Statement of Professor Philip Zelikow, Executive Director of

the National Commission on Federal Election Reform,

to the House Judiciary Committee

December 5, 2001

Good afternoon Mr. Chairman and Members of the Committee. Thank you for the opportunity to testify today, particularly on a matter that goes to the heart of our nation’s democracy. In these challenging times, the quality of our democratic processes can and should be part of our national debate.

Although it seems long ago, the 2000 presidential election was a political ordeal that tested our electoral system unlike any other in living memory. From November 7 to December 12 the outcome of the presidential election was fought out in bitter legal and political struggles that ranged throughout Florida and ultimately extended to the United States Supreme Court. Fortunately, our political system proved its resilience.

The ordinary institutions of election administration in the United States, and specifically Florida, just could not readily cope with an extremely close election. Many aspects of the election processes were put under a microscope and viewed by an anxious nation. With dismay and growing anger we saw controversial ballot design; antiquated and error-prone voting machines; subjective and capricious processes for counting votes; voter rolls that let unqualified voters vote in some counties and turned away qualified voters in others; confusion in the treatment of overseas and military ballots; and a political process subjected to protracted litigation.

Stepping back from Florida, the picture was no more encouraging. The chief election official of Georgia, Cathy Cox, testified to our Commission that: “As the presidential election drama unfolded in Florida last November, one thought was foremost in my mind: there but for the grace of God go I. Because the truth is, if the presidential margin had been razor thin in Georgia and if our election systems had undergone the same microscopic scrutiny that Florida endured, we would have fared no better. In many respects, we might have fared even worse.” Across America, we heard from official after official who felt the same way.

Last January, looking to the future, former Presidents Gerald Ford and Jimmy Carter, as well as former Senator Howard Baker and Lloyd Cutler, formed the National Commission on Federal Election Reform. The Commission was privately funded in order to ensure that it could work quickly and not be encumbered by political pressures. Its mission was simple: to ensure that while our elections can and should be hard-fought, every American can be assured that the administration and determination of our elections is fair, accurate, and just.

Our co-chairs asked a diverse group of outstanding individuals to join the Commission and spend a year investigating American democratic processes at every level. These Commissioners from every region of the country have diverse political affiliations, professional, and personal backgrounds.

They listened hard, studied hard, and asked hard questions. They heard testimony in four public hearings from over 200 election administrators, civil rights groups, scholars, and concerned citizens. They looked at our election system as a whole, as well as that of individual states.

While the Commission observed many problems in our nation’s electoral systems, there was also good news. In the last few years, and now spurred by the events of last year, election reform has returned to the legislative agenda in many states, most notably Florida and Georgia. In much of the country cadres of able and dedicated election administrators are in place who can show what is possible and carry reforms into practice. In a world of problems that often defy any solution, the weaknesses in election administration are, to a very great degree, problems that governments actually can solve.

With that optimism, both Republicans and Democrats on the Commission, sought solutions that were bipartisan and would be consistent with the historical development of America’s electoral system. The Commission believes that when the American people choose their president, vice president, and members of Congress, voters should expect all levels of government to provide a democratic process that:

• Maintains an accurate list of citizens who are qualified to vote;
• Encourages every eligible voter to participate effectively;
• Uses equipment that reliably clarifies and registers the voter’s choices;
• Handles close elections in a foreseeable and fair way;
• Operates with equal effectiveness for every citizen and every community; and
• Reflects limited but responsible federal participation.

For Americans, democracy is a precious birthright. But each generation must nourish and improve the processes of democracy for its successors. The Commission envisioned a country where each state maintains accurate, computerized voting lists of who can vote, networked with local administrators. Using that system, qualified voters in our mobile society would be able to vote throughout their state without being turned away because of local administrative problems. Millions of military and overseas voters would find it easier to receive and return their ballots. Election Day would be held on a national holiday, freeing up more people to serve as poll workers and making polling places more accessible. Voting machines would meet a common standard of excellent performance. Each state would have uniform, objective definitions of what constitutes a vote. News organizations would exert necessary restraint in predicting election outcomes. Every jurisdiction and every official would obey the Voting Rights Act and other statutes that secure the franchise and prohibit discrimination. In all of this there would be a delicate balance of shared responsibilities between levels of government, between officials and the voters they serve.

From that vision, the Commission recommended 13 reforms. They included a statewide voter registration database, provisional ballots, simplified procedures for uniformed and overseas voters, benchmarks and standards for voting systems, including clear definitions of what constitutes a vote on each kind of machine, the creation of a new federal election agency responsible for administering grants and setting voluntary standards, restoration of voting rights for felons after they have served their full sentence (including probation), and federal investment to capitalize state revolving funds that will provide long-term assistance to election administrators.

I will be happy to answer your questions about the specifics of any of these recommendations later in this hearing. However, in the meantime please allow me to highlight one of our core recommendations and a key provision of Chairman Ney and Congressman Hoyer’s Help America Vote Act, because I believe that it goes a long way to explain the need, practicality, and bipartisan nature of both our Commission’s Report and the Ney-Hoyer bill.

First, let me note that the Help America Vote Act could, in the words of our co-chairs, Presidents Ford and Carter, Michel and Cutler, “with the exceptions of the Civil Rights Laws of the 1960’s . . . provide the most important improvements in our democratic election system in our lifetimes.” The bill adopts our Commission’s most important recommendations. It is bipartisan, innovative, and will actually work in practice.

The cornerstone of both our report and the Ney-Hoyer bill is a statewide voter registration database. One of the most serious problems in America’s elections is also one of the most basic – identifying who can vote. For some this is a problem of disfranchisement. For others this is a problem of the integrity of the voting system.

The issue of voter lists now has well-drawn battle lines. Some argue that the “purging” of voter lists has been used to push minority voters off the rolls. Others maintain that “list maintenance” is essential to preventing fraud. Regardless of one’s position, there is no disagreement that voter lists are swollen with large numbers of named voters who have moved, or died, or are no longer eligible to vote in the local jurisdiction where they are registered. For example, in Oklahoma, which gathered statewide data from its unitary election system, 25 percent of the voters on its roles are inactive. A number of other jurisdictions have compared their lists to census numbers and observed that they have thousands, sometimes ten of thousands, more registered voters than people.

Some contend that swollen voter rolls are harmless, since the individuals have moved or died and therefore do not vote, and since poll worker scrutiny and signature verification can prevent fraud. We disagree:

• Significantly inaccurate voter lists add millions in unnecessary costs to already underfunded election administrators and undermine public confidence in the integrity of the election system and quality of public administration.
• Significantly inaccurate voter lists invite schemes that use ‘empty’ names on voter list for ballot box stuffing, ghost voting, or to solicit “repeaters” to use such available names. The opportunities to commit such frauds are actually growing because of the trend toward more permissive absentee voting.
• Significantly inaccurate voter lists often penalize poor or ill-educated voters. Among the most mobile citizens in the country, these voters find that even modest residential changes, within a state or county, will keep them from appearing on the list of eligible voters at their new residence.

Rather than take a side in this ongoing partisan argument, the Commission and the Ney-Hoyer bill, propose to fix the problem in a way that breaks from the old controversies over “purging.” Implementing statewide, computerized databases, similar to the one utilized by Michigan and Kentucky, will allow every state’s voter registration lists to be more accurate and transparent.

A statewide database, tied to the DMV and other social service agencies, will ensure that the rolls are more accurate. It would keep the core constitutional responsibility for voter registration in the hands of state governments. In-precinct provisional ballots, which allow a voter to cast a ballot if they believe they have been incorrectly removed from or never added to the database, can only occur under this system. A statewide registration system is also more transparent and accountable to outside scrutiny and will be less susceptible to fraud. This is why this recommendation has been at the heart of almost every group who has studied the problems in our election systems, including the United States Commission on Civil Rights, the Cal-Tech MIT Project, the FEC, and the Election Center.

I use this relatively mundane example because it demonstrates that there are clear bipartisan solutions to large problems with our election systems. I use it because it is a clear example of the kind of role that the federal government can play, by providing funding and setting minimum standards that will ensure that the accuracy and fairness of our democratic processes for every voter. And, at the same time, it allows states and localities to enact this program in a way that fits the needs of their system and citizenry.

The Ney-Hoyer bill is not perfect. It did not include some of the suggestions made by our Commission. Yet, a sense of perspective is needed. This legislation would create a genuinely national framework for the administration of elections for the first time in the history of the United States. It would create the first federal partnership with state and local governments in paying for the machinery of democracy. It would transform the voter registration systems, voting procedures, and voting systems in practically every county in America.

If a bill emerges that is better than Ney-Hoyer, our Commission will readily endorse it. Perhaps this Committee can find amendments that will clarify or improve the bill, while maintaining the foundation of bipartisan spirit and substantive reforms on which the legislation was drafted in this brief window of legislative opportunity. We, like all Americans want what is best. But, for now, we do not wish to be the enemy of the good.

Thank you. I look forward to your questions.