STATEMENT OF BARBARA R. ARNWINE,
EXECUTIVE DIRECTOR OF THE LAWYERS’ COMMITTEE
FOR CIVIL RIGHTS

DECEMBER 7, 2004

Good morning. I am Barbara Arnwine, the Executive Director of the Lawyers’ Committee for Civil Rights Under Law. I want to thank the Leadership Conference for Civil Rights and Common Cause for putting together this very important program.

The Lawyers' Committee is a forty year old nonpartisan, nonprofit civil rights legal organization, formed in 1963 at the request of President John F. Kennedy to provide legal services to address racial discrimination. Since its inception, the Lawyers' Committee and its nationwide network of pro bono law firms and attorney volunteers has worked to secure and protect minority voting rights. After the 2000 election debacle, the Lawyers' Committee combined with People for the American Way Foundation, the National Coalition for Black Civic Participation and other organizations to form the non-partisan, national, Election Protection Program. This year’s election protection program was the most comprehensive ever protecting voters across the country through the 866 OUR VOTE hotline and direct poll monitoring. Over 130 civil rights and civic participation organizations, many of whom you will hear from today, devoted their resources and talents to making the 2004 election protection program a success.

However, the Lawyers' Committee is deeply frustrated and disappointed with media reports that inaccurately suggest that all was well at the polls in 2004. The reality is that Election Protection received over one hundred thousand calls from voters to the 21 866-OUR VOTE call centers and 65 local legal command centers across the country which told a different story. Long lines were a manifestation of the many voting irregularities that confronted voters as they attempted to cast a vote. Contrary to widespread reports in the media, the margin of victory in an election should not be used as an automatic indicator that the election ran smoothly and was not plagued by errors.

Prior to the election and on Election Day, voters calling the hotline reported incidents of registration problems, late mailing by election offices of absentee ballots, failure to provide assistance to the disabled, failure to provide bilingual assistance, failure to provide provisional ballots, improper and racially discriminatory voter ID requests, breakdowns of electronic voting machines, polls opening late and closing early, poorly trained and inadequate numbers of poll workers, and voter intimidation and suppression tactics in predominantly minority neighborhoods. Today’s hearing provides an important forum to hear about these problems in more depth from the many panelists.

In addition to voters, Election Protection also received calls from county election officials, election judges, and poll workers seeking guidance on federal and state election laws. Overall, the Election Protection hotline provided assistance to over 205,000 callers from the Early Voting period to the close of polls on Election Day. To date we have documented 40,000 reports in the Electronic Incident Reporting System, the coalition’s database designed by the Verified Voting Foundation with our assistance.

The Election Protection Program helped voters across the country navigate a messy and confusing voting process. Systemic failures included the breakdown of electronic voting machines in Ohio, Georgia, Florida, New York, New Jersey, North Carolina and Texas. Reports ranged from mis-calibrated machines which selected a different candidate than the voter intended to choose; to machines counting backwards; to computers eliminating votes; and of course, the well publicized Ohio precinct that gave President Bush 4,258 votes when only 638 ballots were cast.

Acts of voter intimidation and suppression aimed at minority communities were rampant throughout the election period and became even more pervasive on Election Day. “Dirty Tricks” flyers were distributed in predominantly minority neighborhoods across the country. These malicious flyers misidentified polling places, publicized Election Day as November 3rd, and threatened voters with legal repercussions for casting a ballot. One flyer distributed in Milwaukee, claiming to be from the fictional Milwaukee Black Voters League warned voters that if they’ve ever been found guilty of anything, even a traffic violation they can get 10 years in prison and their children will be taken away. But equally troubling were the new suppression tactics of automated “robo” calls and paid operatives who walked neighborhoods spreading misinformation and deception.

We received complaints, backed up by testimony at post-election hearings sponsored by Election Protection, which voters in urban, predominantly minority communities suffered from a lack of Election Day resources, including voting machines and well trained poll workers, compared to voters in more affluent suburbs.

Election Protection’s unprecedented network of over 8,000 legal volunteers and 25,000 community volunteers monitored the operation of our electoral process and actively advocated for change. When Ohio Secretary of State, J. Kenneth Blackwell inexplicably forbade election officials from offering provisional ballots to voters who requested an absentee ballot an never received one but could get to the polls, Election Protection immediately filed litigation allowing these Ohioans voters to cast provisional ballots on Election Day. When voters in minority communities were harassed and interrogated by vote challengers, Election Protection responded by defeating widespread racially targeted voter challenges in Ohio, Georgia and Florida.

The Election Protection Coalition has, for the first time in history, documented the systemic failures of the United States electoral process and the pervasive threats to disenfranchise voters. The Snap Shot Summary that we released yesterday provides preliminary information on the tens of thousands of reported incidents of voting barriers.

The Lawyers’ Committee working with our many allies will use the documented evidence to make a strong case for electoral reform at the federal and state level. Other panelists you will hear from today will discuss many of these problems in more detail. We applaud the Florida Supervisors of Election, who recently announced their support of dramatic election reforms.

Election Protection’s unprecedented documentation of the experience of American voters in 2004 is a clarion call for policy makers to actually pursue meaningful election reform. As we have illustrated, problems with the American electoral process are systemic. Improvement can be made at almost every step in the voting cycle. Policy makers at the federal, state and local levels need to work within the confines of their jurisdictions to ensure that the disturbing reality of our democratic foundation is deliberated and acted on.

Because of the holistic need to address the problems Americans face in casting a ballot, it is important that those responsible for reform do not rely on any currently existing mechanism to frame the debate. Specifically, Congress and the states must look beyond the Help America Vote Act in order to effectively address the shortcomings in the system. Although we continue to support vigorous enforcement of existing legislative voting rights protections, we now know that successfully reforming the process will take additional prospective legislative pronouncements at all levels.

This election cycle provided Election Protection an opportunity to observe and monitor the impact that HAVA had on election administration at the national, state and local level. Unfortunately, what we saw confirmed fears that HAVA is an inadequate mechanism to effectively remedy voting irregularities. Although HAVA should not be the only legislative vehicle for election reform, there are ways to make it significantly more effective in fulfilling its promise to help Americans vote.

First, it is essential that advocates and citizens have the ability to avail themselves of the Act’s protections without relying on an ineffective and often counterproductive Department of Justice. HAVA needs an explicit private right of action in order to provide citizens with a viable process to redress violations of their rights. Election Protection experienced the limits of this constraint first hand. In pre-Election Day litigation attempting to enforce the mandates of HAVA, Election Protection attorneys and courts across the nation were forced to waste time arguing procedural squabbles rather than focusing on the substance of voting rights violations.

Second, we must reexamine the provisional balloting system created by HAVA. While we applaud congress for recognizing the problem of validly registered voters who fail to show up on precinct registers or who otherwise would be turned away at the polls, the provisional ballot system created by HAVA is inadequate. States across the country have enacted overly restrictive and exceedingly burdensome requirements to the counting of provisional ballots. Additionally, very few election officials and poll workers have any idea how the provisional ballot system works.

Thirdly, Congress must better equip the Election Assistance Commission with the resources it needs to effectively monitor the implementation of HAVA and by granting it the authority to issue binding, rather than recommended, directives.

We must reevaluate HAVA’s identification provisions; assess their impact on traditionally disenfranchised communities and their effectiveness in preventing fraud. Election Protection heard from thousands of voters across the nation complaining of poll workers asking for identification when they shouldn’t have, demanding more identification than required or discriminating in their application of the ID procedures.

There are, of course, many election reform issues not addressed by HAVA. We must seriously consider the impact of allowing partisan officials to remain responsible for the conduct and fairness of federal elections. What seemed like a misadvised idiosyncrasy of American elections turned into an embarrassing reality during the 2004 election cycle. We saw state and local partisan election officials privileging their party’s political success – or, sometimes, personal political ambition – over the rights of their constituency. This is disgraceful and unacceptable.

To be effective we must reconsider the way we register voters and process absentee ballots. We must explore the virtues of early voting and the limitations of the precinct system. In short, in order to effectively respond to the problems that American voters have, to protect each citizen’s constitutional right to cast a meaningful ballot, we must look at the system with a fresh set of eyes.

One word of caution before I close; as we all know, key provisions of the Voting Rights Act must be reauthorized in 2007. The Voting Rights Act, of course, is the most effective federal legislative vehicle guaranteeing our civil rights. Obviously, it is critically important that we work together to ensure that the Voting Rights Act continues on its prodigious course protecting the rights of voters across the country. Many of the incidents recorded in the EIRS database regarding racial discrimination in voting, voter suppression efforts and the failure to provide bilingual assistance speak to the criticality of the continued need for this key legislation. Reauthorization and election reform, however, are two discreet legislative priorities that should not be confused. While both aim at making our democratic system better and more responsive to the will of the electorate, they occupy mutually distinct space.

Our liberty as Americans, our national pride as citizens, rests on the greatness of our democracy – and it is great. The foundation of that democracy, however, is crumbling. Our freedoms and liberty ultimately must rely on a system of fairness and accountability. In order to be successful as a nation, Americans must be convinced of the veracity of democratic results. In order for Americans to continue to participate in the system we must be confident that our voice is heard when our ballot is cast. We have arrived at a unique moment when the failures of our system coincide with unprecedented activism and awareness about our process. I ask activists, citizens and policy makers not to let this moment recede without action.

Thank you.