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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

STATE OF SOUTH CAROLINA,

CA No. 12-203Plaintiffs, Washington, DCAugust 29, 2012

vs. 9:00 a.m.

UNITED STATES OF AMERICA, ET AL., DAY 3 - AM SESSION

Defendants. Page 1 thru 160___________________________________

TRANSCRIPT OF TRIALBEFORE

DISTRICT JUDGE COLLEEN KOLLAR-KOTELLYCIRCUIT JUDGE BRETT M. KAVANAUGHDISTRICT JUDGE JOHN D. BATES

APPEARANCES:

For the Plaintiffs: H. CHRISTOPHER BARTOLOMUCCI, ESQBRIAN J. FIELD, ESQUIREMICHAEL McGINLEY, ESQUIRESTEPHEN POTENZA, ESQUIREBancroft, PLLC1919 M Street, NWSuite 470Washington, DC 20036(202) 416-0257

H. CHRISTOPHER COATES, ESQUIRE934 Compass PointCharleston, SC 29412

(843) 609 7080

ALSO PRESENT: ALAN M. WILSONAttorney General South CarolinaBRYAN STIRLINGDeputy Attorney GeneralSouth CarolinaKARL S. BOWERS, ESQUIRE


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For the Defendants: BRADLEY E. HEARD, ESQUIRERICHARD ALAN DELLHEIM, ESQUIREBRYAN L. SELLS, ESQUIREANNA M. BALDWIN, ESQUIRECATHERINE MEZA, ESQUIRE

ERIN MARIE VELANDY, ESQUIREDANIEL J. FREEMAN, ESQUIREANGELA MILLER, ESQUIREU.S. Department of JusticeCivil Rights DivisionVoting Section950 Pennsylvania Avenue, NWWashington, DC 20530(202) 353-8743

For Defendant Intervenors: GARRARD R. BEENEY, ESQUIREMICHAEL COOPER, ESQUIRETHEODORE A.B. McCOMBS, ESQUIRETALY DVORKIS, ESQUIRESEAN A. CAMONI, ESQUIREPETER STECIUK, ESQUIRESullivan & Cromwell, LLP125 Broad StreetNew York, NY 10004(212) 558-1863

NANCY ABUDU, ESQUIREAmerican Civil Liberties UnionFoundation, Inc.

230 Peachtree Street, NWSuite 1440Atlanta, GA 30303(404) 523 2721

SUSAN K. DUNN, ESQUIREAmerican Civil Liberties UnionFoundation of South Carolina

40 Calhoun StreetSuite 210Charleston, SC 29401(843) 720-1428


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ARTHUR B. SPITZER, ESQUIREAmerican Civil Liberties Unionof the Nation's Capital

4301 Connecticut Avenue, NWSuite 434

Washington, DC 20008(202) 457-0800 x113

J. GERALD HEBERT, ESQUIREThe Campaign Legal Center215 E Street, NEWashington, DC 20002(202) 736-2200

MIMI MARZIANI, ESQUIREBrennan Center for Justice161 Avenue of the Americas

12th FloorNew York, NY 10013(646) 292-8327

MARK A. POSNER, ESQUIRELawyers' Committee for CivilRights

1401 New York Avenue, NWSuite 400Washington, DC 20005(202) 662-8389

Court Reporter: Lisa M. Foradori, RPROfficial Court ReporterU.S. Courthouse, Room 6706333 Constitution Avenue, NWWashington, DC 20001(202) 354-3269

Proceedings recorded by mechanical stenography; transcriptproduced by computer-aided transcription


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INDEX TO WITNESSES

For the Plaintiffs: Page

MARCI ANDINO

Examination by Mr. Beeney 6Examination by Mr. Bowers 63Examination by Ms. Meza 74

MARILYN BOWERS

Examination by Mr. Bowers 76

Examination by Mr. Meza 99Examination by Ms. Beeney 107

M.V. HOOD, III

Examination by Mr. Bartolomucci 108


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1 P R O C E E D I N G S

2 HON. COLLEEN KOLLAR-KOTELLY: This is the case of

3 State of South Carolina versus the United States et al. and

4 Intervenor-Defendants et al., 12-CV-203. I will not have

5 counsel identify themselves again.

6 In looking at the timing of it, assuming that we

7 progress as we have, I've talked to the other two judges, and

8 this assumes that we progress in the manner that we've done.

9 We can, I think, have a little -- we have a little extra time

10 on Friday. This assumes this progresses. And we're willing

11 to give 30 extra minutes to South Carolina and 30 extra

12 minutes to the defendants. I don't know whether DOJ didn't

13 ask for extra time. So if not, it can go to the intervenors.

14 This assumes that this moves along. But so far we have been

15 pretty good.

16 All right. Then I believe we had stopped with Ms.

17 Andino. Ms. Andino, if you'd come on up, and counsel. So Ms.

18 Andino and Mr. Beeney and the two crosses.

19 Thereupon,

20 MARCI ANDINO, resumed the stand,

21 the witness herein, having been previously duly sworn, was

22 examined and testified as follows:

23 HON. COLLEEN KOLLAR-KOTELLY: Good morning,

24 Ms. Andino.

25 THE WITNESS: Good morning.


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1 HON. COLLEEN KOLLAR-KOTELLY: Go ahead.

2 MR. BEENEY: Thank you, Your Honor.

3 EXAMINATION CONTINUED

4 BY MR. BEENEY:

5 Q. Good morning, Ms. Andino.

6 A. Good morning.

7 Q. Ms. Andino, I want to start by just discussing for a

8 moment or two the State Election Commission photo registration

9 card that is not yet available but will be required under the

10 act. Okay? In order to get one, a voter will have to go to

11 the county election office in the county seat, is that right?

12 A. That's correct, if the office is in the county seat.

13 Q. Are there places where they are not in the county

14 seats?

15 A. In Charleston County.

16 Q. In any of the other 46 counties, or in the other 45,

17 are they all in the county seat?

18 A. I believe they are. And in Beaufort County they have a

19 satellite office outside of the county seat as well.

20 Q. I want to show you Defendant-Intervenors' Exhibit 418,

21 and as we're pulling it up, it's a map of the state that we

22 introduced earlier in the trial with Senator Clemmons, I

23 believe, that shows by county the residents who are African

24 American of the voting age population. And superimposed on

25 those we have put in what really show up as kind of squiggly


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1 lines, the public transportation that is available. And we've

2 compared that with your exhibit of county by county registered

3 voters who don't have a DMV-issued photo ID that you sent to

4 the Senate. Do you remember that?

5 A. Yes, I do.

6 Q. That list I think is Defendant-Intervenors' 48. And

7 what we've done is in these five counties where there is no

8 public transportation except around the city in Orangeburg,

9 where there is the highest percentage in the state of African

10 American voting age population, we've counted up the nonwhite

11 persons that you've identified for the Senate who don't have a

12 DMV-issued ID and it comes out 7,018 people.

13 And my question is, are there any plans that

14 you're aware of on the part of the election commission or the

15 state, to try to help in some way any of these 7,000 people,

16 who we know don't have driver's licenses and we know don't

17 have access to public transportation, to get to the county

18 seat so they can get a DMV, quote, free, quote, issued ID?

19 A. We will, once, if there's -- if preclearance is

20 granted, of course, we will take the bus and we'll concentrate

21 on areas where there's a higher percentage of people that

22 potentially may not have photo IDs. And then counties will

23 also provide events and do things to help reach those people.

24 Q. You only have one bus, is that right?

25 A. That's correct.


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1 Q. And so whatever you can do with one bus is limited by

2 the fact that you have a single bus?

3 A. It is.

4 Q. And you're not aware of any other plan to help these

5 people get to the county seats so they can get their ID?

6 A. No.

7 Q. Now, requiring these people to get to the county seat,

8 I think we discussed at some point that you were in agreement

9 that if people had to go to the county seat to vote it would

10 drastically reduce turnout. Do you remember that?

11 A. Not really.

12 Q. Do you remember we had a discussion, and I can show you

13 in your deposition, about if you had to vote at the county

14 seat there was, I think you said that it was likely or it was

15 probable that that would have a drastic effect on turnout?

16 A. I believe it would have an effect on the turnout, yes.

17 Q. And it would drastically reduce turnout, isn't that

18 fair?

19 A. Possibly.

20 Q. Doesn't it follow that if these 178,000 people have to

21 get to a county seat to get their ID in order to vote, that it

22 will also reduce turnout among those people because they'd

23 have to get to the county seat as a precondition to voting?

24 A. Unless they have a reasonable -- or that could be a

25 reasonable impediment, or they may have a religious objection,


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1 or they may have another form of ID. We were only looking at

2 driver's license and other IDs issued by DMV.

3 Q. Right. So they may have a passport or they may have a

4 military ID. But apart from that, if they want to vote in

5 person, regular ballot, like their neighbors, they would have

6 to get to the county seat?

7 A. Yes.

8 Q. Just another quick question about the photo IDs and

9 providing photo IDs. Your plan is to provide each of the

10 counties except the three largest counties one webcam camera

11 like the kind you can buy at Best Buy, is that right?

12 A. I believe so. I'm not sure of the exact model that

13 we've tested.

14 Q. I think the last time we spoke you told us that you

15 actually didn't have a model identified, but it was the kind

16 of webcam you buy at Best Buy?

17 A. We may have a specific model. If we do, I mean, I

18 don't know, I couldn't tell you off the top of my head, but I

19 do know that our IT staff has tested a specific camera.

20 Q. Do you remember telling us in July it was the kind of

21 camera that you could walk into Best Buy and get?

22 A. Yes.

23 Q. The intent is to print a black and white photo with a

24 laser printer and put it on the card?

25 A. Yes.


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1 Q. Now, in terms of the counties and the way they run

2 their elections and the way they staff their elections, it's

3 your view that on election day the counties could probably use

4 twice as many people as they have, is that right?

5 A. On election day, yes.

6 Q. And on election day there are 2,100 precincts where

7 people can vote, and there are 20,000 poll managers?

8 A. Roughly, yes.

9 Q. And they get paid $60 to train for a few hours and then

10 they get paid $60 to spend 12 hours at the poll on election

11 day?

12 A. That is correct except for the clerk of each polling

13 place, they get an additional $60.

14 Q. And you referred to the poll managers when we talked

15 about them as basically volunteers. Do you remember that?

16 A. Yes.

17 Q. And the staff -- excuse me. Withdrawn. The State

18 Election Commission can offer suggestions to poll managers,

19 but you have no basis to require them to follow your guidance?

20 A. No.

21 Q. And if the county says to the poll managers, we

22 disagree with the way the State Election Commission is

23 interpreting this and you're going to do it the way we tell

24 you, there's nothing you can do to prevent that?

25 A. No.


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1 Q. And there are problems, as I suppose there always are,

2 with election administration at the county level, right?

3 A. Sometimes, yes.

4 Q. Did you happen to read or hear Representative Clemmons'

5 testimony about how the poll managers were giving voters, I

6 think he referred to it as unrequested assistance in the

7 actual voting booth?

8 A. I did not.

9 Q. Now, at the end of the 2008 election, you do a little

10 bit of a recap in a document that you refer to as lessons

11 learned, is that right?


13 Q. And you try to figure out how you're going to make

14 elections better based on what you saw in the previous

15 election, is that right?

16 A. It is.

17 Q. And I want to just ask you a couple things that are in

18 that lessons learned procedure. And one of them is that

19 several of the counties don't use the State Election

20 Commission training online for the poll managers, right?


22 Q. And the online training is the only way that the State

23 Election Commission directly trains poll managers, right? And

24 by directly, I mean the other way you do it is you provide

25 information to the county and then the county trains its poll


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1 managers. Those are the two ways, right?

2 A. That's right.

3 Q. So many of the counties don't have their poll managers

4 take the online training that you offer?

5 A. That's right.

6 Q. And another thing that you concluded from the 2008

7 election is that county commissioners are not educated about

8 how to rule on provisional ballots. Do you remember that?

9 A. No, I don't.

10 Q. Let's turn to Defendant-Intervenor Exhibit 6. And

11 Ms. Andino, this is a page -- do you recognize this as a page

12 from the 2008 election learned document?

13 A. I do.

14 Q. And this is the entry that I'm referring to right here

15 (indicating). "Commissioners are not educated about how to

16 rule on provisional ballots." Do you recall that being a

17 concern with the 2008 election?

18 A. Yes.

19 Q. And in fact, although state law requires it, according

20 to the 2011 State Election Commission accountability report,

21 you had 82 county election officials who were not trained, in

22 violation of state law, is that correct?

23 A. I believe so. I don't know the number off the top of

24 my head.

25 Q. But you can agree that it's of that magnitude of people


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1 who aren't trained?

2 A. It's a lower number today than it was in 2008.

3 Q. This is the 2011 accountability report.

4 A. Okay.

5 Q. So in 2011, I don't want to take the time to show you

6 the document, but it does, I will represent to you, say that

7 there are 82 county election officials who are not trained, in

8 violation of state law. And you can't disagree with that, can

9 you?

10 A. No.

11 Q. Now, I want to turn to the guidelines that you prepared

12 that were produced to the defendants and the

13 defendant-intervenors on August 14th. And I believe those are

14 Defendant-Intervenor Exhibit 5 -- 505. Sorry. Thank you.

15 HON. COLLEEN KOLLAR-KOTELLY: I'm sorry. What was

16 it?

17 MR. BEENEY: 505, Your Honor.

18 BY MR. BEENEY:

19 Q. Ms. Andino, yesterday you mentioned to us that you

20 certainly want R54 implemented in ways in which you're going

21 to err in favor of the voters, is that right?


23 Q. Is there anything in Exhibit 505 that says that to the

24 counties or to the poll managers?

25 A. I'm not sure without seeing the entire document.


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1 Q. Let me see if I can give you a copy of it. All right,

2 we'll pull that out. Let me move on while we're pulling that

3 out, Ms. Andino. And poll managers --

4 MR. BEENEY: Your Honor, may we approach?

5 HON. COLLEEN KOLLAR-KOTELLY: Yes.

6 BY MR. BEENEY:

7 Q. Ms. Andino, is there anything in Exhibit 505 that tells

8 county officials or poll managers to err on the side of

9 voters?

10 A. I haven't read every word, but I don't see where it

11 says those specific words.

12 Q. Do you think there's any words in there that are

13 intended to convey that impression and that you believe county

14 officials or poll managers will understand that your guidance

15 is to err on the side of the voter?

16 A. I don't know if it's specifically in here, but that's

17 certainly what we always communicate to poll managers and to

18 county election officials.

19 Q. So there's nothing different with respect to R54 in

20 terms of the guidance about erring on the side of the voter,

21 that's just SOP, standard operating procedure?

22 A. Yes.

23 Q. Now, these 20,000 poll managers, you provided them with

24 some guidance in this section here of Exhibit 505 that gives

25 them a definition of reasonable impediment, right?


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1 A. Yes.

2 Q. And it gives them some nonexclusive examples of

3 reasonable impediment, right?


5 Q. And is the purpose of this so they can recognize what

6 is a reasonable impediment and what is not?

7 A. The purpose is to give them some guidance.

8 Q. As to how do define reasonable impediment?

9 A. Yes.

10 Q. Now, you have not given any guidance in here or the

11 training materials as to what current and valid means, is that

12 right?

13 A. I don't believe so.

14 Q. And you haven't given any guidance on what constitutes

15 a military ID, is that right?

16 A. No.

17 Q. Now, Exhibit 505 -- and if we can turn to page 2, also

18 contemplates in section 3(b)(2), which is right here if I've

19 got it right, that you're telling the poll managers, quote,

20 "If completing for reasonable impediment, voter must list

21 impediment unless disclosure is protected by state or federal

22 law." You haven't trained anybody on what kind of information

23 is protected by state or federal law, have you?

24 A. We haven't done any training yet.

25 Q. Do you have any training materials that are drafted


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1 that would allow a poll manager to be trained as to what is

2 protected by state or federal law?

3 A. No.

4 Q. Now, I'd like to go through with you if we can,

5 Ms. Andino, exactly how you see on voting day R54 and

6 particularly the reasonable impediment provision, how it will

7 be implemented and how it will work. Okay? So I'm a voter

8 and I walk into the polling place and there is a check-in

9 table, is that right?

10 A. Yes.

11 Q. And the poll manager sitting at the check-in table will

12 ask me for one of the five required R54 IDs, correct?


14 Q. And if I say I don't have one, the poll manager will

15 say is there a reason beyond your control that created any

16 obstacle to you obtaining one of the necessary IDs, or do you

17 have a religious objection to being photographed?

18 A. Yes.

19 Q. And you believe that most South Carolina voters will

20 have no problem understanding that?

21 A. I believe so.

22 Q. Now, would you agree with me that asking that question

23 invites a dialogue between the voter and the poll manager, and

24 that the voter is likely to respond to that question with

25 questions of his or her own?


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1 A. That's possible.

2 Q. And you haven't suggested to the poll manager what they

3 do to answer any questions that a voter may have?

4 A. Not specifically.

5 Q. Now, if a voter is not aware of the law, they are not

6 going to know that they have to go to the county seat and that

7 transportation could be a reasonable impediment. Maybe I can

8 ask the question in a better way. If a voter doesn't know of

9 the law, they are not going to know what a reasonable

10 impediment could possibly be, is that right?

11 A. It's possible.

12 Q. Well, how is it possible in the reverse? If I don't

13 know what the law is, how could I possibly know what my

14 individual circumstances are that would constitute a

15 reasonable impediment to not getting a photo ID if I don't

16 know how I can get one?

17 A. I think it would invite a conversation between the poll

18 manager.

19 Q. Now, if a voter says yes, and then let's put aside the

20 conversations that we've been having about who determines

21 whether a reasonable impediment is reasonable. But if a voter

22 says yes, the voter is handed a reasonable impediment envelope

23 with a printed affidavit on it with certain blanks, is that

24 right?



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1 Q. And the voter has to fill in the blanks, putting down

2 the reasons for the reasonable impediment, or not, depending

3 upon whoever may have any knowledge of state or federal law

4 protecting privacy, is that correct?

5 A. Yes. Or I believe the poll manager could also assist

6 and fill that out for them.

7 Q. So if the voter is illiterate, the poll manager will

8 help them read the affidavit and help them write out what they

9 want to write out in terms of the reasonable impediment?

10 A. That's right.

11 Q. And the voter has got no way of verifying, since they

12 are illiterate, that the poll manager is writing down what

13 they are telling them to write down?

14 A. Well, there are other people there and they could

15 certainly ask for assistance.

16 Q. So there are other people there, including poll

17 watchers representing the candidates, watching this whole

18 process go on? Excuse me. Poll watchers representing the

19 candidates watching this whole process go on?

20 A. Yes.

21 Q. Now, if a notary is present -- and we'll get to what

22 may or may not happen if one is not -- the voter presents the

23 affidavit to the notary, and under state law the notary has to

24 ask the voter for some proof that the voter is the person who

25 the voter claims to be unless the notary knows them?


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1 A. Yes, or unless there's a credible witness or someone

2 else there that knows the voter.

3 Q. So if I'm the voter, I've been told I can't vote

4 because I don't have the required ID, that I have to sign an

5 affidavit, and then I take it to somebody else, who tells me I

6 need to show them an ID to prove who I am. Do I have that

7 right?

8 A. No. You haven't been told that you can't vote.

9 Q. Well, I've been told I can't go to the poll and pull

10 the lever. I've been told I have to vote a different way.

11 A. Okay.

12 Q. Is that right?

13 A. Well, we don't have levers, but yes.

14 Q. Sorry. I haven't voted in South Carolina, which

15 everybody will be happy to hear. So I'm told I can't vote by

16 going to the booth, that I have to do it by reasonable

17 impediment because I don't have an ID, and then someone that I

18 take the ballot envelope to tells me I have to prove who I am.

19 A. Yes.

20 Q. Is that likely in your view to be a source of

21 confusion?

22 A. It could potentially, but a person may have their voter

23 registration card without a photograph, or some other document

24 that would be acceptable to the notary.

25 Q. And are you aware, Ms. Andino, that the notary handbook


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1 for the state of South Carolina suggests that the first thing

2 that the notary asks is for a photo ID?

3 A. I'm not familiar with the handbook. I've seen it but

4 I'm not versed in it.

5 Q. And what Defendant's Exhibit 505 suggests to the notary

6 in section 3(b)(4) on page 2 of Exhibit 505 is that the notary

7 should accept the non-photo voter registration card, is that

8 right?

9 A. Yes.

10 Q. So the State Election Commission is saying to the

11 notary, we won't accept that card to prove who the person is

12 to vote, but you ought to accept that card to prove who the

13 person is to execute an affidavit?

14 A. Well, if this is precleared, then we will have a law

15 that will require a photo ID, so we won't be able to accept a

16 voter registration card without the ID -- or without the

17 photo.

18 Q. Right. So your message to the notary is, accept what

19 we can't accept under the law for voting?

20 A. Yes.

21 Q. I think when we spoke on Friday, I think you told us

22 that it would be not unreasonable for a notary to say, you

23 won't take it to prove who this person is, I'm not going to

24 take it to prove who a person is. Do you remember that?

25 A. I remember our discussion on Friday about that, yes.


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1 Q. Do you remember you agreeing that that would not be an

2 unreasonable position for a notary to take?

3 A. It may not.

4 Q. Now, we also I think agreed on Friday that it was

5 reasonable for a notary to say R54 is state policy that you

6 can't prove who you are with a non-photo registration card.

7 You remember we agreed that that also would be a not

8 unreasonable position for a notary to take?

9 A. Yes.

10 Q. Now, if a voter doesn't have proof satisfactory to --

11 under the assumption that there are 2,100 notaries in the

12 2,100 precincts -- if the voter doesn't have proof that is

13 acceptable to that notary, the voter won't get a ballot, is

14 that right?

15 A. Yes.

16 Q. So 2,100 notaries, applying state guidelines, over

17 which you have no control, get to decide whether they are

18 willing to or not willing to notarize an affidavit. And that

19 decision is a decision that determines whether the person gets

20 a ballot to exercise their franchise.

21 A. Yes.

22 Q. Now, I want to just briefly delve back into a couple of

23 issues about if the notary -- if there is no notary there.

24 And again, just so we're clear, Ms. Andino, you've known

25 for -- I hope I have the period right, but it's been several


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1 weeks at least, if not a few months, that the state has taken

2 the position that the reasonable impediment affidavit has to

3 be notarized, right?

4 A. I've known for a few weeks.

5 Q. And as of Friday you could not identify a single notary

6 in the state of South Carolina who was willing to sit at the

7 November election and not charge a fee for notarizing an

8 affidavit, is that right?

9 A. We identified a number of poll managers who are

10 notaries, and it is something that the county election

11 commissions and not the State Election Commission would be

12 identifying. So I would not personally identify those.

13 Q. No, I understand that. But you personally and the

14 State Election Commission is not aware of a single notary who

15 has been willing to do what you think needs to be done?

16 A. I have not talked to any notaries about doing this.

17 Q. And none of the counties have said we've got somebody?

18 A. They haven't indicated either way.

19 Q. Well, didn't one county official tell you that this

20 whole process was ridiculous?

21 A. One county election official did post that on

22 ElectionNet.

23 Q. So that might be an indication of how they are feeling

24 about trying to get the notaries.

25 A. Well, quite often they use ElectionNet to vent, but


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1 when it comes right down to it, they are going to do what we

2 ask them to do.

3 Q. But at the end of the day, you don't know of any single

4 person who's agreed to sit as a notary?

5 A. Not personally.

6 Q. Now, you talked yesterday about asking the counties to

7 count reasonable impediment votes through the affidavit even

8 if they are not notarized. Do you remember that?

9 A. Yes.

10 Q. Now, there is no conceivable way that the county could

11 do that if someone at the certification hearing on Friday

12 challenges the ballot, can they?

13 A. It depends. The burden of proof is going to be on the

14 challenger to present grounds that that affidavit is false.

15 Q. Well, suppose someone representing one of the

16 candidates shows up at the ballot challenge procedure on the

17 Friday that the vote is being certified, and says, you can't

18 count that because it's not notarized, and under state law it

19 has to be an affidavit that is notarized. Now, if someone

20 challenges that, it's inconceivable that the county would

21 accept that vote, isn't it?

22 A. You know, not really. There's a procedure in election

23 law that allows polls to be opened if none of the poll

24 managers show up. Voters can take over the polling place and

25 run the polling place. And I think that that just goes to


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1 show that voting must take place, that the polls must open at

2 7:00 o'clock and, you know, if there is a situation where,

3 through no fault of the voter, that there's not a notary

4 available, our poll managers are authorized to administer

5 oaths and, you know, I'm not going to sit here and say I would

6 disenfranchise any voter, because it's not their fault that we

7 didn't have a notary available. We'll make every attempt to

8 have a notary in every polling place, but if something

9 unforeseen happens and there's not one there, voting still has

10 to go on.

11 Q. Well, voting may have to go on, but there's nothing in

12 state law that says that everybody has to vote, is there?

13 A. No.

14 Q. So there's nothing in state law that says anybody who

15 wants to vote gets a chance to vote regardless of their

16 qualifications?

17 A. No, but if they are standing there and they want to

18 vote and they say they have a reasonable impediment, I'm not

19 going to turn them away because we don't have a notary.

20 Q. But we agree the law requires a reasonable impediment

21 vote to be notarized?

22 A. The law requires the affidavit to be completed.

23 Q. Which it requires a notary?

24 A. That's what we've just learned.

25 Q. Now, do you know of any other situation in which, to


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1 not disenfranchise people, you've been asking the county

2 officials to ignore legal requirements?

3 A. No.

4 HON. COLLEEN KOLLAR-KOTELLY: Can I just intercede

5 here for a second just on this. You've got -- let's assume

6 that the reasonable impediment affidavit, notarized or not,

7 arrives for the county to consider it. At what point between

8 election day and Saturday, when it's certified, would the

9 county commissioners meet to consider any challenges? Do you

10 know?

11 THE WITNESS: Yes, they meet on Thursday following

12 a primary and on Friday following a general election.

13 HON. COLLEEN KOLLAR-KOTELLY: Okay. How would the

14 voter get any information that somebody is going to go and

15 challenge this? In other words, if somebody comes up and

16 says, well, you know, it's a lie, the reasonable impediment

17 the voter has listed is not true. How will the voter know to

18 come and challenge that?

19 THE WITNESS: The voter gets a notice of the

20 provisional ballot hearing, but I think that there would be

21 some indication at the polling place when the vote was cast,

22 because other than that, those names aren't made public

23 between election day and when the provisional ballot hearing

24 takes place. So it's not like you could vote and then later

25 on I could find out you cast a provisional ballot. Somebody


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1 would almost need to be at the polling place at that time.

2 HON. COLLEEN KOLLAR-KOTELLY: So if they put lack

3 of transportation, it went forward and got to the county

4 commissioners, there would be nobody who would have notice out

5 in the public that that is what was put down and the person

6 may have had a car or something, so that they could come and

7 challenge it?

8 THE WITNESS: Right, because those envelopes are

9 dropped into the ballot box and they are not made public.

10 HON. COLLEEN KOLLAR-KOTELLY: How would, if there

11 is some challenge by somebody, the poll watcher that's there

12 who knows them and feels that there's some other reason, or

13 for some reason wants to put a challenge in, how would they

14 actually get notice between Tuesday, showing up for Thursday

15 or Friday, to be able to, the voter, get notice?

16 In other words, if somebody comes in to challenge

17 it, the voter you said would get some sort of notice that this

18 is happening so they could appear and respond to it. How

19 would they know, if the election is Tuesday, it goes to them

20 and then they have a hearing either Thursday or Friday?

21 THE WITNESS: The voter is given notice at the

22 polling place of the provisional ballot hearing.

23 HON. COLLEEN KOLLAR-KOTELLY: So they are given

24 notice that there will be generally a provisional ballot

25 hearing. So every voter would get this notice?


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1 THE WITNESS: Yes, everybody who casts a

2 provisional ballot.

3 HON. COLLEEN KOLLAR-KOTELLY: So you cast a

4 provisional ballot and you get notice of this hearing. You

5 don't know whether your reasonable impediment affidavit is

6 challenged or not, but you're expected to check somehow or

7 find out? How would you know whether it's worth showing up?

8 THE WITNESS: There's not a way in place that they

9 would know.

10 HON. COLLEEN KOLLAR-KOTELLY: Okay. So you get the

11 provisional ballot, you're told that there is a hearing and

12 somebody could or could not come in and challenge your -- you

13 know. So if you want to make sure that it gets counted, maybe

14 you should show up. Is that the theory?

15 THE WITNESS: Yeah, that's the current process with

16 provisional ballots.

17 HON. COLLEEN KOLLAR-KOTELLY: Okay. Is that true

18 of any provisional ballot?

19 THE WITNESS: Yes.

20 HON. COLLEEN KOLLAR-KOTELLY: Under the current

21 law.

22 THE WITNESS: It is.

23 HON. COLLEEN KOLLAR-KOTELLY: So if you get a

24 provisional ballot, they give you a notice that they are going

25 to have a hearing, and so if you want to make sure your vote


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1 counts, you'd show up at that as well, in essence?

2 THE WITNESS: Yes.

3 HON. COLLEEN KOLLAR-KOTELLY: Okay.

4 THE WITNESS: But the voter is not required to be

5 there.

6 HON. COLLEEN KOLLAR-KOTELLY: But if somebody

7 decides to knock it out, you're not there, right, so you have

8 no way of responding?

9 THE WITNESS: Right.

10 HON. COLLEEN KOLLAR-KOTELLY: If I could just ask

11 one other thing, slightly different. For some people who

12 simply come in and forget their ID. They've got a driver's

13 license at home, they forgot to bring it, they brought their

14 voter registration. Again, they get a provisional ballot, as

15 I understand it. Not the reasonable impediment, but

16 provisional ballot. And do they, when they -- if they have to

17 go back home and whatever, get it, can they go back to the

18 polling place, or do they have to go to the commissioner, you

19 know, wherever the county commissioners are?

20 THE WITNESS: Under current law, if they don't have

21 their ID with them, then they are not given a ballot at all

22 and they would have to go home and then return to the polling

23 place. Under the new law, then they could vote a provisional

24 ballot. They could -- and then show up any time at the voter

25 registration and election office between the election and the


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1 provisional ballot hearing to show their ID.

2 HON. JOHN D. BATES: That would be at the county

3 seat.

4 THE WITNESS: Yes. Yes.

5 HON. COLLEEN KOLLAR-KOTELLY: And they would be

6 given notice that they have to come back with their driver's

7 license -- I'm assuming they've got one. And they'd either

8 have to -- so they'd have to go to the county seat. They

9 couldn't just show up at the provisional challenge thing and

10 present it there?

11 THE WITNESS: They could show up at the

12 provisional.

13 HON. COLLEEN KOLLAR-KOTELLY: Okay. Those are my

14 questions.

15 BY MR. BEENEY:

16 Q. Ms. Andino, just to follow up a little bit on some of

17 the Court's questions. If my reasonable impediment is I have

18 no transportation to the county seat, I have to get to the

19 county seat to defend that, right?

20 A. Not unless it's challenged.

21 Q. Well, if it's challenged, the only way I can defend it

22 is to get to the county seat, which might suggest to a county

23 commissioner that a lack of transportation reasonable

24 impediment is false, since you're standing in front of me

25 trying to defend your ballot.


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1 A. Yes.

2 Q. Now, again, just to follow up on a couple of the

3 Court's questions. At the polls there are people representing

4 the candidates, right?

5 A. Yes, we have poll watchers.

6 Q. And so if I was a poll watcher, I get to watch what

7 goes on at the table, the check-in table where all this is

8 happening, right?

9 A. Yes.

10 Q. And if I wanted to, for whatever reason I may have, I

11 could write down the name of every African American who voted

12 by reasonable impediment and show up on Friday and challenge

13 every one of those if I wanted to, right?

14 A. Yes.

15 Q. And there's no way that our hypothetical African

16 American voter who's getting challenged would have any idea in

17 the world that that's what's happening, is that correct?


19 HON. COLLEEN KOLLAR-KOTELLY: So the poll watchers

20 have access to the names?

21 THE WITNESS: The poll watchers are there to watch

22 the process, and they can come over and look at the voter

23 registration list and the poll list.


25


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1 BY MR. BEENEY:

2 Q. Ms. Andino, on the issue of saying to the counties,

3 please ignore the requirements of R54 that the reasonable

4 impediment affidavit be notarized, do you think that asking

5 counties to ignore the requirements of state law somehow has a

6 negative effect on people's confidence in the electoral

7 system?

8 A. I think people have confidence when voters are allowed

9 to vote and they are not disenfranchised.

10 Q. Even if the process to get there requires you to ignore

11 and violate state law?

12 A. R54 doesn't specifically say it has to be signed by a

13 notary.

14 Q. Well, R54, I mean, there are just really not a lot of

15 steps here. It's just two steps. R54 says it's got to be an

16 affidavit, and the state says it can't be an affidavit unless

17 it's notarized, right?

18 A. That's what I hear.

19 Q. I also on this topic want to follow up on one of the

20 Court's questions from yesterday. There was a question, do

21 you recall, about if the county election commission decides

22 that the affidavit is false but the voter is there with an ID

23 that's acceptable under R54, I think you said the vote would

24 be counted, right?

25 A. It should be.


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1 Q. Well, I'm confused about that because the only way the

2 person who shows up on Friday has voted on Tuesday is by the

3 reasonable impediment affidavit, and now that's being thrown

4 out, so what is the vote that is going to be counted on Friday

5 if I can prove who I am?

6 A. Between Tuesday and Friday, the individual may have had

7 a chance to go and get one of the acceptable forms of ID. And

8 maybe the reasonable impediment applied on Tuesday, but

9 they've overcome that because they have received an ID. You

10 know, they are at the county office, they may have gotten one

11 before the challenged ballot hearing.

12 We're going to make every attempt to, if we can

13 identify the person and that's the person who voted, to count

14 their vote.

15 Q. I'm not disagreeing under this hypothetical that the

16 person doesn't have a proper ID. I think what I'm disagreeing

17 with you about is that on Tuesday, the only method by which I

18 voted was the reasonable impediment affidavit, and now that's

19 being thrown out because it was determined to be false. So

20 what vote do I have that I can prove who I am, because the

21 only way I voted on Tuesday is thrown out?

22 A. Perhaps it was proven to be false, but if the person

23 then has an ID and you know that's who voted, why wouldn't you

24 count their vote?

25 Q. Because the law tells me if I think the affidavit is


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1 false, I have to throw it out. Is this another place where

2 you're asking the counties to ignore the requirements of R54?

3 A. I don't really believe I'm asking them to require -- or

4 asking the county to ignore the requirements. I'm trying to

5 meet every aspect of the law. We're lawful people, we follow

6 the law, but there are some areas that are gray, and we're

7 going to try to err on the side of the voter and count their

8 vote if they are entitled to vote.

9 Q. What is your view about if the county commission

10 decides that a reasonable impediment vote by affidavit, that

11 the affidavit is false, do they then have to throw out the

12 vote, or can they still accept it?

13 A. If the county believes it's false?

14 Q. Yes, ma'am.

15 A. They should not count it.

16 Q. So if the affidavit is false, then the only vote that

17 I've cast on Tuesday is gone on Friday, is that correct?

18 A. The envelope is still sitting there.

19 Q. No, but they are not allowing that because they believe

20 the affidavit is false, so there's nothing left, there is no

21 other way that I voted that can be counted.

22 A. The affidavit may have been true on Tuesday.

23 Q. No, but -- I hate to interrupt you, but my hypothetical

24 is, based on what you just told me, that they have to throw it

25 out if it's false, my hypothetical is the affidavit is false


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1 and the county is not going to count it. So even if I can

2 prove who I am on Friday, what vote is there to be counted?

3 A. The whole reason that the person voted using the

4 reasonable impediment on Tuesday is because they didn't have

5 an ID.

6 Q. So if I have an ID on Friday, even though the

7 reasonable impediment affidavit is false, you're asking the

8 county to open up that envelope and count what is in that

9 envelope?

10 A. If they have an ID on Friday that they did not have on

11 Tuesday, yes.

12 Q. Even if the determination is that the affidavit that

13 was submitted with the ballot under the reasonable impediment

14 exception is false?

15 A. Yes.

16 HON. JOHN D. BATES: How is the county

17 commissioner, Mary Smith, going to know that that's your view

18 unless they happen to in every instance call you up and get

19 that view and then choose to follow it? Might not different

20 county commissioners have different assessments of just what

21 they should do in that situation?

22 THE WITNESS: It is possible and, you know, we will

23 try to cover that through training, and as situations come up.

24 I mean, these are things that we didn't think about three

25 weeks ago that are being thrown out. And you know, we'll


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1 certainly try to incorporate that into our training, just as,

2 after we go through the first election, or every election, we

3 always do a lessons learned.

4 So there will be situations that we need to

5 address, and we will do that in future training materials.

6 We're just taking -- we're doing the best we can right now to

7 anticipate the situations, and as things came up in

8 depositions, we adjusted, and we will adjust accordingly after

9 this.

10 HON. JOHN D. BATES: You're being hit, Ms.

11 Andino -- and I say this complimenting -- you're being hit

12 with a lot of different situations in the questioning today,

13 not only by counsel but by members of the Court. And some of

14 them are new to you, and you've admitted that. And in

15 deposition that happened as well.

16 Are you confident that all of these hypotheticals

17 and situations that are being thrown at you, you're going to

18 be able to incorporate into training to give to all these

19 20,000 poll watchers and all the county commissioners involved

20 in making decisions? Do you have confidence that you'll be

21 able to do that?

22 THE WITNESS: We are going to do the best that we

23 can.

24 HON. JOHN D. BATES: I understand you'll do the

25 best you can. But I'm asking you, are you confident that you


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1 will be able to do comprehensive training that covers all of

2 these different kind of situations?

3 THE WITNESS: I'm confident that we're going to

4 cover as much as we can. And you know, I'm also sure that

5 there will be something that takes place on election day that

6 we haven't thought of.

7 HON. JOHN D. BATES: But that happens every

8 election day.

9 THE WITNESS: That happens every election day, it's

10 just a very volatile and always-changing environment that we

11 work in. So when there's a new law, you know, we do the best

12 we can to get out procedures, but sometimes they have to be

13 amended.

14 HON. JOHN D. BATES: One more hypothetical based on

15 something that you said a moment ago, I think. If someone

16 has, a voter has gone through this provisional process with

17 the affidavit, and then they come in to the county

18 commissioners on the Saturday challenge day, or Friday

19 challenge day, whatever it is, and they say -- because they

20 are worried that someone is going to challenge it and say that

21 the reasonable impediment they came up with was false. And

22 they say, ah, in the meantime, in the meantime, since Tuesday,

23 I've gone and gotten this photo voter ID. Is that going to

24 enable them then to vote, even if the affidavit was false?

25 THE WITNESS: I say yes because the whole purpose


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1 is to establish the identity of the person who went to the

2 poll. And if they used the reasonable impediment because they

3 didn't have an ID, you know, and then they produce one, then

4 we've verified who cast that ballot and the ballot should be

5 counted.

6 HON. JOHN D. BATES: So even though that voter had,

7 let's just put it bluntly, had lied about a reasonable

8 impediment and hadn't gone to the trouble of getting the photo

9 voter ID, but then had gone and done it on Wednesday, that's

10 good enough and their votes count?

11 THE WITNESS: I think so, because again, the

12 purpose is to establish that the voter who cast the ballot was

13 the person that was, you know, in the polling place.

14 HON. JOHN D. BATES: So that's in effect

15 encouraging those who show up without a photo ID to perhaps

16 lie on an affidavit so that they then have time to go and get

17 photo ID.

18 THE WITNESS: I don't want to encourage them to

19 lie, but --

20 HON. BRETT M. KAVANAUGH: Couldn't they be

21 prosecuted for that? I asked this yesterday, but if you do a

22 false statement under oath, you're at least exposed.


24 HON. JOHN D. BATES: But unlikely to be prosecuted

25 in your view.


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1 THE WITNESS: Well, it's up to the solicitors and,

2 you know, they don't often take these things. But it would

3 make an example of somebody and probably deter it.

4 HON. BRETT M. KAVANAUGH: For this election -- I

5 have a couple other questions. For this election, I thought

6 it was established yesterday that everyone will have a

7 reasonable impediment who doesn't have one of the required IDs

8 because of the short timeframe between any preclearance that

9 may or may not happen and the election day.

10 THE WITNESS: That's correct.

11 HON. BRETT M. KAVANAUGH: And then in the future,

12 one hypothetical we haven't talked about, and I'd rather talk

13 about a more realistic hypothetical, which is someone who says

14 I don't have a car or access to a car and therefore couldn't

15 get to the county election office. That's a reasonable

16 impediment.

17 THE WITNESS: In my view, yes.

18 HON. BRETT M. KAVANAUGH: Okay.

19 HON. JOHN D. BATES: To follow up on that, your

20 view is that everyone, basically everyone would have a

21 reasonable impediment under the circumstances of the November

22 2012 election.

23 THE WITNESS: Yes, because of the short timeframe.

24 HON. JOHN D. BATES: Are you going to advise voters

25 in some way that you think everyone has a reasonable


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1 impediment? Or is this just going to be left to what happens

2 to take place in the dialogue with the poll watcher and how

3 things evolve in that setting?

4 THE WITNESS: We'll encourage voters to get one of

5 the acceptable forms of ID if they don't --

6 HON. JOHN D. BATES: For instance, in the notice --

7 you're going to put some notice in each polling place, right?

8 THE WITNESS: Yes.

9 HON. JOHN D. BATES: In that notice, have you

10 contemplated saying, any voter who's unable because of the

11 short timeframe of this election to get a photo ID can simply

12 inform the poll watcher that that was an impediment to their

13 getting one of these photo IDs, and therefore will be

14 permitted to vote through the affidavit process? Are you

15 going to put up that notice?

16 THE WITNESS: We haven't considered that but, you

17 know, that would be a good way not to disenfranchise voters,

18 to inform them.

19 HON. COLLEEN KOLLAR-KOTELLY: Then in future

20 elections, can you in perpetuity say I lack transportation

21 because you do, and for all of the elections you can always

22 come up with that as the reason?

23 THE WITNESS: Well, for some people, you know, they

24 may not be able to drive or afford a car. So that is

25 something that they could use repeatedly. We wouldn't limit


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1 it just to one election.

2 HON. BRETT M. KAVANAUGH: And as long as it's not

3 false, in other words, they don't have -- as long as they

4 don't have a car or access to a car, that has to be accepted,

5 correct.

6 THE WITNESS: Yes.

7 HON. BRETT M. KAVANAUGH: Okay.

8 BY MR. BEENEY:

9 Q. Ms. Andino, to follow up a couple of the Court's

10 questions. If I'm not qualified under the law to vote on

11 Tuesday, but I get an ID on Thursday and show it to the county

12 commission on Friday, it's your view that my vote should count

13 even though I was not qualified to vote on election day?

14 A. I don't know that I would call it qualified. You

15 didn't have your ID.

16 Q. Well, that's a qualification of the law, isn't it?

17 A. Not a qualification to be a registered voter.

18 Q. No, but it's a qualification to vote. The law says I

19 can't -- the whole reason we're here is because the law says I

20 can't vote unless I've got one of these five IDs on election

21 day. Is it really your testimony that if I get it later, I

22 can still vote, even though I wasn't qualified to vote on

23 election day?

24 A. If you don't have your ID with you on election day, the

25 law provides that you can vote through the reasonable


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1 impediment. And if you provide an ID afterwards, then you've

2 proven your identity, and yes.

3 Q. But what if I get it on Wednesday, Thursday or Friday

4 and I didn't have it on Tuesday?

5 A. Yes.

6 Q. I can still vote?

7 A. Yes.

8 Q. Even though I wasn't qualified on election day?

9 A. Yes.

10 Q. And in terms of the Court's questions about everybody

11 being able to vote in November because of the preclearance

12 date, if there is any, that would mean you have to process by

13 your count, and putting aside military and passports, 180,000

14 reasonable impediment affidavits on election day?

15 A. Well --

16 HON. BRETT M. KAVANAUGH: That assumes a hundred

17 percent turnout, right?

18 MR. BEENEY: It does.

19 HON. JOHN D. BATES: It doesn't happen in this

20 country very often.

21 BY MR. BEENEY:

22 Q. Yes. Well, let's even assume 90,000. I'm more than

23 happy to adopt the Court's correction to my question, my

24 hypothetical, make it more reasonable. You'd still have to

25 process 90,000 reasonable impediment affidavits on election


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1 day?

2 A. We would have to produce, or process some number. I

3 don't know if it's even 90,000. You know, we have not taken

4 into consideration that they have another form of ID, that

5 they have received, or gotten an ID since January of 2010 when

6 that report was produced.

7 Q. But that also doesn't include all the other people who

8 have registered with a State Election Commission registration

9 card without photo ID, including, as the Court asked

10 yesterday, all these people you're going to try to register in

11 September, who you're going to give a non-photo ID

12 registration card to that they can't use to vote in November,

13 right?

14 A. Yes.

15 HON. COLLEEN KOLLAR-KOTELLY: If I could ask one

16 follow-up. So let's assume 90,000, a combination of

17 reasonable impediments and the provisional ballots, which the

18 county commissioners are reviewing, you know, with the hearing

19 Thursday or Friday. What if they can't get through all of

20 them before they have to certify the election? What happens?

21 THE WITNESS: They will stay in session and go

22 through every ballot before they meet to certify. So it could

23 be a very lengthy process, but they would stay in session

24 until they finished the provisional ballots and then certify

25 the election.


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1 HON. JOHN D. BATES: Is there a required date for

2 certification --

3 THE WITNESS: Yes.

4 HON. JOHN D. BATES: -- under state law? What is

5 that date?

6 THE WITNESS: It is, for the primary, it's the

7 Thursday following the election, and for a general or special

8 election, it's the Friday.

9 HON. JOHN D. BATES: So by that Friday they have to

10 under state law certify?

11 THE WITNESS: Correct.

12 HON. JOHN D. BATES: And you're saying they'd just

13 work around the clock between early Wednesday morning and

14 Friday at 11:59 p.m. in order to do that.


16 HON. COLLEEN KOLLAR-KOTELLY: Including any

17 challenge hearings. So let's suppose that somebody, the poll

18 watchers show up and decide to challenge a whole bunch of

19 reasonable impediments. They are going to count them, they're

20 going to review them, they are going to count them, they are

21 going to have these hearings, and have this all done after the

22 polls close on Tuesday by, what did you say, noon on Friday?

23 I thought it was Saturday.

24 THE WITNESS: It's Saturday when the State Election

25 Commission typically meets, but we actually have 10 days after


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1 the general election before we have to certify. But counties

2 meet on the Friday for a general.

3 HON. JOHN D. BATES: Wait a minute. I was taking

4 your certification date as being that Friday after the

5 election. You're saying you have 10 days?

6 THE WITNESS: The State Election Commission has 10

7 days. There is a two-step process.

8 HON. JOHN D. BATES: Oh, I see. The county has to

9 get it in to the state by that Friday.

10 THE WITNESS: Correct.

11 HON. COLLEEN KOLLAR-KOTELLY: So between that time,

12 they would have to look at whatever you reviewed at the

13 reasonable impediment in terms of looking at it, opening it

14 up, making whatever decision, and if there were challenges,

15 they would have to have all of this done in that time period?


17 HON. COLLEEN KOLLAR-KOTELLY: Just for purposes of

18 this, let's assume they just didn't have enough time, 24 hours

19 or not, because a whole bunch of people came and, you know,

20 challenged them at particular hearings. What would happen?

21 THE WITNESS: I think they would continue to meet

22 and they would get the certification to us on Saturday or

23 Sunday or whenever they finished it. It would be after the

24 date that they set to certify, but I think it's more important

25 that they continue the process and they get the certification


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1 correct so that everyone has the assurance that their vote was

2 counted.

3 HON. JOHN D. BATES: That would be preferable even

4 though it might be a violation of state legal requirements?

5 THE WITNESS: Yes.

6 HON. JOHN D. BATES: Just as several other things

7 that have been mentioned today.

8 THE WITNESS: Yes.

9 HON. BRETT M. KAVANAUGH: Just as in Florida.

10 BY MR. BEENEY:

11 Q. Ms. Andino, again just to follow up on a couple of the

12 Court's questions. The hearing to look at the provisional

13 ballots and the reasonable impediment ballots doesn't start

14 until Friday, right?


16 Q. So the time that the county commissioners have by law

17 to certify the vote and look at whatever number that we use

18 for these reasonable impediment affidavits is Friday and only

19 Friday?

20 A. It is Friday.

21 Q. Now, back to the procedure of I'm coming in to vote.

22 Assuming there is a notary, I've gone in, I've said yes, I

23 have a reasonable impediment, I've either filled out the

24 affidavit or I've gotten help doing that, I've gotten it

25 notarized. The next step is is that I bring it back to the


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1 poll manager, right?

2 A. Yes.

3 Q. Or I hand it over to the poll manager, because this is

4 all happening at the check-in table while my neighbors are

5 standing behind me, right?

6 A. I believe that it would -- it could be at the check-in

7 table. It may be a different table, and it depends on really

8 the size of the polling place. If there's room to separate

9 out the processes, they will. But some polling places are

10 limited by size. So it could potentially be, yes.

11 Q. Do you remember telling us on Friday that that is the

12 way it would happen, that all this would be done while I'm

13 checking in and everybody, all my neighbors are standing

14 behind me?

15 A. Well, I did say that, but I wanted to clarify that in

16 some polling places check-in takes place at multiple tables,

17 and it's just, you know, with 2,100 polling places, they don't

18 all have the luxury of having additional space or lots of

19 space.

20 Q. Now, I think you told us again on Friday that you

21 really have no belief one way or the other of whether this

22 process is likely to cause huge embarrassment to a voter who

23 has got to write down things like I can't afford a car or I

24 don't have a car or whatever else they might be writing. You

25 don't have a view one way or the other, is that right?


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1 A. You know, it's not a -- it's not a completely public

2 process as you implied. Your neighbors and people are going

3 to be back. I mean, they shouldn't be crowded around the

4 table listening. So I don't know if that's going to be an

5 embarrassment to people or not.

6 Q. And the poll watcher representing the candidate is

7 watching this process anyway?

8 A. Could be, yes.

9 Q. So assuming I get my affidavit and I get it notarized

10 because I've been able to prove to the notary who I am, the

11 poll manager then gives me a ballot, and I take it to the

12 voting booth to complete the ballot, correct?

13 A. Yes.

14 Q. And then putting aside for a minute the reasonable

15 impediment process, for other provisional ballots, I put it in

16 the envelope and drop it in something called the -- sorry,

17 withdrawn.

18 Putting aside reasonable impediment affidavit

19 ballots, if I'm voting by other provisional ballot, I put it

20 in an envelope that says "challenged ballot envelope," and

21 then I drop it into the ballot box, right?

22 A. I believe they go, all of them go into the same type of

23 envelope.

24 Q. But what I'm going to get at is there is a step in

25 between under the procedures that you have identified here,


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1 which is that if I'm voting by reasonable impediment

2 affidavit, I have to hand my ballot, with no security at all,

3 back to the poll manager, right?

4 A. I believe that is in our procedure, yes.

5 Q. And so the poll manager can look to see how I voted, if

6 they are so inclined. And maybe even the poll watcher can

7 look to see how I voted, if they are so inclined?

8 A. No.

9 Q. Well, if we take Exhibit 505 and assume this is my

10 ballot, I've got to hand this back to the poll manager, and

11 the poll -- withdrawn. I have to hand this back to the poll

12 manager, and the poll manager puts it into the envelope under

13 your procedures, right?

14 A. Yes.

15 Q. You certainly have received complaints from time to

16 time that poll managers act in partisan ways?

17 A. Yes.

18 Q. Now, finally, after I do all this and I hand my ballot

19 back to the poll manager, I get notice that there will be a

20 hearing on my ballot on Friday at the county seat?

21 A. Yes.

22 Q. And at the hearing -- and we're going to get to those

23 procedures in a moment -- the county board sits as the board

24 of canvassers and decides whose vote gets counted?



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1 Q. And only a court can overrule that decision; the State

2 Election Commission cannot?

3 A. Yes.

4 Q. The county boards are appointed by the Governor after

5 she receives recommendations from the county general assembly

6 delegation?

7 A. Yes.

8 Q. And boards can range in size from five to 11?

9 A. Yes.

10 Q. And the only requirement with respect to party

11 affiliation of the boards is that there must be one Democrat

12 and one Republican?


14 Q. So an 11-member county board, the Governor could

15 appoint 10 Republicans or 10 Democrats?

16 A. Yes, that's possible.

17 Q. And the decisions about whether to count a provisional

18 ballot, including one that is offered by reasonable impediment

19 affidavit, is made by a majority vote at the county board?

20 A. Yes.

21 Q. And you've tried to give the counties some guidance on

22 how to determine whether the county board has grounds to

23 believe that the reasonable impediment affidavit is false, is

24 that right?

25 A. Would you repeat that.


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1 Q. Yes, ma'am. You've tried to give the counties some

2 guidance about how to determine whether a reasonable

3 impediment affidavit is false?

4 A. Yes.

5 Q. And anybody at that hearing can offer evidence about

6 whether that affidavit is true or false?

7 A. Yes.

8 Q. Now, going to Defendant-Intervenors' Exhibit 505, there

9 is an appendix here that is the State Election Commission

10 guidance to the county board about how to determine whether an

11 affidavit is false, is that right?

12 A. Yes.

13 Q. And one of the things that you've provided guidance to

14 the county, and I believe this comes directly out of the state

15 Attorney General's opinion under section 4(a) of Exhibit 505,

16 is that the burden is on the board to prove that a false

17 statement was knowingly included in the affidavit, or was

18 included with reckless regard for the truth. Is that right?

19 A. I believe that should be the burden is on the

20 challenger.

21 Q. Okay.

22 A. And it does say "board," but I believe it should be

23 "challenger."

24 Q. Okay. But that burden is to establish that the

25 affidavit was executed with reckless regard for the truth, and


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1 then you quote up in section 3 the state Attorney General

2 opinion, which also talks about reckless regard for the truth,

3 right?

4 A. Yes.

5 Q. What is reckless regard for the truth?

6 A. It's language that was used in the Attorney General

7 opinion, and we're trying not to interpret that, so we did not

8 offer a definition of what reckless regard for the truth is.

9 Q. So you're leaving that up to each individual county

10 board?

11 A. Yes.

12 HON. JOHN D. BATES: Do you have an understanding

13 of what it is, reckless regard for the truth?


15 HON. JOHN D. BATES: What is it in your view?

16 THE WITNESS: That the person did not tell the

17 truth and --

18 BY MR. BEENEY:

19 Q. Then after all these hearings are conducted, then the

20 board decides, does voter A honestly not have transportation

21 to the county seat, and if I believe it was honest, they get

22 to vote. Voter B, who says I had no transportation to the

23 county seat, and if I'm a county election commissioner and I

24 have grounds to believe that that is false, voter B's vote

25 isn't counted?


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1 A. Yes.

2 Q. And the only way that decision can be overturned if I'm

3 a voter is to sue the county board in court?

4 A. Yes.

5 Q. Now, the county board will be making that determination

6 knowing the identity of the voter? Before they decide whether

7 to count the vote, they will know the name of the voter,

8 right?

9 A. Yes.

10 Q. And if I know the person or I happen to believe that

11 the voter is an African American, given the fact that voting

12 in South Carolina is racially polarized, I have a pretty good

13 idea how that person voted, don't I?

14 A. Yes.

15 Q. Before I decide whether to count the vote?

16 A. Yes.

17 Q. So after all this, Ms. Andino, can we agree that R54

18 gives the county boards at least some discretion over whether

19 to allow someone to exercise their franchise?

20 A. Yes.

21 Q. And unless I get myself to the county seat on Friday

22 for the hearing, I don't know until after the vote is

23 certified whether my vote was ever counted?


25 Q. And the only way I'll ever know is if I call the State


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1 Election Commission or happen to have access to the Internet

2 and go online?

3 A. Yes, or call the county.

4 Q. Don't you think that also destroys confidence in the

5 system?

6 A. Well, that's what's provided for in the law.

7 Q. Well, as one Senator once said to another, I'll take

8 that as a no.

9 HON. JOHN D. BATES: But your testimony won't be

10 counted.

11 (Laughter)

12 MR. BEENEY: Judge Bates, this is

13 cross-examination. I thought it was always testimony.

14 BY MR. BEENEY:

15 Q. Now, Ms. Andino, I want to go through just some

16 reactions that the county has had to some of the guidance that

17 you've given them. And we've already I think established that

18 the director in Beaufort County, Scott Marshall, told you the

19 procedures, or at least part of them are ridiculous, right?

20 A. Yes.

21 Q. And he told you that the counties can't prohibit a

22 notary from charging to notarize an affidavit, right?

23 A. I don't recall that part.

24 Q. Let's take a look at Defendant-Intervenors' Exhibit

25 512. Do you recognize this as excerpts from the State


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1 Election Commission ElectionNet?

2 A. Yes.

3 Q. And if we go to the third page, this is sent to you by

4 Scott Marshall, who's the director in Beaufort County, is that

5 right?

6 A. Yes. Beaufort.

7 Q. Beaufort. I'm sorry. Proves again I don't vote in

8 South Carolina. Do you see he says here, "Conversely, we

9 cannot prohibit them from charging a fee"?

10 A. I disagree.

11 Q. But you at least now recall that that's what he told

12 you?

13 A. Yes.

14 Q. And when you've got disagreement with the county

15 officials, there's nothing you can do about it if they

16 continue to want to disagree with you?

17 A. No.

18 Q. So if the director in Beaufort County maintains his

19 position that they can't prohibit the notary at the polls from

20 charging a fee, we have a poll tax if someone wants to vote by

21 reasonable impediment affidavit?

22 A. Although Mr. Marshall's comments don't always seem

23 reasonable, he tends to be, and we can get an Attorney

24 General's opinion, and we'll also work with the Secretary of

25 State's office on notaries to make sure that there's a smooth


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1 process in place.

2 Q. It wasn't only -- I'm sorry -- Beaufort County that

3 told you this amounts to a poll tax, but it was also the

4 officials in Kershaw County that told you it amounts to a poll

5 tax, right?

6 A. Yes.

7 Q. And it was the Kershaw County official who said that

8 the R54 law was, quote, making our state out to be the fool in

9 the national press, quote, right?

10 A. Yes, I believe so. Mr. Fitzpatrick is a staff member

11 in Kershaw County. And like I said earlier, sometimes they

12 use ElectionNet to vent.

13 Q. And speaking of venting, the director in Spartanburg

14 told you that once again the state, quote, has crafted

15 legislation which requires a citizen to incur an express to

16 participate in an event. Do you recall that?

17 A. Yes.

18 Q. And the Kershaw County official also told you that R54

19 will result in, quote, a plethora of coming lawsuits?

20 A. Yes.

21 Q. And that the reasonable impediment provision was

22 intentionally vague to give the legislature an, quote, out,

23 quote, for preclearance?

24 A. Yes.

25 Q. And the director in Jasper County told you that -- she,


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1 I think?

2 A. She.

3 Q. She doesn't have enough poll manager notaries to cover

4 her precinct, and she ended that comment with a "wow," W-O-W,

5 exclamation point. Do you remember that?

6 A. Yes.

7 Q. And the director of Lancaster County told you, quote, I

8 hope the poll workers will not have to decide what a

9 reasonable impediment is and what it's not. Do you remember

10 that?

11 A. Yes.

12 Q. That person said, this is not a good way to handle

13 voter ID. Do you remember that?

14 A. Yes.

15 Q. And finally, the director of Union County asked you,

16 how do you notarize an affidavit stating that they don't have

17 an ID? The purpose of the notary is to verify the

18 identification of the person filing the document. Do you

19 remember that?

20 A. Yes.

21 Q. Ms. Andino, you are required under R54 to notify by

22 mail voters you identify who don't have a DMV ID, correct?

23 A. Yes.

24 Q. And the process is is that you're going to have to get

25 a list from DMV of people who have DMV IDs?


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2 Q. And after preclearance, that process you think will

3 take about two weeks?

4 A. Yes.

5 Q. Once you get that list, after the two weeks, you have a

6 mailing that you intend to send out to the voters?


8 Q. Would you identify for me that the exhibit we're going

9 to put up now, which is Defendant-Intervenors' Exhibit 506, is

10 the postcard that you're going to use to send to voters.

11 HON. COLLEEN KOLLAR-KOTELLY: While that is coming

12 up, if I can ask, the list that you're going to do, which

13 would be DMV driver's licenses and DMV identification, is that

14 going to include people that have only current, so they

15 wouldn't include anybody who's expired? Would it include

16 people that have suspended or revoked, or do you know?

17 THE WITNESS: In the past they had provided only

18 the current. So anyone that was suspended or revoked, they

19 were not included.

20 HON. COLLEEN KOLLAR-KOTELLY: So the list that you

21 gave also to the General Assembly some time ago when you

22 compared those that had the IDs to those, the voters, the

23 178,000 we've been talking about, then the DMV list would only

24 have been current and non-expired, non-revoked driver's

25 licenses?


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1 THE WITNESS: Yes. And what they've, what DMV has

2 told us is that when somebody's license is revoked they offer

3 the identification card to them.


5 BY MR. BEENEY:

6 Q. Ms. Andino, would you identify for us

7 Defendant-Intervenor Exhibit 506 as the information that

8 you're going to provide to voters that you identify as not

9 possessing a DMV-issued photo ID that is acceptable for voting

10 under R54?

11 A. This is the current version of that postcard.

12 Q. And the current version of the postcard does not say

13 anything about the ID to be used to vote having to be current

14 and valid, does it?

15 A. It does not.

16 Q. And I think you told us on Friday that it would be

17 reasonable for a voter to believe that they could vote with an

18 expired driver's license. Do you recall that?

19 A. Yes.

20 Q. Now, you told the voter in this section here on

21 Defendant-Intervenors' Exhibit 506, under the portion of the

22 card that says "New South Carolina photo identification

23 requirements," that if you can -- if you need to complete an

24 affidavit at the polls because you don't have one of the five

25 required IDs, you should bring your current voter registration


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1 card with you to the polling place, right?

2 A. Yes.

3 Q. And that is based on your hope that the notary will

4 accept a form of identification to prove who the voter is

5 which you can't accept to prove who the voter is for voting?

6 A. Yes.

7 Q. But you don't tell the voter in the card to bring any

8 other form of photo ID to prove who they are to the notary?

9 A. We do not.

10 Q. Ms. Andino, I think just one final question. As you

11 sit here today, and I want to ask you not about R54, but I

12 want to ask you about existing voting requirements in the

13 state of South Carolina. And with all of your experience with

14 the State Election Commission, do you believe that the

15 non-photo registration card that everyone can use to vote

16 today that's eliminated by R54 is sufficient to identify a

17 person as to who they are for voting purposes?

18 A. Under current law it is.

19 Q. And do you believe that it is sufficient to identify

20 who the person is for voting purposes?

21 MR. BOWERS: Objection on relevance grounds. I

22 don't think this is relevant in terms of a Section 5

23 determination.

24 HON. COLLEEN KOLLAR-KOTELLY: I'll allow it.

25 Overruled. Go ahead.


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1 THE WITNESS: Could you repeat your question.

2 BY MR. BEENEY:

3 Q. Sure. And maybe I'll say it in a way that's a little

4 bit quicker. Friday you told us that you thought that the

5 non-photo registration card would be sufficient to identify

6 who a person is. Do you still believe that today?

7 A. Yes.

8 MR. BEENEY: Thank you, Your Honors. Thank you,

9 Ms. Andino.

10 HON. COLLEEN KOLLAR-KOTELLY: All right.

11 HON. JOHN D. BATES: Let me just make sure I have

12 the timing of this postcard correct. You haven't printed

13 these postcards yet.

14 THE WITNESS: No. They won't be printed until we

15 have the list.

16 HON. JOHN D. BATES: And you won't -- will you get

17 the list before there's any preclearance by this court,

18 assuming this court preclears R54?

19 THE WITNESS: No. Upon preclearance I will

20 personally call the director of DMV and request the list.

21 HON. JOHN D. BATES: You'll get the list, and

22 you'll make any changes that you think are appropriate to this

23 postcard, and then you'll have the postcards printed. And you

24 said that whole process will take how long?

25 THE WITNESS: The comparison, our experience in


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1 doing the comparison and reviewing and making sure that we're

2 using the right variables and -- usually takes between a week

3 or two. And I believe that this card can be edited right up

4 to the minute it prints. It's not that we have a preprinted

5 card, it's laid down by the printer as it's addressed to each

6 voter.

7 HON. JOHN D. BATES: So how long after preclearance

8 will you actually have the cards in hand and the addresses of

9 the people so you can put those on the cards ready to put in

10 the mail?

11 THE WITNESS: A conservative estimate would be two

12 weeks.

13 HON. JOHN D. BATES: Do you think that's a

14 reasonable estimate, or is "conservative" meant to indicate

15 something other than reasonable and likely?

16 THE WITNESS: No, I believe that we can do it a

17 little quicker than that, but I'm trying to build in a little

18 extra time.

19 HON. JOHN D. BATES: So two weeks.


21 HON. JOHN D. BATES: And then they would have to be

22 mailed out.


24 HON. JOHN D. BATES: So if there were preclearance,

25 again to use the September 15 date that has occasionally been


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1 used in the conversation over the last three days -- to use

2 that date, it would be the beginning of October before they

3 were mailed, right around the beginning of October. And then

4 before they were received, it would be the end of the first

5 week, maybe into the second week of October. Is that a fair

6 guesstimate?

7 THE WITNESS: I hope they will receive them faster

8 than that after they're mailed, but yes.

9 HON. JOHN D. BATES: But it's about 30 days before

10 election day.

11 THE WITNESS: It is.

12 HON. JOHN D. BATES: So that's the period of time

13 that the voters, particularly the voters who are most likely

14 not to have the requisite IDs, would receive this notification

15 and then be able to do anything about it, 30 days.


17 BY MR. BEENEY:

18 Q. Ms. Andino, just to follow up. There's one little

19 point in there that I think you've got to build in to the

20 timeline that you may not have done in the questions, which is

21 you also have to wait for the DMV to generate its list before

22 you do anything, because you need that list to do your

23 comparison, right?

24 A. I have factored that in, and we've been working with

25 DMV and they have been very cooperative, and I believe that if


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1 I call their director, that within a day or so I will have

2 that list. It will be a priority for them.

3 Q. Is that new? Because I think you told us it would take

4 about a week to get the information from DMV.

5 A. It has taken a week in the past, but we have been

6 working very closely with them on other issues, and I believe

7 they understand the importance and that they will provide the

8 list as quickly as they can.

9 Q. But at least history's guide is that it takes about a

10 week to get the list, and then you need about two weeks to

11 generate your list?

12 A. Yes, and that's when we were requesting a list for the

13 purpose of jury rolls.

14 MR. BEENEY: Thank you, Ms. Andino. Thank you,

15 Your Honors.

16 HON. COLLEEN KOLLAR-KOTELLY: All right. South

17 Carolina.

18 MR. BOWERS: Just a few questions, Your Honor.

19 Again, Butch Bowers here for the state of South Carolina.

20 EXAMINATION

21 BY MR. BOWERS:

22 Q. Ms. Andino, Mr. Beeney spent a little bit of time

23 asking you about ElectionNet here just a few moments ago. Do

24 you recall that?

25 A. Yes.


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1 Q. Tell the Court again, please, how many people have

2 access to ElectionNet approximately?

3 A. Approximately 400. All county election commission,

4 voter registration and election commission staff, as well as

5 commissioners, as well as State Election Commission staff have

6 access to the intranet site.

7 Q. And all of the comments that Mr. Beeney was asking you

8 about, were those just unsolicited or had you posted something

9 about R54?

10 A. I had posted an update to the status of R54 and had

11 notified the counties that notaries would be required at the

12 polling place, suggested that when they are recruiting poll

13 managers, they ask if they're notaries. And also provided

14 them with a list of poll managers that we have identified as

15 also being notaries.

16 Q. So these weren't just out of the blue comments; you had

17 posted something?

18 A. That's right.

19 Q. And when did you post that, do you recall?

20 A. I don't recall the date. It's been probably two to

21 three weeks ago.

22 Q. And then how many people do you recall, approximately

23 how many responded?

24 A. Maybe 20, 25. I'm not sure.

25 Q. Mr. Beeney also asked you about the director in


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1 Beaufort County, Mr. Scott Marshall. Do you recall that

2 testimony?

3 A. Yes.

4 Q. Has Mr. Marshall ever disagreed with you on the law of

5 South Carolina regarding elections?

6 A. Yes.

7 Q. In fact he sued you, didn't he?

8 A. Yes, he did.

9 Q. Tell the Court about that, please.

10 A. Last year, late last year after the General Assembly

11 passed the appropriations act, which required us, or allowed

12 us to use carry-forward funds for primaries, to conduct the

13 presidential preference primaries in January, Mr. Marshall did

14 not feel that we had the authority to order counties to

15 con

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