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Protecting the Constitutional Right to Vote for All Americans Hearing S. HRG. 110–545 PROTECTING THE CONSTITUTIONAL RIGHT TO VOTE FOR ALL AMERICANS HEARING BEFORE THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED TENTH CONGRESS SECOND SESSION MAY 20, 2008 Serial No. J–110–96 Printed for the use of the Committee on the Judiciary ( VerDate Aug 31 2005 14:15 Oct 20, 2008 Jkt 043914 PO 00000 Frm 00001 Fmt 6011 Sfmt 6011 S:\GPO\HEARINGS\44821.TXT SJUD1 PsN: CMORC PROTECTING THE CONSTITUTIONAL RIGHT TO VOTE FOR ALL AMERICANS VerDate Aug 31 2005 14:15 Oct 20, 2008 Jkt 043914 PO 00000 Frm 00002 Fmt 6019 Sfmt 6019 S:\GPO\HEARINGS\44821.TXT SJUD1 PsN: CMORC S. HRG. 110–545 PROTECTING THE CONSTITUTIONAL RIGHT TO VOTE FOR ALL AMERICANS HEARING BEFORE THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED TENTH CONGRESS SECOND SESSION MAY 20, 2008 Serial No. J–110–96 Printed for the use of the Committee on the Judiciary ( U.S. GOVERNMENT PRINTING OFFICE 44–821 PDF WASHINGTON : 2008 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001 VerDate Aug 31 2005 14:15 Oct 20, 2008 Jkt 043914 PO 00000 Frm 00003 Fmt 5011 Sfmt 5011 S:\GPO\HEARINGS\44821.TXT SJUD1 PsN: CMORC COMMITTEE ON THE JUDICIARY PATRICK J. LEAHY, Vermont, Chairman EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, JR., Delaware ORRIN G. HATCH, Utah HERB KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa DIANNE FEINSTEIN, California JON KYL, Arizona RUSSELL D. FEINGOLD, Wisconsin JEFF SESSIONS, Alabama CHARLES E. SCHUMER, New York LINDSEY O. GRAHAM, South Carolina RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas BENJAMIN L. CARDIN, Maryland SAM BROWNBACK, Kansas SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma BRUCE A. COHEN, Chief Counsel and Staff Director STEPHANIE A. MIDDLETON, Republican Staff Director NICHOLAS A. ROSSI, Republican Chief Counsel (II) VerDate Aug 31 2005 14:15 Oct 20, 2008 Jkt 043914 PO 00000 Frm 00004 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\44821.TXT SJUD1 PsN: CMORC C O N T E N T S STATEMENTS OF COMMITTEE MEMBERS Page Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 5 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1 prepared statement .......................................................................................... 223 Kohl, Hon. Herb, a U.S. Senator from the State of Wisconsin, prepared statement .............................................................................................................. 222 Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode Island ...... 3 WITNESSES Goldman, Jonah H., Director, National Campaign for Fair Elections, Lawyers’ Committee for Civil Rights under Law, Washington, D.C. .............................. 12 Karlan, Pamela S., Kenneth and Harle Montgomery Professor of Public Inter- est Law, Stanford Law School, Stanford, California ......................................... 8 King, J. Bradley, Co-Director, Indiana Election Division, Office of the Sec- retary of State, Indianapolis, Indiana ................................................................ 7 Mitchell, Cleta, Partner, Foley & Lardner LLP, Washington, D.C. .................... 10 Payton, John, President and Director-Counsel, NAACP Legal Defense and Educational Fund, Inc., New York, New York .................................................. 4 QUESTIONS AND ANSWERS Responses of Jonah H. Goldman to questions submitted by Senators Leahy, Feinstein and Kohl ............................................................................................... 24 Responses of Pamela S. Karlan to questions submitted by Senators Leahy and Feinstein ........................................................................................................ 36 Responses of Bradley J. King to questions submitted by Senators Feinstein, Kennedy, Kohl and Schumer ............................................................................... 45 Responses of Cleta Mitchell to questions submitted by Senator Schumer ......... 60 Responses of John Payton to questions submitted by Senators Leahy and Kennedy ................................................................................................................ 63 SUBMISSIONS FOR THE RECORD AARP, Larry White, Government Relations, Washington, D.C., statement ....... 85 Associated Press, May 6, 2008, article ................................................................... 91 examiner.com, November 6, 2006, article .............................................................. 94 Goldman, Jonah H., Director, National Campaign for Fair Elections, Lawyers’ Committee for Civil Rights under Law, Washington, D.C., statement ........... 96 Hurd, Maude, National President, Association of Community Organizations for Reform Now (ACORN), statement and attachment .................................... 140 Karlan, Pamela S., Kenneth and Harle Montgomery Professor of Public Inter- est Law, Stanford Law School, Stanford, California, statement ...................... 156 King, J. Bradley, Co-Director, Indiana Election Division, Office of the Sec- retary of State, Indianapolis, Indiana, statement and attachments ................ 164 Mitchell, Cleta, Partner, Foley & Lardner LLP, Washington, D.C., statement and attachments ................................................................................................... 225 Muhlhausen, David B., and Keri Weber Sikich, Heritage Center for Data Analysis, Washington, D.C., report .................................................................... 239 National Gay and Lesbian Task Force and the National Center for Transgender Equality, Washington, D.C., joint statement .............................. 262 NewsBusters.org, May 6, 2008, article .................................................................. 267 Payton, John, President and Director-Counsel, NAACP Legal Defense and Educational Fund, Inc., New York, New York, statement ............................... 269 (III) VerDate Aug 31 2005 14:15 Oct 20, 2008 Jkt 043914 PO 00000 Frm 00005 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\44821.TXT SJUD1 PsN: CMORC IV Page People for the American Way, Tanya Clay House, Directory, Public Policy, Washington, D.C., letter ...................................................................................... 278 Project 21, National Center for Public Policy Research, September 28, 2007, article .................................................................................................................... 282 Samples, John, Director, Center for Representative Government, Cato Insti- tute, Washington, D.C., statement ..................................................................... 284 Simms, Robert A., Georgia Deputy Secretary of State, Atlanta, Georgia, state- ment ...................................................................................................................... 290 United States District Court for the Western District of Missouri: Davis Indictment .............................................................................................. 298 Franklin Indictment ......................................................................................... 302 Gardner Indictment .......................................................................................... 306 Stetson Indictment ........................................................................................... 310 USA Today, May 14, 2008, editorial ...................................................................... 314 Wall Street Journal, May 20, 2008, article ........................................................... 315 von Spakovsky, Hans A., former Commissioner, Federal Election Commission, and Counsel to the Assistant Attorney General for Civil Rights, Department of Justice, article and attachment ...................................................................... 319 VerDate Aug 31 2005 14:15 Oct 20, 2008 Jkt 043914 PO 00000 Frm 00006 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\44821.TXT SJUD1 PsN: CMORC PROTECTING THE CONSTITUTIONAL RIGHT TO VOTE FOR ALL AMERICANS TUESDAY, MAY 20, 2008 UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, D.C. The Committee met, Pursuant to notice, at 2:43 p.m., in room SD–226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, Chairman of the Committee, presiding. Present: Senators Leahy, Feingold, and Whitehouse. OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF VERMONT Chairman LEAHY. As I am sure you know, we had a roll call vote, and it delayed our opening. This Committee meeting was going to be jointly chaired by myself and Senator Kennedy, who is the most senior member of our Committee and a former Chairman. And the news has been rather shocking this afternoon about Senator Ken- nedy, and I would hope that each of you would hold him in your thoughts and prayers. Two years ago, Members of Congress stood together on the Cap- itol steps to reaffirm our commitment to achieving full democratic participation by reauthorizing the Voting Rights Act, and this Com- mittee played a key role in reinvigorating that landmark law. After nearly 20 hearings in the House and Senate Judiciary Committees, we found that modern-day barriers to voting continue to persist in our country. Now, only months away from an important Federal election, we are here to examine barriers to the ballot box and to look for ways to ensure
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