MINUTES OF THE JOINT SENATE COMMITTEE ON GOVERNMENT AFFAIRS and ASSEMBLY COMMITTEE ON ELECTIONS AND PROCEDURES Sixty-eighth Session May 25, 1995 The Joint Senate Committee on Government Affairs and Assembly Committee on Elections and Procedures was called to order by Chairman Ann O'Connell at 4:40 p.m., on Thursday, May 25, 1995, in Room 352 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. SENATE COMMITTEE MEMBERS PRESENT: Senator Ann O'Connell, Chairman Senator Randolph J. Townsend, Vice Chairman Senator William J. Raggio Senator William R. O'Donnell Senator Dina Titus Senator Raymond C. Shaffer Senator Jon C. Porter ASSEMBLY COMMITTEE MEMBERS PRESENT: Mr. Jack D. Close, Chairman Ms. Chris Giunchigliani, Chairman Mrs. Joan A. Lambert, Vice Chairman Mr. Richard Perkins, Vice Chairman Mr. Dennis L. Allard Mr. Joseph E. Dini, Jr. Mrs. Jan Evans Mr. Thomas A. Fettic Mrs. Vivian L. Freeman Mr. David E. Humke Mrs. Jan Monaghan Mr. Bob Price GUEST LEGISLATORS PRESENT: Secretary of State Dean Heller STAFF MEMBERS PRESENT: Robert Erickson, Research Director Dana Bennett, Senior Research Analyst Teri Spraggins, Senate Committee Secretary Bobbie Mikesell, Assembly Committee Secretary OTHERS PRESENT: Mr. Dale Erquiaga, Chief Deputy Secretary of State Ms. Lucille Lusk, Nevada Concerned Citizens Ms. Kathryn Ferguson, Registrar of Voters, Clark County Mr. Tom Stown, a member of Veterans in Politics, Nevada Election Watch, and Tenth Amendment Committee in Clark County Mr. Alan Glover, Carson City Clerk Recorder ASSEMBLY BILL 619 - Makes various changes to provisions governing elections to comply with National Voter Registration Act. Senator O'Connell began the meeting by asking Secretary of State Heller if A.B. 619 was federally mandated. Secretary of State Heller replied A.B. 619 was federally mandated. Senator O'Connell then asked if A.B. 619 complied with the Tenth Amendment. Secretary of State Heller responded, "Not according to some states." Senator O'Connell then asked if any states had turned the legislation down. In responding to Senator O'Connell's inquiry, Secretary of State Heller said some states had refused to implement but were going into court proceedings at that point in time. Senator O'Connell asked for names of the states. Although Secretary of State Heller was not familiar with all of the states which had chosen to go to court, he cited California, Illinois, and possibly Michigan as states which had refused to implement and were being sued by the Federal Government. Continuing her line of questioning, Senator O'Connell confirmed with Secretary of State Heller no money was involved with A.B. 619, a mandate by the Federal Government to the state of Nevada. Secretary of State Heller explained the National Voter Registration Act, or "Federal Motor Voter" Law, passed in 1993, and A.B. 619 was the first opportunity Nevada had as a body to pass a law necessary to meet the mandate. The Act was implemented January 1, 1995. He referred to the manual, "Implementing the National Voter Registration Act of 1993: Requirements, Issues, Approaches, and Examples" (Exhibit C), and stated steps had already been taken in Nevada. The Federal Motor Voter Act did two things: established a method of voter registration for Congressional elections and changed the way local entities maintained the lists of registered voters at those elections. Secretary of State Heller continued his presentation from prepared text (Exhibit D) and offered general asides. He read a news release from the National Voter Coalition dated May 18, 1995. Close to two million new voters had registered during the first quarter of 1995. New Mexico's registrations were averaging ten times higher than 1993 at the time of the news release. Alabama registrations were six times higher in January 1995 than January of 1994. Florida has more than 202,000 citizens registered through the D.M.V., more than twice the number of any other state. Texas registered 247,000 during the first quarter of 1995. Georgia reports 183,000 registered. Senator O'Connell interjected and asked if the states were showing a higher voter turnout. Responding to her inquiry, Secretary of State Heller advised it was unknown at that point since implementation was January 1, 1995 and no election had been held since that time. Registration had been much higher in Clark County, Senator O'Connell noted. In Clark County, the total number of new registrations from January 31 through May 30, 1995, was 9,239 with implementation of The National Voter Registration Act. Of that number, agency registrations were 2,680, Secretary of State Heller said. At this point, Secretary of State Heller read a note from the Clark County Registrar of Voters which stated, "On average, we are receiving 100 more applications weekly from the agencies." About 25 percent of the new registrations in Clark County were coming through agency registration, Secretary of State Heller added. Washoe County's total registration of voters was approximately 151,000. New registrations from January 31 through May 31 was 1,796. Of the 1,796 registrations, 201 came through agency registration which showed the number of agency registrations was significantly lower in Washoe County than in Clark County. Continuing, Secretary of State Heller said one meeting had been held with the agency and department heads with the counties, and the implementation of the program had gone smoothly. He called attention to the implementation packet (Exhibit C) which, he said, had already been done in Nevada with mail-ins and with D.M.V. Court cases thus far had upheld the validity of the N.V.R.A. Secretary of State Heller at this time introduced Chief Deputy Dale Erquiaga and thanked the committees for allowing his office to address both committees together. Mr. Erquiaga, office of Secretary of State, addressed the committee, and recapped each section of the bill beginning with Sections 3 and 4 which provided for the establishment of voter registration agencies. Assemblyman Humke asked for the fiscal impact to the state and to the counties. In responding to Assemblyman Humke's question, Mr. Erquiaga informed the Secretary of State printed six months of forms, based on agencies of public assistance estimate to Secretary of State, to use from January 1 through June 30, 1995. The impact money was taken from the contingency reserve and was $18,000 for the six months. From July 1 forward in the biennium, the form printing costs and any personnel costs are built into the budgets of the individual agencies, he understood. Mr. Erquiaga could not speak to the impact on the counties, but he informed the changes for the counties dealt with new post cards which would mean increased postage and maintenance of lists. Assemblyman Humke, noting the federal legislation was passed by a failed Congress, asked if sanctions were built in by the Congress for non-compliance, and, if so, he asked what the sanctions were. Mr. Erquiaga replied he would check the Federal Act. The states which challenged initial rulings had lost, and they were forced by the Federal Government to comply. Assemblyman Allard asked for cost to the counties to change from an affidavit to an application to register to vote. In response, Mr. Erquiaga explained the counties and the Department of Motor Vehicles reprinted the forms continually, and any time a proscription of a form was changed, Secretary of State's office encouraged the counties to use up the supply. Nevada had complied with the federal law by changing the statutes and reproscribing a new form and would be willing to test the federal government for allowing one or two affidavits to go through since the application remained significantly the same. Assemblyman Allard noted Clark County had recently printed 50,000 affidavits and an order for an additional 50,000 had been printed. Mr. Erquiaga conveyed Clark County would have to use them up. Assemblyman Close, referring to page 6 of Assembly Bill 619, the declaration of where the candidates lived for 30 days, informed the Assembly Elections and Procedures Committee discussed moving the figure to 90 days, and asked if the change presented a problem. Responding, Mr. Erquiaga said the Federal law did not establish residency for candidates and so did not present a problem. As a policy issue, he could not speak for the Secretary of State's opinion. Assemblyman Close referred to page 11 of A.B. 619 and informed Assemblyman Spitler had a bill which provided additional information to the individuals whose votes were challenged where they said "this does not mean you cannot vote..." Assemblyman Close asked if that also would not be a problem with mixing. Mr. Erquiaga replied it would not. The treatment of the challenge and how the voter votes is what the federal law dictates, but the information provided relative to the challenge does not, he explained. Chairman Close referred to page 2, line 26, of A.B. 619 and suggested moving language "not later than the fifth day of each month" to page 2, line 24 after the wording "secretary of state." The Chair recognized Assemblyman Price who questioned how the Federal Act affected those states which did not require any registration to vote or those states which had same day registration where the voter could walk up to the poll, sign up and vote. Mr. Erquiaga affirmed North Dakota was the state to which Assemblyman Price was referring, and informed those states which had same day or no day registration in effect at the passage of the National Voter Registration Act in 1993 were exempt from provisions of the Act. A few other states had tried to "race in" and eliminate voter registration in an effort to get around this law. The N.V.R.A. was specific in its exemption that same day or no registration had to exist at the time of passage of the Act in 1993. Referring to Assemblyman Humke's earlier question, Mr. Erquiaga addressed Senator O'Connell and informed page A-12 of the N.V.R.A. Implementation Guide (Exhibit C) answered Assemblyman Humke's question. Civil Enforcement and Private Right of Action and Criminal Penalties were included for an election official or any person who refused to comply. Assemblywoman Giunchigliani, referring to page 1 of A.B. 619, asked which offices were for the disabled. Mr. Erquiaga, responding to her inquiry, said the Federal Act delineated those which receive monies to provide services to the disabled. Assemblywoman Giunchigliani asked the other offices declared as making the forms available. In response, Mr. Erquiaga stated as of January 1 within the Department of Employment, Training and Rehabilitation, the Rehabilitation Division; within Human Resources, the Health Division; the Division of Aging Services; the Welfare Division; the Intertribal Counsel; Women, Infants and Children Program; Department of Motor Vehicles and Public Safety; and within the Department of Business and Industry, Rural Housing. The agencies would have to be reviewed again when the legislation was passed. "We enacted it in the bear minimum for January 1, 1995. We will have to go through all the agencies again with a fine tooth comb," he advised. Assemblywoman Giunchigliani and Mr. Erquiaga discussed language on page 1, Section 3, of A.B. 619 which Mr. Erquiaga said after inserting the words, "drivers license" would read, "The offices of the department of motor vehicles and public safety that provide drivers license services to the public." Assemblywoman Giunchigliani pointed out Nevada was in compliance with everything which had happened since January or before, but advised the main point was the changing over of the affidavits to applications. Nevada would be allowed to use those before being reprinted. She questioned the other areas which Mr. Erquiaga confirmed were the inactive list and the purge. Since no purge had occurred because there had not been a presidential election, Nevada had not violated the federal law. For a time, the Attorney General of the United States sent threatening letters and threatening press releases and then realized Nevada's legislature did not convene in the state every day as it did in other states so the Attorney General had bypassed Nevada on her first list of lawsuits. Assemblywoman Giunchigliani asked if there was flexibility regarding enactment of the regulations regarding the inactive list. Mr. Erquiaga conveyed the Act should have been fully implemented on January 1. Nevada's excuse has been that legislators have not been in Carson City. "We will have to act as quickly as possible, and we are up against another statutory deadline of not being able to submit a regulation before a certain time. We will be able to demonstrate if the Federal Government does decide to bring suit that we are taking the steps necessary. Counsel seems comfortable with that," he informed. Assemblywoman Evans referenced the Preface, Page P-1, of (Exhibit C), "This document, then, is intended only as a general reference tool. Any suggestions contained in this document are offered without force of law, regulation, or advisory opinion. No decision, etc." Assemblywoman Evans asked if Mr. Erquiaga was under any kind of requirement to submit the changes of how Nevada law would now stand to the Justice Department or Federal Elections Commission. Mr. Erquiaga responded the state was under requirements to submit progress reports on the actual registrations, but not the changes Nevada makes to the law. The federal government would probably review them, he said. "The problem is they disclaimed every bit of advice they have ever given us," he said. "Your Counsel, the Attorney General's office and our office have actually taken a very narrow view of that `book'. We could have put a great many more things in A.B. 619 based on a read, and we did not," he conveyed. "We have complied sufficiently to defend ourselves and protect the taxpayers from any of these civil or criminal penalties, but I would not go so far as to say that this is what Congress intended this Act to look like in our state," he communicated. Assemblywoman Evans clarified her understanding of Mr. Erquiaga's discussion and asked him if the committee could feel comfortable that they could go ahead with A.B. 619. Mr. Erquiaga emphatically said "yes" and pointed out a letter from the Attorney General which reflected that. See (Exhibit E). Senator Porter asked Mr. Erquiaga to expand on the privacy aspect regarding registering. Mr. Erquiaga said a voter is not to be intimidated or coerced or given advice in any way during the process, but the document itself is a public document. Senator Porter stated the application was confidential. Mr. Erquiaga elaborated the conduct of the voter registration agency was delineated on Section 4 of the bill on page 2. The Congress did take pains to say that the agencies, whether D.M.V. or Welfare, shall not seek to influence a voter in any way. The law was designed to be voter friendly, to make it easy for voters, not to intimidate voters. Assemblywoman Giunchigliani referenced the Preface of the N.V.R.A., page P-1, and pointed out the word "heuristic" which was listed in the Oxford dictionary and stated "For the record, that they at least admitted what "heuristic" means, `encouraging students to discover information themselves proceeding by trial and error'". She felt the word was indicative of committee's work on N.V.R.A. There being no other questions from committee, Senator O'Connell opened public testimony. Ms. Lucille Lusk, Nevada Concerned Citizens, testified it was obvious the federally mandated N.V.R.A. would be torturous and expensive, and she did not think it was particularly voter friendly. Ms. Lusk suggested changes. She referenced A.B. 619, page 2, Section 4, line 12, "A person who works in a voter registration agency shall not:...," and page 1, Section 3, beginning at line 8, "The following offices shall serve as voter registration agencies:..." which, she stated, put a lot of people at potential risk of a felony because they could accidentally utter a political preference. Continuing, Ms. Lusk referenced page 10, lines 16 through 19, and suggested adding the language on line 19, "in the same election" after "...before on the same day..." Concluding, Ms. Lusk referenced page 24, lines 8, 9 and 10, wherein a postcard would be mailed to a person and the voter did not respond and then did not appear to vote in an election before the polls had closed in the second general election following the date of the notice. Therefore, she said, if the postcard is mailed after a general election because people don't participate, it would be four years before that could be corrected. Ms. Lusk was vehemently opposed. Ms. Kathryn Ferguson, Clark County Registrar of Voters, felt A.B. 619 was confusing. Ms. Ferguson discussed her concerns regarding A.B. 619 as it applied to Clark County and outlined in (Exhibit F). Mr. Dale Erquiaga, office of Secretary of State, provided assistance to Ms. Ferguson in her explanations to the committee. Assemblyman Price asked if Mr. Erquiaga knew of any states which had in their laws anything regarding filing frivolous challenges, and if there was any way to discourage frivolous challenges and not be detrimental to the system. In responding to Assemblyman Price's inquiry, Mr. Erquiaga explained he was not familiar with challenge statutes, but he would research the area if Assemblyman Price would like him to. Mr. Erquiaga, however, requested it not be put in A.B. 619. Ms. Ferguson continued her testimony (Exhibit F) with explanations from Mr. Erquiaga. Assemblyman Close questioned whether residency requirements could be changed in A.B. 619. Mr. Erquiaga responded residency requirements could be changed and pointed out the affidavit was sworn under penalty of perjury, and if it was frivolous, there was a penalty for perjury which Mr. Erquiaga believed was a misdemeanor. Some challenges were not sworn, but with this one, someone could be put in the county jail if they had done it just to harass a voter. Ms. Ferguson asked why this section was not limited to registered voters of the same precinct district. This presently would be unmanageable, and if the Registrar's office was required to send these by Registered Certified mail, it would be extraordinarily expensive and difficult to administer, she said. She asked if it was a federal requirement, and Mr. Erquiaga responded it was not a federal requirement, and he could not answer the questions. He would review and get back to her. There being no further questions from committee, Senator O'Connell asked for public testimony. Mr. Tom Stown, a member of Veterans in Politics, Nevada Election Watch, and the Tenth Amendment Committee in Clark County, testified in opposition to A.B. 619. His basic objection to the legislation was that it followed the guidelines of the Motor Voter Bill, another federal mandate. People could be built on the voting list for eight years and not be purged. Mr. Stown thought A.B. 619 contained a lot of bad legislation and went against the Tenth Amendment. He believed many of the mandates in A.B. 619 would cost Nevada millions of dollars and were not authorized in the Constitution. "We believe you can have illegal aliens and other people registering because there would be so many places to register that eventually it would be almost impossible to keep track of who was not supposed to be on the list," he said. He read an excerpt from a June Readers Digest article entitled "Vote Fraud, A National Disgrace." The article referenced the National Voter Registration Act, and said examiners were under orders not to challenge anyone who registered to vote. "Names of inactive voters cannot be purged for at least eight years. Congress should repeal the Motor Voter Act and states should make far more stringent attempts to verify voters identity and tighten standards for absentee ballots. Finally, election officials should begin enforcing the law. Some major cities (San Diego, Denver and Chicago) have led the way. Once local authorities get tough on voter fraud, their experience shows abuses decline. In Chicago, for example, vote fraud decreased markedly in the 1980's after United States Attorney Dan Webb brought dozens of corrupt elections officials to trial. You deal with vote fraud by making it a serious offense for people to cheat. New York Democratic State Senator Martin Connor says you send people to jail because they are striking at the heart of democracy." He concluded by stating A.B. 619 was the type of legislation the people rejected in the November election. Mr. Stown stated he voted for the Secretary of State and was upset that Secretary of State Heller submitted the bill. He asked committee to review the legislation and asked that items which puppet the Motor Voter Bill be removed. He asked committee to follow the Tenth Amendment guidelines and felt confident the legislature would do things which were best for Nevada and not just because a political party in Washington dictated something for Nevada to do. Assemblywoman Giunchigliani announced to Mr. Stown that Secretary of State Heller had no choice but to comply with N.V.R.A. and did the job he was directed to do by the statute. It should not be anything directed to him. Mr. Stown agreed and apologized for his remark. Mr. Alan Glover, Carson City Clerk Recorder, offered general comments from the perspective of a smaller county clerk regarding A.B. 619. He was in favor of A.B. 619 and complimented Mr. Erquiaga and his staff although he admitted none of the county clerks liked the legislation. He echoed Mr. Stown's comment that A.B. 619 was a federal mandate by a Congress that was not reelected. Mr. Glover, reverting to the earlier question regarding sanctions, conveyed the County Clerks had received a letter from U. S. Attorney General Reno which started out very nicely that it was an opportunity for the federal and state to work together, but the bottom line was, "If you don't, I will prosecute you to the full extent of the law." See (Exhibit G). The Justice Department would move in and take over the elections either at the Secretary of State's level or at the county level, Mr. Glover said. Mr. Glover informed when meetings were held with the state agencies and the county clerks to discuss implementation of the N.V.R.A., it was found if Welfare knew that a person who was registering to vote was not a U. S. citizen, Welfare would not tell the Registrar of Voters. That, according to Welfare, is the Clerk's responsibility to find out whether or not the person is a citizen. "We found that a little bit difficult to deal with," Mr. Glover said, because Welfare knows when they are not citizens. He asked if the committee could direct the state agencies to review. Mr. Glover testified his automation program used for elections had no way of knowing whether a voter was active or inactive, and his programs would have to be changed which could be expensive. Mr. Glover stated his office had $1800 worth of federal registration forms which were very bad forms and probably would never be used. If his office was not required to mail a sample ballot, that would greatly assist in keeping costs down. If his office was not required to publish names which are on the inactive list, costs could be lowered. However, if his office was required to publish a poll book of inactive people, costs could be large. He admitted, however, if it is not published and people come in to vote, he is not sure how to handle it. He said there were a lot of unanswered questions and he was glad Secretary of State had power for regulation. Concluding his testimony, Mr. Glover asked to go on record not opposing A.B. 619, but the National Voter Registration Act. He expressed the hope that the body would consider a resolution to Congress asking Congress to repeal the N.V.R.A. Senator Raggio questioned compliance with the N.V.R.A. by some of the states. Mr. Erquiaga, office of Secretary of State, reiterated several states did challenge the N.V.R.A. or refused to comply, and the U. S. Attorney General had brought actions in those states. California and Illinois were known to be the states. Counsel had informed the latest review of appellate opinions was that the suits were being found to be ineffective. The law is upheld. Congress crafted the N.V.R.A. so that it applied to federal elections and speaks only in terms of Congressional elections and voters who move within Congressional elections, yet the impact of the law is so sweeping, he continued, that if Nevada does not comport its election law and comment of elections to that proceeding, Nevada would have two sets of voter registration lists. Nevada would conduct two sets of elections and so constitutionally, Congress has not gone apparently beyond its authority. Congress sets the rules for federal elections, he informed, however, they had set the rules of N.V.R.A. to be so broad that the states were trapped into compliance. Before the bill is finally moved, if a state succeeds, Mr. Erquiaga stated he would advise the committee. Mr. Erquiaga noted Mr. Glover had raised the specter of illegal aliens. The issue of mental incompetents potentially registering at some of the agencies was also of concern. Mr. Erquiaga planned to meet with Counsel, the Deputy Attorneys General, for those agencies which deal with non-citizens and with mental incompetents to work out methods unrelated to election law, the processing of A.B. 619, or the processing of the National Voter Registration Act in order to assist those staff people in assisting the clerks. They have client confidentiality, and they have a lot of rules which they operate under, he said, but acknowledged it was a concern to the Secretary of State. It was a very delicate area, and it had to be addressed across the board. Senator O'Connell thanked Mr. Erquiaga for his presentation and the Assembly Committee on Elections and Procedures for their hospitality and for letting the Senate Committee on Government Affairs chair the committee. There being no further business to come before committee, the meeting was adjourned at 6:10 p.m. RESPECTFULLY SUBMITTED: Bobbie Mikesell, Committee Secretary APPROVED BY: Senator Ann O'Connell, Chairman DATE: Assemblyman Jack D. Close, Chairman Assemblywoman Chris Giunchigliani, Chairman Senate Committee on Government Affairs and Assembly Committee on Elections and Procedures May 25, 1995 Page