LEGISLATORS FOUNDED THE NATIONAL BLACK CA 206 Hall of States Building, 444 N. Capitol St., N.W., Washington, D.C. 20001 TESTIMONY OF MARYLAND STATE SEN. CLARENCE M. MITCHELL, II! HOUSE JUDICIARY SUBCOMMITTEE ON ALABAMA VOTING FRAUD Thank you for allowing these remarks to become part Rooss A. Morey McMurtry The Justice Department evidences little commitment to furthering The National Black Caucus of State Legislators defines this lack of commitment as a national problem, preventing all Americans from achieving our historical objective: government by the best representatives chosen by the people. In the first instance, the Alabama voting fraud cases, millions NBCSL "A National Network For Political Equality!" M Alabama Voting Fraud The second issue, redistricting/reapportionment plans, shows the Justice Department taking a position that minimal increases in the number of black elected officials is sufficient within the strictures of the Voting Rights Act of 1965 and the amended version. In North Carolina, for example, the department has ignored the intent of Congress and challenged a plan which would expand the opportunities for blacks to be elected to the state legislature. In South Carolina, we have seen the legislation redistricting state senate seats being challenged by the National Association for the Advancement of Colored People. In this case, the Justice Department has said this plan is adequate even though it does not fully create the opportunities for blacks to be elected to the state senate. In Georgia, 23 counties allow sole commissioner systems which obviously dilute black voting strength. Three counties are being challenged under the Voting Rights Act for this practice and more challenges are expected. In Alabama and Florida the at-large election systems are being challenged for their exclusion of blacks from successfully seeking public office. In Mississippi, the department has, under Section 5 of the Voting Rights Act, not acted to prevent counties from using redistricting/reapportionment plans that have either not been approved or been disapproved. Challenges to these plans, implemented without approval, must be made by local citizens groups or other private entities because the Justice Department has adopted a hands-off policy. The NBCSL believes these two issues are of primary importance and we would appreciate the opportunity to bring them before the House Judiciary Committee on September 26. [The subcommittee reconvened at 1:30 p.m.] Mr. EDWARDS. The subcommittee will come to order again. This is the afternoon session of hearings on the civil rights implications of Federal voting fraud prosecutions. This morning we had people from Alabama who testified. They testified to the effect that they feel very strongly, Mr. Keeney, that much of the actions by the Federal Government and the Department of Justice are wrong and that they have an immensely chilling effect on black voter participation. I will say from the testimony that these Alabama prosecutions raise a number of troubling questions. What was the Federal interest in these cases? What was the role of the various divisions of the Justice Department? In this case, we are talking about one case in particular, in Perry County. How was the Civil Rights Division involved. Did the Criminal Division follow procedures it has established, and do these procedures adequately consider the civil rights impact an investigation and prosecution might have? In other words, we are going to ask you about the bus trips of 51⁄2 hours with old black people on them, to bring witnesses to testify before the grand jury, surrounded by FBI agents and local police and State police. It is really not a very pretty picture. Most fundamentally, do these prosecutions signal a change in enforcement of the Voting Rights Act or is it just, as I believe your testimony will state, a matter of enforcing Federal law? I am sure in the past you have been a very helpful witness, and I am sure you will help us a lot and shed light on these questions. Would you introduce your colleague, and you may proceed. STATEMENT OF HON. JOHN C. KEENEY, DEPUTY ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE Mr. KEENEY. Yes, Mr. Chairman. I have with me on my right Mr. Craig Donsanto. He is the head of our Election Fraud Branch in our Public Integrity Section. He is a career professional and has been working on election fraud violations for something like the last 14 years. Mr. Chairman, I appreciate the opportunity to appear and to try and put in perspective the Department of Justice position with respect to these Alabama matters. In the Department of Justice, you mentioned the Voting Rights Act and the enforcement, fraud enforcement. I think I can best put in perspective the attitude of the criminal division of the Department of Justice with respect to the Voting Rights Act and to election fraud by quoting Senator Williams of Delaware in 1965 when he offered an amendment to 42 U.S.C., 1973,(c). If I may, I am going to read Senator Williams' words. He articulates them much better than I can, Mr. Chairman. This is our attitude. I have always been in favor of guaranteeing to every American citizen an equal opportunity to particpate in the election process, but I feel just as strongly this guarantee is meaningless if that vote is not counted properly or if that vote is effectively cancelled by a vote that is illegally cast, or if another person illegally registers to vote. I feel that Congress, in its efforts to see to it that the integrity of a man's right to vote is protected, is obligated to see to it that the integrity of his vote itself is protected. 111 CONG. REC. 8423 (1965) Mr. Chairman, that is what we are trying to do, to protect the vote of every person and make sure it is meaningfully counted. Mr. Chairman, the Election Crimes Program of the Department of Justice is fully described in the manual, we call it "Federal Prosecution of Election Offenses." It is our manual for Federal prosecutors and investigators. It was issued originally in 1976. It was revised in 1980, 1982, and 1984. The committee has copies of all of them, Mr. Chairman. An examination of them will clearly reflect that there have been few changes in the procedures and policies of this program since 1980. Now, I understand there have been witnesses before this committee who have taken a contrary position. Let me briefly describe the role of the Public Integrity Section in the investigation of these cases. U.S. attorneys and their assistants may request the FBI to conduct preliminary inquiries into these matters. However, they cannot order full investigations, use a grand jury to subpoena witnesses or documents, or initiate criminal proceedings without the prior approval of the Public Integrity Section. The purpose of this preclearance at the departmental level is to assure that a nationwide prosecutive standard is maintained, that the federalism considerations often implicated by these cases are respected, and that Federal resources are not spent pursuing matters that have no realistic prospect of producing indictable cases under the complex statutes that govern this area. Before discussing some specific cases and investigations, let me just mention how election crime matters are in many respects unique in law enforcement. Often the most difficult aspect of election crime work is obtaining sufficient specific factual information on which to predicate criminal investigations. Election matters do not lend themselves to undercover techniques. State and Federal laws severely limit-if not entirely foreclose-the interjection of Federal law enforcement personnel into open polling places. Constitutional considerations of federalism prohibit us from conducting investigations in a manner which interferes with the actual balloting process. Fairness and impartiality demand that we act only on credible allegations which are sufficiently specific to be capable of corroboration through investigation. In this regard, the Federal response to election crime is totally reactive, and dependent upon receipt of complaints from the public. It would be particularly inappropriate for us to conduct fishing expeditions into the conduct of citizens in matters dealing with the voting process. Thus, we do not permit election crime investigations to be initiated on mere rumor, innuendo, or suspicion. Before we will authorize a criminal vote fraud investigation we must be provided with reliable witness accounts that potentially actionable fraud has occurred by identified subjects against identified victims. Now a major thrust of the hearings, Mr. Chairman, as I understand it, is the Perry County case. The investigation of vote fraud in Perry County, AL, was initiated following the receipt by U.S. Attorney Jeff Sessions, of the Southern District of Alabama in Mobile, of specific information from several black citizens, including three black officeholders, indicating that identified individuals, also black, had engaged in absentee ballot fraud during the 1984 Alabama Primary Election. Candidates for Federal offices were on the ballot in that election. This was not the first time we had received allegations concerning this type of election fraud in Perry County. Just two years earlier, in 1982, we had received quite similar complaints. We had then determined that a Federal inquiry was not appropriate to look into the 1982 allegations since the matters were being examined by a State grand jury. As it turned out, that State grand jury returned no indictments, but did issue a recommendation that, in the future, allegations of vote fraud be investigated by the Federal Government. The local district attorney joined in this recommendation. Accordingly, when we once again received allegations concerning vote fraud in the 1984 electioin, this prior experience with Perry County obviously supported the premise that the allegations were accurate. Under all these circumstances, we considered that a Federal investigation of last year's election was certainly appropriate and indeed necessary. The investigation which ensued showed that in excess of 700 absentee ballots were cast in the 1984 Alabama Primary from Perry County, that 504 of these had been procured in an organized fashion by some 12 individuals, and that 75 of the absentee ballots bore patent evidence of alteration such as obvious erasures and strike overs. The absentee ballots in Perry County had been numbered by State authorities because three black and one white candidate had specifically requested a State probate judge to order such ballot identification to assist in looking into anticipated irregularities. After a hearing, the State judge had deemed the likelihood of irregularities concerning absentee ballots to be such that she ordered their numbering. I hope you will excuse me, Mr. Chairman, from going into detail in my statement. I don't normally do this, but I want to set out in the record the procedures we followed, and how we went down the road to an indictment in this case. Hence we were able to determine the identities of, and interview all 75 voters who had cast the altered ballots and at that point we learned that 70 of them were black persons. The five white voters all stated during interviews that they had made mistakes in marking their ballots and their attempts to correct them had resulted in ballots that showed obvious alterations. Of the 70 black voters, 43 of them claimed they had authorized third parties to change their votes for certain candidates after they had originally marked and sealed their ballots. The remaining 27 black voters, however, stated that they had not known of, or approved, the changes on their ballots. These 27 ballots had all been witnessed and mailed by either Albert Turner, Evelyn Turner, or Spencer Hogue, Jr., who were officers in a local political faction known as the Perry County Civic League. This evidence served as the basis for the indictments of these persons on 27 counts of mail fraud for defrauding voters of their right to cast their ballots. In addition, evidence was developed that these three persons had themselves voted more than once. Accordingly, they were indicted for violations of title 42. Spencer Hogue |