproportionate purging of votes in predominately ethnic minority precincts in several areas and several thousands of reports of inadequately trained poll workers.

The NAACP has therefore developed a set of policies and procedures we are asking every state, as well as the federal government, to adopt prior to the next election.

First, to ensure non-discriminatory equal-access to elector processes for all voters including ethnic minorities, the elderly, handicapped, disabled individuals, overseas citizens, and members of the U.S. armed services. Secondly, to modernize voting machines, counting equipment, and the use of provisional ballots to ensure that well-defined, uniform procedures are in place so that the genuine intentions of the voters are reflected in their ballots. Thirdly, to provide necessary and adequate funding and resources to modernize and upgrade all equipment statewide so that the voting systems are uniform and consistent throughout each state. Fourth, to retrain all poll workers and election officials so that there is a fair, equal, and uniform treatment of voters across the state. Five, to launch an aggressive voter education initiative so that potential, new, and existing voters are knowledgeable on how to use the equipment correctly and so their genuine intent can be easily determined. Six, to expand poll workers training and recruiting programs utilizing the best practices from across the nation. To put in place systems to maintain and easily access correct and up-to-date voter roles using the latest technology. To enhance the integrity and timeliness of absentee ballots. To re-examine all existing voting policies and procedures to ensure that each state and every municipality therein is in full compliance with the Voting Accessibility for the Elderly and Handicapped Act, the Voting Rights Act of 1965, and the National Voter Registration Act of 1993. Ten, to work to identify and eliminate practices that might be perceived as intimidating to certain sectors of the population. Number eleven, to establish a clear standard of bilingual ballots and the use of interpreters for language minorities and the disabled. Finally, to re-examine, simplify, and standardize voter re-enfranchisement laws so that every American who is not incarcerated who wishes to vote can do so.

The NAACP realizes that these twelve proposals, taken at once, may be perceived by some as a tall order, and while we certainly feel that any one of them, if implemented alone, would help the current situation, I cannot stress enough the need to enact all of these policies sooner rather than later. If even one American is disenfranchised in the next round of elections in 2002, that is one too many.

Only by adopting a comprehensive package of voting reform, will we be able to say that we have done all that we can do to make sure that our democracy is working [in each state]. In short, the entire NAACP organization is determined to follow through on this issue and do all that we can do to see to it that nothing like this ever happens again. It is no longer legal to have this kind of discrimination occur in our society, but indeed, we found out on November 2000 it does still happen. So, again, Mr. Chairman, I thank you for the opportunity to participate in this and would like to speak with you in greater detail about how we came to the positions we did and the many experiences that came out of the series of hearings the NAACP held across the country right after the last election. Thank you very much.

Philip Zelikow: Thank you, Mr. Shelton. Our next witness on this panel is James Gashel. Mr. Gashel is the Director of Governmental Affairs at the National Federation of the Blind. Thank you for joining us today.

Mr. James Gashel: Thank you very much, Mr. Chairman. I am especially pleased to appear before this commission. Let me just begin by saying I won�t see the green light, and I for sure can�t see the red light. So, what I�m going to do is ask you to use an affirmative oral notice policy, and that will be fine with me and I�m sure it will be fine for you.

Mr. Zelikow: We are an equal access commission.

Mr. Gashel: I am especially pleased to be here in front of this commission because issues surrounding blindness and voting are often very sensitive, and frankly, they tend to arise to some degree in every single election cycle. I just want to begin there. Basically, I�m going to have three points to make this afternoon and they are these: one, that whatever you do you should affirm and uphold the voter assistance policy, which is in the Voting Rights Act. We don�t want to disturb that policy, and I�ll explain briefly why. Secondly, that just declaring that the voting process and polls must be accessible isn�t nearly enough, and I�ll explain that. And third, there must be an affirmative statement that the voting technology itself must be designed for independent non-visual use.

Okay, so let me start with the voter assistance method. That was enacted as part of the Voting Rights Act in 1982 because prior to that time, in many jurisdictions, poll workers were monitoring the vote of blind people. It happened to me, and it happened to all kinds of blind people all over the country. We got the Voting Rights Act to say, now, that the blind person has the right to have a person of their own choosing accompany them in the booth and no monitoring of the vote. Well, that system works and works well, certainly for people of my age and older. That�s what we are used to, and that�s the way I�ve voted every time I voted; and so without better technology that�s going to be a way that people vote for many, many years to come, and we don�t want to do anything to disturb that. So, there are some people who are always going to be somewhat computer phobic; and they�re going to want assistance, and there isn�t anything we can do about that. And some people just become blind a day or two before the election, and they�re going to want assistance. They�re not used to dealing with the technology that we might have to. So the voter assistance method needs to be upheld.

As to the point about simply saying �accessibility� and hoping that it�ll happen, that isn�t going to be good enough. There are all kinds of standards out there relative to accessibility, and so if this commission were simply to declare that the voting process and methods should be accessible to and usable by persons with disabilities, that�s subject to lots of interpretation and a lot of alternatives. And frankly, some of the alternatives are not what we would view as accessible alternatives. So, I would challenge you to do more than that, to actually be somewhat specific in declaring what is accessible and what isn�t accessible, and my next point hopes to give you some guidance on that.

The voting technology itself should be designed and equipped for independent, non-visual use. Frankly, when it comes to methods of voting, we�re often talking about technology at this point in time, and that�s what a lot of jurisdictions are looking at purchasing. Independent, non-visual use is critical. Many methods don�t provide for independence. I�ve seen some methods where you take . . . it�s the optical scan system, and they put an overlay with some slots in it, and you�re supposed to use your pencil and mark in the middle of the overlay. You can�t determine whether you voted for Gore, Bush, or Buchannan or whoever by that because you have no way of verifying how you voted. The only way to accomplish independent, non-visual use is by adapting voting technology. Even touch screens can be adapted. They can put a raised series of buttons on those and I�ve seen the technology. There are systems out there that I can use, and it will talk to me and it will tell me, �Did you mean to vote for Gore or did you mean to vote for Bush?� And I can confirm that vote. You can imagine this can also be done with a telephone touch-tone keypad, there are many ways to do this, but the principle needs to be enunciated for independent, non-visual use.

Frankly, I would simply say that many, many blind people, myself included, have often been intimidated around going to the polls because you don�t know what kind of a hassle you�re going to run onto with the uneducated poll workers who don�t know whether you�re entitled to assistance or not, and a lot of people just don�t want to deal with the problem of it all. Voting is not a friendly process, right now, if you�re blind. We want to remedy that. We know that the technology that is put into place, as a result of the 2000 fiasco, will be in place for many decades to come, and so now is the opportunity for commissions such as this, in the Congress and the state legislatures, to realize that there are blind people out there who are going to need to use the new technology. The new technology can be cost-effectively configured in a way that we can use it, and that should be done. Thank you very much.

Philip Zelikow: Thank you, Mr. Gashel. You needed no reminder. Your sense of timing was uncanny. Our next witness is Kenneth Huff. Kenneth Huff serves as a member of the Board of Directors of the American Association of Retired People (AARP). Mr. Huff.

Mr. Kenneth Huff: Thank you, Mr. Chairman and ladies and gentleman of this commission. As you say, I am Kenneth Huff, senior of the AARP Board of Directors, and I thank you for this opportunity to share our views regarding the federal election reform and the federal civil rights protections. Technology can make the election system operate more effectively and efficiently but how the law is interpreted and implemented has a separate and equally important impact. Sadly, the many inconsistencies revealed in voting systems across the nation in the 2000 presidential election threaten the integrity of the election process. AARP believes they result from a complex mix of factors such as inconsistent application of law and regulatory requirements; outmoded data management systems and voting equipment; cultural biases; improper or inadequate training for election officials, co-workers, and voters. Today I will highlight for you a few major problems resulting from impaired implementation strategies across the states.

For AARP these principle areas of concern fit into three general categories: first, the federal statutory civil rights and accessibility issues; secondly, the voter registration administration; and finally, the poll-side administration and balloting systems. The major federal statutes governing voting in this country are the Voting Rights Act, the Voting Accessibility for the Elderly and Handicapped Act of 1984, the Americans with Disabilities Act, and the National Voter Registration Act. These established voting rights and registration policy. These laws only affirm the rights of eligible persons to register and to vote; they do not establish the details of these processes. Generally, states and other jurisdiction do that. Technology and administrative rules are the primary implementation tools of policy intended in the law. Some core democratic principles were put at risk in the latest election: that is that every eligible citizen who wants to vote should be able to do so; that they should be able to vote in a non-threatening environment; that they should have reasonable confidence their vote will be counted; and that they should expect the vote counted to accurately reflect their voting preferences. Because a major problem of voting and election reform in this country are often related to limited local and state financial resources, AARP believes that the federal government has a role to play.

The association believes that federal funding will be essential to implementing any reforms; however, we also believe that any federal subsidy should be conditioned upon the satisfaction of best practices aimed at eliminating barriers to voter participation. The climate of registration and polling sites directly affect the use of new voting technology. The AARP believes that the current federal civil rights and voting statues are adequate to move in this direction if reform encourages adoption of practical, standardized procedures in voter registration and balloting, prioritizing funds to areas that demonstrate significant problems-demonstrated problems to be objectively defined by parties other than sitting legislators and administrators-an initiative that threatens all classes of citizens the same. Since the NVRA became effective in 1995, states have had mixed rates of increases in voter registration. Rather than result from voting technology, these rate changes tend to reflect states� varying approaches to implementing the law.

Technology could improve the sharing, processing, and verification of registration information. However, an atmosphere that discourages or frustrates applicants can nullify those benefits. To avoid such atmosphere we recommend standardized training of registration administrators and workers; adoption of complimentary standardized information systems that permit instant verification of registration status from multiple series and provisional ballots for voters of uncertain registration status; and finally, mechanisms that permit voters to verify their registration status as well as the location and hours of both registration and polling sites.

The ability of all Americans to express their electoral preference would be enhanced by the following types of improvement in poll site administration and voting systems: first, additional efforts to make ballots and voting systems more accessible to and easily understood by the voters; second, voting systems that minimize human and mechanical errors while allowing for effective monitoring and protection from internal and external tampering; and finally, education and training of voters, election administration staff, and poll workers regarding the mechanics of voting. This concludes my remarks, Mr. Chairman, and we�ll be happy to try to respond to any questions you might have.

Philip Zelikow: Thank you, Mr. Huff. Our next witness is Professor Rodolfo de la Garza. Professor de la Garza is a professor here at the Department of Government at the University of Texas, but he is also the vice-president of the [Thomas] Rivera Policy Institute here at the university. Mr. de la Garza.

Professor Rodolfo de la Garza: Thank you very much. I apologize for almost being late and for not hearing, what I�m sure, were very useful presentations. I would like to speak to some issues very quickly and perhaps invite some questions. To begin I think it�s absolutely appropriate that these hearings be held at the LBJ Library because modern voting in America really follows the Voting Rights Act of 1975. That�s where you really expand and begin to open up, in this particular case, the Southwest, from the legacy of the Voting Rights Act initially passed in �65. With the Voting Rights Act of 1975, when you bring in language minorities and in the Southwest in particular, you eliminate what I think are the last formal barriers to electoral participation. That is, you create the conditions for eliminating them, and in Texas, more than any other state in the Southwest regarding Latinos (I should add: I am going to include other groups in a minute), you begin penetrating the wall that Texas and other southwestern states have built up to minimize or exclude Latino, Mexican-American voting.

Following that, as the laws have evolved, in my judgment, you have eliminated the historical, traditional barriers for access by minority groups writ large. There are issues that remain, however, and they�re coming back in a way that we would not have anticipated. But I think the first thing that I would state is that the fundamental problem now is a class-related problem. It overlaps with ethnicity and with race, but the fundamental issues of denial of access have to do with class. In the last election, in those cities that reported polls shutting early, inner city [inaudible], St. Louis, Miami, it wasn�t random; it was poor districts. In St. Louis it was poor black districts. In Miami it was often poor black Haitian districts. So the class issue overlaps to disenfranchise those people there and to allow the state to prevent people from voting who, if they had higher incomes, would never voice their complaints. High-income people do not complain about polls closing on them. Low-income people have that complaint with some regularity.

A second issue that the Voting Rights Act was supposed to have taken care of, and in one way did but the net is too large, was the issue of language. As you know, there are trigger mechanisms that require the state to provide bilingual ballots when a population reaches a certain size. But in many communities, as the new census is showing, you have an awful lot of non-English speaking immigrants, many of whom naturalized, who don�t have enough numbers to reach the trigger mechanism. Not reaching the trigger mechanism, they don�t have ballots in their own language. Additionally, depending upon how states run their own elections, you may be very restrictive in the kind of assistance you can give to non-English voters as they go to the booth. This is a formidable problem as we continue with immigration so that you get an awful lot of immigrant, naturalized citizens whose English, especially with the complicated ballots, is not really sophisticated enough to work their way through the ballots. But they can�t get assistance, and they don�t have ballots in their own language. This is a current problem. It will become a bigger problem as immigration continues. Recall that the language requirement for becoming a citizen is really quite minimal and not up to the kind of issues that in California, for example, face voters all the time.

Another issue that I want to address that affects minority communities, especially Latinos and blacks, is prison laws, criminality. One of the dilemmas is that we have changed the kinds of crimes for which people are sent to prison, and we enforce those laws differentially. So, crack is prison; cocaine is not prison. Crack is a poverty black drug; cocaine is an affluent white drug. You go to prison for crack; you don�t go to prison for cocaine. The consequence is, huge numbers of African Americans, males, who are imprisoned are denied the right to vote forever because they�re felons. Now, this is not to suggest that there are not crimes for which citizens ought to lose their voting rights, but rather, when those kinds of laws were initially developed we had an association between certain kinds of activities and the denial of citizenship rights. We�ve lost track of that. We�ve changed the criminality processes and are disenfranchising forever people who, having paid a debt to society, are now permanently disenfranchised, and given that we enforce those laws differentially on blacks and Latinos, you are really effectively damaging the electoral strength of those communities.

A related question here is the rights of immigrants to vote. Let me say that until I began doing research on this topic, I have always been opposed of the right of immigrants to vote. More recently, I�ve come to understand that I cannot defend my opposition on any ground that satisfies me. As I�m sure all of you know, as of 1924-the last state to change this was Arkansas-immigrants were allowed to vote depending upon state law. In the East, immigrants could get off the boat, sign a certificate that they were going to become citizens and could vote. We control immigration. We reduce the number of people coming in, so we forgot about the laws that said you had to be a citizen to vote. We open up immigration, bring in huge numbers of noncitizens-who by every other measure behave in some ways better than citizens-they work, they pay taxes, they want to be Americans. Most of you made no choice about wanting to be an American; you just are here. Some of these people risked their lives, paid huge sums of money to be an American, and they get here, have a very long process in order to become naturalized-in that time they are doing everything that you do-and they can�t vote. This has an effect on Latinos, who are hugely immigrant-driven, and Asians. Now, one can easily see there are some issues where giving immigrants the right to vote would be dangerous: national security issues related to some particular nation in the world that is your enemy, that makes sense. But if we recall, we have been as threatened by native-born-look what happened in Oklahoma City-as we have by any immigrant. So, without advocating the rights to vote in a careless manner, it seems to me absolutely essential to the incorporation of these populations that we revisit the question of immigrant voting rights.

The final point on the immigrant voting rights is this: there is nothing more central to the reproduction of the nation-state than the education system. If we do not reeducate ourselves as Americans, this country will end in two generations, in effect. Immigrants are allowed to vote in school board elections in numerous major cities. So, we give them this incredibly powerful right around schools but not around other issues. I don�t know how one can reconcile those contradictions. With that, let me stop and invite any questions that anyone might have.

Philip Zelikow: Mr. Chairman.

Mr. Cutler: We�ll begin this time at the other end just to balance things out.

Mr. Steele: Thank you very much for your testimony. A number of hot-button issues were raised as you progressed down the panel here. I�ll start, I guess, with Mr. Shelton. You raised a number of salient points. With respect to the complaints that were received by the NAACP and other organizations that was not just localized to Florida, that was nationwide. In other words, Florida was a springboard to look at what was happening in Michigan, St. Louis, California, wherever. Correct?

Hilary Shelton: To an extent. The NAACP set up a command center. We were very actively engaged in registering voters, educating voters, and getting them out to the polls. We actually began receiving complaints from throughout our seventeen hundred branches beginning as early as Friday prior to the election. Complaints, in some cases in Michigan and Florida, they were using electronic telephoning machines to call and to block households and tell them that the NAACP wanted African Americans to vote for George Bush. We got complaints throughout the weekend of other tactics along those lines that were being utilized to dwarf the presentation of the election on the 7. On the day of the election, beginning at 7 a.m., we began our command center, as well, with a telephone bank at our headquarters in Baltimore. At that time we were getting phone calls from just about every place. As a matter of fact, the two states that we got the most complaints [from] on Election Day were Florida and Texas.

Mr. Steele: If I could stop you there. Were these complaints verified? In other words, you could verify that there was a sort of institutionalized effort to achieve a particular outcome with respect to black voters in a given precinct or area in a given state.

Hilary Shelton: I could say that there is enough, at least disparate, information to be able to suggest that this kind of [inaudible]. If you ask me if I buy into conspiracy theories, I won�t necessarily say yes to that; however, I will say that there was enough evidence to suggest that from place to place there were certain patterns of voter disenfranchisement, misleading information. It varied from precinct to precinct, of course, and of course, in the issue of St. Louis, we began getting complaints in St. Louis that morning when polling sites were not open. One of the things the NAACP has always advocated is-our people are primarily working-class folks-to get to the polls first thing in the morning before you go to work so you don�t have to worry about it later. And also, some of the issues that were raised earlier is that early polling results have a tendency to determine whether people will continue to participate, and we think it�s important that our folks participate very early and quite legally, I should say.

Mr. Steele: Were you able to discern-from, I guess, conversations that the NAACP and other organizations had from the local jurisdictions that didn�t open on time or close their polls early-why?

Hilary Shelton: Yes, as a matter of fact, in St. Louis in particular, the NAACP branch helped bring the lawsuit that challenged the courts to keep the polls open later. We�ve gotten no good, clear indication other than bad planning or the kind of excuses that were given: volunteers that were depended upon to open polling sites didn�t get to the polling sites in time, things of that nature.

Mr. Steele: In other words, there was no effort to deliberately block voters from coming to the polls; it�s just basic ineptitude in some cases or just overlooking or just not paying attention: �Gee, I�ve got to be there at six to open the doors by seven.�

Hilary Shelton: Well, let me give you some other examples that might play more closely into, I think, what you�re trying to discount. We have polling sites in Mississippi, as a matter of fact, in which police lines were set up to "control traffic" on streets that you can usually drive in, park your car, run into the polling site, go back to your car, and then go off to work. That created some hindrances in a number of polling sites that were predominately African American and other ethnic minority. So, those are problems.

Mr. Steele: Did they do those in white areas?

Hilary Shelton: No. We heard of no police intervention in white areas preventing voters from getting to the polls at all. In addition, we had complaints, and maybe because we are the NAACP we�re more likely to get the complaints from the African-American community, but we got an awful lot of complaints from Jewish communities and white communities, as well, of problems with voting disenfranchisement. But we had young men and women that we�d asked to drive vans; as a matter of fact, we asked our college students, through our youth and college chapter, to get their university vans and help get people who couldn�t get to the polls to the polls. To go by the old folks homes and to the housing projects and so forth and make sure people got out to the polls.

We had incidents where young people, eighteen, nineteen years old, driving the van would show up at the same polling site the third time, and the police officers on duty came up to one particular young man and asked him if these people were related to him after seeing him come for the third time. When he responded, �No, I am just a student volunteer trying to help people get to the polls to exercise their civil rights,� the police officer said, �Well, do you have a chauffeur�s license,� and the young man said, �Well, no I don�t; I�m a student.� And so the next thing the police officer said to him was that �if you�re not related to these people and if you don�t have a chauffeur�s license, we don�t want to see you back around here with another van-load of people.� These were African-American people that were primarily being driven to the polls.

If the question you�re posing to me is can I prove intent, I can�t. If you ask me can I prove a disparate impact, indeed we can. So, I think that we had those problems in a number of places where I think it made a big difference.

Mr. Steele: One final question for you on this point. With respect to the voting machines, one of the things that we kind of discovered, and I know from my own home state, it�s amazing how the machines that don�t work right wind up in the minority areas. What is your take on that? And Mr. de la Garza, I�d like to get your impression on that as well, in terms of the use of technology or the lack thereof in minority communities.

Hilary Shelton: You�re absolutely right. Minority communities still have a tendency to be the poorest communities, which means fewer tax dollars flowing in, less high-tech equipment, and unfortunately, along with the less high-tech equipment, we also have less education. I�m not talking about issue education. We�re talking about education and utilization of the machines. So, what you had in cities like Atlanta, Georgia-a predominately African-American city with an African-American Mayor and predominately African-American city council-you had cases in Fulton County, the mostly African-American community, you had one vote out of seventeen being thrown out where if you went to Gwinnett County-you know, predominately white counties-you had like one out of two hundred. So, very clearly there was a disparate impact of the poor machines, poorly used machines, and poor training.

But just to give you kind of a ray of hope, we were very excited about a project in Detroit, Michigan, in which they switched from utilizing punch cards four years ago to utilizing optical scan with training. We found they went from a seven percent error rate in 1996 to a one percent error rate in 2000. So, there is hope if we look at these kinds of opportunities. One of the things that the officials say in Detroit very loudly and very clearly is that you must accompany in-depth, comprehensive training with new technologies.

Rodolfo de la Garza: I think there is a third variable introduced with what you�ve asked and with the response: that is, in addition to class and race, there�s political power, if you will. If you have a community where poor people and minorities are very well represented and indeed control the major offices that manage these sorts of things, those communities will get a different level of service. If you have control by groups, by parties that do not count on the minority vote, they�re going to provide a different set of services. Relatedly, if you provide bad machinery in affluent neighborhoods, you�re going to hear from them. Poor people may not know how to make that complaint. So, the class issue, in my judgment, overlaps with the ethnic race issue but really becomes dominant because the poor people don�t know what to do about this. Right. I know that in some places, in South Texas for example, we don�t hear about votes being thrown out because everybody is a Mexican, and you can�t do it to the Mexicans, right? But in other places you might very easily do it to the Mexicans.

Mr. Steele: Thank you, Mr. Chairman.

Mr. Siegenthaler: Mr. Shelton, let me just briefly focus on the points that Mr. Steele has raised. You say in your statement that millions of people who were affected by their inability to vote believe unequivocally that it was "unfair, illegal, immoral, and undemocratic," and that�s a perception and perceptions are very difficult to use as evidence on which to base legislation. How convinced are you, how convinced is the NAACP, that this conduct of the election was illegal, immoral, undemocratic, and unfair?

Hilary Shelton: How sure are we? We held hearings throughout the country. We�ve heard testimony, affidavits, other sworn statements, and statements that were not necessarily sworn that indicated that people believed that. They honestly hold that perception.

Mr. Siegenthaler: No doubt. And that�s what the statement says, that they believe it, but I�m really asking, I mean, is it the NAACP�s position that this was an unfair, illegal, immoral, and undemocratic election?

Hilary Shelton: Yes, it is.

Mr. Siegenthaler: With that in mind, the last time we met it appeared that congressional initiatives were going to be slow to come and perhaps would not come; now it appears that that is not going to be the case. Is there any congressional initiative that�s been proposed that the NAACP�s considering endorsing?

Hilary Shelton: I�m so happy you asked that question. The NAACP is very happy to have co-sponsored, or endorsed I should say, the Dodd-Conyers election reform bill. We believe it is the most comprehensive election reform bill. We sat down over periods of months after the election with staffs of both Mr. Conyers and Mr. Dodd and others on Capitol Hill to look at the best legislative vehicle that we thought would respond to the experiences we had in the last election. We unequivocally endorse the Dodd-Conyers bill. We think it�s the best piece. We�ve got fifty co-sponsors in the Senate now, and we have over 106 co-sponsors as of a week ago, and we believe that that is growing as well, on the House side. We think it�s the best piece of legislation and, of course, with the news of Mr. Jeffords, who knows what I�ll have waiting for me when I get back to Washington.

Mr. Siegenthaler: Have you looked at McConnell-Schumer?

Hilary Shelton: Yes, we worked very closely with Mr. McConnell and even more closely with Mr. Schumer. As a matter of fact�

Mr. Siegenthaler: Your preference is�

Hilary Shelton: Dodd-Conyers. Yes, it�s Dodd-Conyers. We even sat down with Mr. McConnell prior to getting together with Mr. Schumer. As you know, Mr. McConnell was doing a bill with Mr. Torricelli, and Mr. Schumer was doing a bill with Mr. Brownback from Kansas. And we looked at both of those pieces of legislation and realized we needed much more. We needed something much more comprehensive. We believe mandates are important and standards are extremely important. We have mandates in the Voting Rights Act; we have mandates in the Civil Rights Act. We need mandates, I believe, to be able to make this happen, and we need to be able to support these with funding in various areas. We think it�s the best piece. It�s the only bill that speaks very specifically of making sure that we utilize, not only provisional ballots, but notification with the utilization of provisional ballots. That is, if someone goes in and finds their name is not on the rosters, they can file a provisional ballot, and they have to be notified after the disposition of that provisional ballot-that is, was their vote counted or was it not counted-and they need to go in and register. Those things are extremely important. The language minority provisions in the Dodd-Conyers bill are a lot more comprehensive. It provides for, not only enforcing the Voting Rights Act provisions, but also makes very clear the utilization of interpreters which became a problem in the last election with many of the people that testified before us, particularly in Haitian communities and other groups. So, we believe that�s the best piece of legislation.

Mr. Siegenthaler: Thanks, Mr. Shelton. Thank you, Mr. Chairman.

Professor Chris Edley: I wanted to ask Mr. Shelton, but actually any of you, if you�ve had a chance to study the provisions of the recently adopted Florida legislation and to what extent you think that their act addresses the key concerns that you see arising.

Hilary Shelton: We were very happy to see the right issues raised. I mean, the Florida law does address the issue of the use provisional ballots. It eliminates the use of ballots that created the infamous chads, and a number of other provisions are helpful, but if you read the law, there is a caveat at the very end that says nothing in this bill should be construed as mandating any of the aforementioned provisions. So what that means is that you can still give money in Florida to do things in the name of strengthening the voting system, but you don�t have to use the money to do the things that are lifted up in the bill.

James Gashel: Concerning the technology, as I understand it, the Florida legislation basically prefers optical scan. It�s not exclusive and you can do more than that, but I just want to say that optical scan, as an alternative for blind people just doesn�t work. People have tried to fashion alternatives, and in my testimony I describe the overlay kind of thing where, actually, it amounts to a sleeve where you slip the paper ballot into a plastic sleeve with slots carved in it that are supposed to match up with the holes. Well, for one thing, who knows whether you get the paper in the sleeve at the right point where they match up with the holes, and for another thing, you then have to coordinate the plastic overlay with a tape recording or somebody reading it to you over the phone to preserve the anonymity and so you have a secret ballot. You know, I�m pretty savvy as a blind person. I�ve been blind all my life, and I can�t coordinate between a tape and a bunch of plastic holes on a sleeve; think of the coordination that�s involved in that. You have to count the right places. If you�ve got a cab outside waiting for you to be picked up at the polls, which a lot of us get there to and from by taxicab, you�re going to run up a pretty big bill while you�re trying to vote. It�s a real serious problem to do it that way, and so we�re going to be encouraging the local jurisdictions in Florida to adopt technology that can accommodate to independent, non-visual use: but that is not the optical scan method, I promise you.

Rodolfo de la Garza: One of the things that the Florida law doesn�t do, none that I�ve seen does, is deal with what I�m terming a class issue. There are two problems in the election. One is a technological problem and how you can manipulate. The other one is the ability of the voter to get to the voting box. If you�re a working-class person and you�re not in a union, this is a very serious problem. If you�re a single mother with three kids, getting out to vote is a very serious problem. Those are not technical problems; those are different kinds of access problems that I see people not addressing at all.

Chris Edley: Let me ask: I think a couple of us are wrestling with this question of the enforceability of whatever standards are out there under current law or under any proposed new law. We already have, under federal law, protections supposedly for people with disabilities, for people with limited English proficiency, and yet we�ve all heard lots of stories about shortcomings across the country. Do any of you have concrete suggestions about the ways in which, not just the standards and the aspirations could be strengthened, but the practical enforcement of those standards could be achieved?

Hilary Shelton: I could begin by saying private cause of action is a very helpful tool. I think that one of the people that testified earlier today talked about-I guess it�s Joe Rich from the Justice Department-how many lawyers they actually have on staff and the voting rights section and how many phone calls they received particularly on days leading up to Election Day, and I know we were among many of those phone calls they received in this last election. There has to be an opportunity, I think, for Joe Citizen to be able to bring the suits necessary to address the problems, bring at least injunctive relief to address the concerns in communities. I believe that�s one very quick way. We had talked to the Justice Department about quick response teams to be able to go in and investigate very quickly when allegations of improprieties are being alleged in certain jurisdictions. One of the biggest problems that we had in the last elections is how long it took to dispatch lawyers from the Voting Rights Section into the troubled areas.

James Gashel: I would just say first of all, private right of action, absolutely, I think that�s the best way to enforce any of these laws and then also in the area of disability, much more clearly written standards. It was mentioned earlier that the clearest law is the Voter Assistance Law. Well, sure it says you have the right to an assistant, period. That law is about one or two sentences, and that�s it. I would say that law is observed and abided by. The other disability law, Voting Rights Act for the Elderly and Handicapped Act, is just awfully discretionary without any really clear standards at all, but there must be a means of access, [which] goes to my point: if you recommend that the voting process must be accessible, you will have said nothing.

Kenneth Huff: Let me say, I didn�t know �til a while ago that Texas was ranked right with the state of Florida on the things that happened in the election year. It�s going to be difficult. We don�t have the answer to it. In Texas, alone, you have 254 counties and each county is an entity within itself, and the elections are whatever the county clerk determines them to be. As far as I know, some of it�s determined by state law, but I�m not saying there is not an answer to how additional regulation can be imposed to make it work more equitable.

Rodolfo de la Garza: You could reduce, substantially, the trigger number for language provision; that�s a simple one. How to enforce that: there are a lot of technical mechanisms for figuring out how many approximating non-English speakers and of what languages there are in a particular area, but I think that would be an essential step, especially as the new census shows how minorities are just going places where they never used to be.

Chris Edley: Thank you, Mr. Chairman.

Mr. Cutler: Mr. Gashel, why shouldn�t the best method for blind and other handicapped people be to develop the absentee ballot better so you wouldn�t have all the trouble of getting to the polls? You have the right to an assistant. You usually have paneling members or others who help you. Why couldn�t they help you fill out an absentee ballot, and why wouldn�t that be a better solution than any of the others?

James Gashel: Well, I think that first of all, let�s just start with the idea that that�s a separate and maybe equal process, although a lot of issues developed toward the end of the campaign-even in the last day or so of the campaign-and a lot of people may not actually make up their mind until Tuesday morning when they go to the polls. So, I wouldn�t want to see any system which would limit access by disability to absentee voting. We have to have a process that is fundamentally equal and fundamentally integrated into the normal voting stream, I think, for people to accept it. We could have disability access in this country on all kinds of separate terms: we don�t even have to just look at voting, but separate educational processes and all sorts of things, and presumably you could get a good education. You know we used to get a reasonably good education in schools for the blind, but we were segregated in schools for the blind, and I think that�s the same thing in voting.

Mr. Cutler: Mr. Shelton, I have one other question and that is, while things were certainly far from perfect in the 2000 election, it couldn�t have been much better in the 1996 election. Is there some distinction you can draw between the two, not only in the perception of the black and other minority communities, but in what you think actually happened? Was it the closeness of the 2000 election (inaudible) that many more blacks and minorities turned out to vote?

Hilary Shelton: I think it was the turnout to a great extent, the record turnout of the African-American community and other ethnic minority communities in this past election, and certainly, I think, in this particular case we put a microscope to something we�ve been kind of looking at with a pan vision to really focus in on Florida, in particular. And these other concerns became even more evident or resonated, I think, louder with the American people. The problems in St. Louis, the problems here in Texas, the problems in Illinois, the problems in California and other places throughout the country are consistent. The volume of those problems, I think, was exacerbated with the closeness of the election.

Mr. Bob Michel: Jim Gashel, this is Bob Michel. Back in my hometown of Peoria, we have a blind peoples� center in which-I�ve been there a number of times-one of the services was, on Election Day to provide carpooling for those to go to vote. You mentioned in your testimony, maybe the ultimate: an audio response to voting. That�s high-tech. That would be nice when it comes, but I won�t be living at that time. But if, per chance, lightening struck and there was that opportunity to do that, but only very limited, if I were an election official and said, �I�m going to try something new and have at least one of those machines in Peoria,� would that be offensive to blind people if we said it is just going to be a limited place where we can have this type of voting without destroying any rights of privacy because I can do it all by myself? But it obviously would have to be in a very limited type of application and only probably in metropolitan centers where there are a number of blind people rather than in a rural sense. Would that be offensive to the blind community?

James Gashel: Well, first of all, some of that might be and some not. It�s an excellent question. Mr. Michel, you are already alive at a time when this is done, so let�s start there. This is not rocket science technology, and the cost is not exorbitant in a way that a local jurisdiction, even in a jurisdiction like Peoria, can�t afford it. Frankly, I think it would be offensive if we were to say, �If you�re blind, there�s one precinct in Peoria or Chicago or wherever you are where you can vote, and you�ll have to go there.� That was the school for the blind image that I gave you before, and besides, if you�re blind, you fundamentally have a transportation problem, too. So, if you have to go to that one place, that�s going to be a problem. So, what we really need to be able to do is to vote at the same precinct that anybody else votes. But if a local jurisdiction wants to have one of the voting machines at a precinct configured with the voice technology and the seven other machines that are at that precinct not configured with the voice technology, and if that ultimately means that I might have to stand in line behind somebody or if I was sighted and I could go in and vote quickly at another machine, I would not have a problem with that, and I don�t think most blind people would. In other words, we wouldn�t say that every single machine at that precinct needs to talk to you, but at least one of them should talk to you. The point being that you ought to be able, at least, to cast a vote at the same precinct, and we do move around. You get the point.

Bob Michel: Thanks for your response. Let me ask you, many blind people become blind through old age? How large is the blind population? Have you got the latest?

James Gashel: Well, the blind population is something over a million, about a million and a half people are blind, but, actually, as many as eleven million people in this country, according to the National Center for Health Statistics, say that they cannot see enough to read newspaper print. The other ten million aren�t identified as blind, but they don�t see very well and they probably can�t read a ballot. Many of them probably stay away from the polls because they just aren�t going to be able to read the ballot. So, we really do need to do something about this, and I made the point in my written statement, I think a combination of audio and visual would help a lot of people, not just blind people, but would help a lot of people who are hard of seeing or don�t read very well for lots of reasons. So, the population to be benefited by a multi-media presentation is really many millions of people.

Bob Michel: That is a significant number. I thank you for informing the commission.

Mr. Boschwitz: I also have no questions of this panel, but I find the witnesses, particularly Mr. Gashel, very interesting.

Ms. Colleen McAndrews: I have two questions, one quick, of Mr. Gashel. I�m Colleen McAndrews from California, and I don�t know if you�re aware, we have a significant percent of people who vote absentee in California, in some elections upwards of forty percent. I understand that when you ask for an absentee ballot, if you are disabled or blind, you can notify the election officials and, in many cases, the absentee ballot can be withheld right until Election Day and carried into the polling place, or carried in by another person. So I�m curious if that would solve the problem in terms of using the absentee ballot process like Chairman Cutler had suggested and if you would have an objection to that if you can carry it in on Election Day to the precinct.

James Gashel: Well, I would have an objection, and I think the people I represent would have an objection if that were the only option. I think absentee voting should be an option for anyone, and basically for blind people on the same terms and conditions as anyone else, but you know, there is something fundamentally, participation in democracy, to go to the polls and cast that ballot and to stand in line with everybody else and to be part of the citizenry of this nation. And I don�t think we should forget about that. Now, some people can�t do that for one reason or another and have to vote from their nursing home, or they�re shut-ins, or they have to be out-of-town or whatever, but why should a person, because they�re blind, be denied the opportunity of that experience as a citizen of our country? I don�t think they should be.

Colleen McAndrews: Just on the principle.

James Gashel: Right.

Colleen McAndrews: I understand.

James Gashel: We don�t want to diminish the principle, the principle of voting and the principle of participating in our democracy. There aren�t any more important principles, I don�t think, in a free society.

Colleen McAndrews: Yes, I agree with that statement. My other question goes to a lot of the technological issues, [which], when we hear from the voting officials, have to do with: accuracy, competency of the voting lists so that when people show up at the voting place, their name is on the list and that the lists are accurately compiled, as well as, the concerns that many people have over fraud or the ability to get to different voting places, like what is this value we hold where you only vote in your neighborhood? Wouldn�t it be nice to be able to vote in your place of business; or if you�re out of town, vote in another location; or if you�re going to college, vote there? But whenever you get into the difficulties and the practical implications of those kinds of goals, it comes down to needing to have some kind of identifier: either through voter registration, in order to keep the list [clean], some kind of identifier number attached to the name on the roster, and also some kind of identification at the polls so that people can�t show up at multiple polling places around a state. So, I�m just curious, NAACP in particular, or any of the others of you, if you would weigh in on the pros and cons of that kind of voter id to vote and some kind of voter identification at the time of registration.

Kenneth Huff: I think it�s very interesting, and I think it can be done. A good example that I would use-somehow or other with the high technology we have today-when I go in to stop at a drive-in grocery, pay to get my car washed, they give me a number. I go out to the car wash. I plug the number in, and the door opens for me. I think that something similar to this can be made to identify voters, and you do not have the problem that we had in the last election where they come down there and they�re not on the voters� lists or the precinct has been changed or many of these things can happen to them. So, I think there are ways that you can eliminate some of this problem.

Rodolfo de la Garza: One of the issues that political science has addressed is the declining turnout of American citizens, and there have been all kinds of innovations. Oregon has done some wonderful things. Minnesota has done that. We find rather surprising results. Manipulating those rules doesn�t generate a huge turnout, more significantly, it doesn�t change the character of the people voting. That is, if you did a model saying what kind of people voted before this, you�d say a certain age, a certain income, and now you�ve done all this and the same kinds of people are voting. Thus, the point that I would hope . . . and I know, depending on how commissions define the work, they can do it narrowly or broadly, creatively or not so creatively, if I might use other ways of saying it.

It seems to me a fundamental question, given the concern that I�m sure this commission has, you have, and everybody testifying has, is with the character of American elections. One question is, do we get the vote counted accurately? Now that�s essential. We�ve never agreed on how many or what failure rate is acceptable, .5%? We don�t know. We�ve never talked about that. The second question is, how do you get more Americans to vote because if all you�re going to do is count the same five people better, you�ve still not counted the other five people; they�re not participating. It seems to me that some of the election reform you ought to be talking about, I hope you will address, is how do you expand the American electorate to reflect the American nation? Failing to do that, you might end up counting everybody that voted perfectly, and you�ve lost half the nation and you�re failing as a democracy. That would be a terrible thing to result from a very bad election experience.

Hilary Shelton: I would just say that we have historically and consistently been in opposition to "voter integrity programs" in which photo ids are necessary to establish your identity. They have proven more often to be a tool to prevent registered voters, legal voters, from participating who just happen to be id deficient, and they have been a tool to prevent the kind of voting fraud that I think we�re concerned about. So, there must be a better way that does not disallow the average citizen that happens to be jogging and perhaps not having id with them from stopping by that voting booth and going in and voting and then going about their jog to go home and do everything else they need to do. I think there are some tools we can utilize.

We�re very concerned about some of the purging processes that have been utilized in the past to purge rolls. Apparently, the experience in Florida made it very clear [that] when companies that do purging will often times tell you that the information they�re giving back to the registrar�s office is not necessarily totally accurate, but is very helpful. As a result, in many cases, we�ve had people who were registered to vote who were purged from the rolls, and for some reason that has a tendency to fall more heavily on ethnic minority communities, as it did in the last election. We had a Catholic priest, as a matter of fact, that went to vote, and his name had been purged from the rolls because they said he was a felony offender when, indeed, he was not.

The byproduct of that for us has been that every African-American man that walked into some of the polling sites in some of the most heavily disenfranchising states like Mississippi, Alabama-I hate to keep picking on Florida, but they kind of deserve it in this particular case-but Florida as well, were more likely to be asked almost wholesale if, indeed, they were felony offenders when no one else was asked that same question. Certainly, white women and white men were not asked that question, but black men were. So, the concern gets back to how do we provide protection against voting fraud. I think we have to find some better ways of doing it. In my local election site in Washington, D.C., if I go by there, I get asked just a couple questions. They ask me what my address is and what my zip code is and with that they can pretty well determine that I live in the community, that they know me, and that I�m probably the person I say I am, even without showing an ID.

Philip Zelikow: This is a more technical question to Mr. Shelton and to Mr. Gashel. It�s about the structure of a piece of federal legislation. There are two conceptions that are both being utilized in current bills. Let�s say both bills actually want to set conditions on federal grant making to achieve the kinds of goals you referred to. One approach is to set up an agency, say this agency has the following goals. It will be a general and commendable list of goals, and then this agency, informed or not by a study commission or something, will say what the specific conditions are and that, presumably, will be done in an administrative rule-making process somehow in the future by people you don�t know. That�s a [inaudible] approach: set up an agency, give it money, empower it, but say the conditions are actually going to be specified by the agency in rule making. Approach two is to say we�re actually going to specify the conditions in the bill and in the main legislation itself so that those can be clear upfront. We may set up an agency that will then administer the grant making, but the conditions and the strings that are going to be attached are going to be specified in the legislation by the Congress initially. The question for the two of you is, do you care which of these schemes is adopted in a federal legislative approach?

James Gashel: Speaking for the National Federation of the Blind, we do care. Independent, non-visual use as a criterion ought to be written in the bill. If it�s good enough to say, it�s good enough to put in the bill.

Hilary Shelton: We agree. As a matter of fact, we�ve worked very closely with the federation in Washington, and that�s why we support the Dodd-Daschle bill because it very specifically lays out the standards, it creates the standards in which each state has to write into their state plan as they�re applying for funding. As a matter of fact, this particular piece of legislation actually has an early trigger process in which if you can establish, if you�ve met those standards, you can begin getting the money right away, and actually, the increased [cared] approach is that a higher percentage of the matching fund is then incurred by the federal government as opposed to the state. There�s an 80-20 match, but if you do it before the next election, then it becomes a 90-10 match to help move states along in addressing those concerns very quickly. So, yes, we think we absolutely have to have mandated standards.

Philip Zelikow: Thank you, Mr. Chairman.

Mr. Cutler: That concludes this panel, and we thank all of you very much. It�s a very useful panel from our point of view.