DRAFT REPORT 

Voting Irregularities in Florida During the 2000 Presidential Election

(Approved by the Commissioners on June 8, 2001)


Executive Summary


Addressing voting rights issues has been a core responsibility for the U.S. Commission on Civil Rights since the Commission was founded in 1957. The Commission has broad authority over voting rights. It has general jurisdiction to examine allegations regarding the right of U.S. citizens to vote and to have their votes counted. These allegations may include, but are not limited to, allegations that arise from reasons of race, color, religion, sex, age, disability, or national origin.

Pursuant to its authority, and fulfilling its obligations, the Commission voted unanimously in the aftermath of the November 2000 presidential election to conduct an extensive public investigation into allegations of voting irregularities during the 2000 presidential election in Florida. Toward that end, the Commission held three days of hearings in Miami and Tallahassee and, using its subpoena powers, collected more than 30 hours of testimony from more than 100 witnesses—all taken under oath—and reviewed more than 118,000 pages of pertinent documents.

The Commission carefully selected its subpoenaed witnesses to ensure that it received testimony on the wide range of issues that had come to light during the Commission’s preliminary investigation. The Commission also acted to ensure that it heard a broad spectrum of views. It subpoenaed a cross section of witnesses, including Florida Governor Jeb Bush, Florida Secretary of State Katherine Harris, members of Governor Bush’s Select Task Force on Election Reforms, and Florida’s attorney general. The Commission staff’s research also led it to subpoena the state official responsible for implementing motor voter registration, the general counsel for Florida’s Elections Commission, the director of the Division of Elections (part of the Secretary of State’s Office), the director of Florida’s Highway Patrol, and numerous local elections officials, county supervisors, poll workers, and local sheriffs. Additionally, the Commission subpoenaed a number of witnesses who had problems or who had first-hand knowledge of problems during the election, especially those on Election Day.

The Commission attempted to ensure that it heard all points of views in a second way. At each of the hearings, it invited the general public to testify once the formal sessions had concluded. There were no time limits on how long these sessions lasted, and they ended only when all witnesses had made their statements and each of the Commissioners present had ample opportunity to ask any and all questions of the witnesses. Both the witnesses’ statements and their answers to Commissioners’ questions were under oath.

During the three days of hearings, numerous witnesses delivered heartrending accounts of the frustrations they experienced at the polls. Potential voters confronted inexperienced poll workers, antiquated machinery, inaccessible polling locations, and other barriers to being able to exercise their right to vote. The Commission’s findings make one thing clear: widespread voter disenfranchisement—not the dead-heat contest—was the extraordinary feature in the Florida election.

After carefully and fully examining all the evidence before it, the Commission found a strong basis for concluding that violations of Section 2 of the Voting Rights Act of 1965 (VRA) occurred in Florida. The VRA was enacted to enforce the 15th Amendment’s proscription against voting discrimination. It is aimed at both subtle and overt state action that has the effect of denying a citizen the right to vote because of his or her race. Although the VRA at first focused on enfranchising African Americans, the law has been amended several times to also include American Indians, Asian Americans, Alaskan Natives, and people of Spanish heritage. Additionally, the VRA includes a provision that recognizes the need for multilingual assistance for non-English speakers.

The VRA does not require intent to discriminate. Neither does it require proof of a conspiracy. Violations of the VRA can be established by evidence that the actions of responsible officials and other evidence constitute a “totality of circumstances” that denied the right to vote. For example, if there are differences in voting procedures and voting technologies and the result of those differences is to advantage white voters and disadvantage minority voters, then the laws, the procedures, and the decisions that produced those results, viewed in the context of social and historical factors, can be discriminatory, and a violation of the VRA.

Disenfranchised Voters

Disenfranchised voters are individuals who are entitled to vote, want to vote, or attempt to vote, but who are deprived from voting or having their votes counted. The most dramatic undercount in the Florida election was the uncast ballots of countless eligible voters who were wrongfully turned away from the polls. Statistical data, reinforced by credible, anecdotal evidence, point to the widespread denial of voting rights. It is impossible to determine the extent of the disenfranchisement or to provide an adequate remedy to the persons whose voices were silenced by injustice, ineptitude, and inefficiency. However, careful analysis and some reasonable projections provide an understanding of what happened in Florida.

The disenfranchisement of Florida’s voters fell most harshly on the shoulders of black voters. The magnitude of the impact can be seen from any of several perspectives:

Poor counties, particularly those with large minority populations, were more likely to possess voting systems with higher spoilage rates than the more affluent counties with significant white populations. There is a high correlation between counties and precincts with a high percentage of African American voters and the percentage of spoiled ballots, that is, ballots cast but not counted.                     

The magnitude of the disenfranchisement, including the disparity between black and non-black voters, is supported by the testimony of witnesses during the hearings. These witnesses include local election officials, poll workers, ordinary voters, and activists. Among the sworn testimony:        

The Commission calls upon the attorney general of the United States to immediately begin the litigation process to determine liability under the VRA and appropriate remedies. The Commission is a fact-finding body, authorized to investigate allegations of voting discrimination, fraud, and other irregularities. However, it does not adjudicate violations of the law, hold trials, or determine civil or criminal liability. It is within the jurisdiction of the U.S. Department of Justice and Florida law enforcement officials to seek appropriate sanctions and remedies. In addition to calling on the attorney general to initiate the litigation process on this issue, the Commission requests this action on a number of other issues as well, such as Florida’s handling of its voter roll purge and its failure to accommodate voters with disabilities and limited English proficiency.

The Commission also recommends that Florida retain knowledgeable experts to undertake a formal study to ascertain the reason for the racial disparities in vote rejection rates between white voters and persons of color. Once this is completed, the state should adopt and publicize procedures to eliminate this disparity. As a start, the state could identify and promote the “best practices” of counties in Florida or around the nation that performed well during the 2000 presidential election.

Missing Leadership

The report does not find that the highest officials of the state conspired to disenfranchise voters. Moreover, even if it was foreseeable that certain actions by officials led to voter disenfranchisement, this alone does not mean that intentional discrimination occurred. Instead, the report concludes that officials ignored the mounting evidence of rising voter registration rates in communities. The state’s highest officials responsible for ensuring efficiency, uniformity, and fairness in the election failed in fulfilling their responsibilities and were unwilling to take responsibility.

The governor insisted that he had no specific role in election operations and pointed to his secretary of state as the responsible official. After the election, however, the governor exercised leadership and responsibility in electoral matters in the commendable action of appointing a task force to seek recommendations for fixing the problems that occurred. The secretary of state, the state’s chief elections officer, denied any responsibility for the problems in the election, claiming only a “ministerial” role, her clear statutory obligations notwithstanding. Rather, she asserted that county election officials are responsible for the conduct of the election, while describing her role in the policies and decisions affecting the actual voting operations as limited. However, her claims of no responsibility sharply contrast to her actions in the immediate aftermath of Election Day, when she asserted ultimate authority in determining the outcome of the vote count. In addition, on the local level, supervisors of elections in the counties that experienced the worst problems failed to prepare adequately and demand necessary resources.

This overall lack of leadership in protecting voting rights was largely responsible for the broad array of problems in Florida during the 2000 election. Furthermore, state officials ignored the pleas of some supervisors of elections for guidance and help. Especially at the highest levels, officials must take responsibility for leading on matters for which they have authority and, to the extent they do not have sole authority, to take the initiative for working with other key officials. Specific examples of the areas in which Florida officials need to improve are discussed in other parts of the Executive Summary and throughout the report. However, the need for key officials to exercise leadership in protecting the right to vote is imperative. This was not a responsibility that officials were willing to accept during the 2000 election.

Purging Former Felons from the Voter Rolls

Individuals not legally entitled to vote should not be allowed to vote. Appropriate efforts to eliminate fraudulent voting strengthen the rights of legitimate voters. Indeed, there are already laws in place in Florida that make it a crime to vote unlawfully. However, poorly designed efforts to eliminate fraud, as well as sloppy and irresponsible implementation of those efforts, disenfranchise legitimate voters and can be a violation of the VRA. During the November 2000 election, Florida’s overzealous efforts conducted under the guise of an anti-fraud campaign resulted in the inexcusable and patently unjust removal of disproportionate numbers of African American voters from Florida’s voter registration rolls.

The purge system in Florida proceeded on the premise of guilty until proven innocent. In 1998, the Florida legislature enacted a statute that required the Division of Elections to contract with a private entity to purge its voter file of any deceased persons, duplicate registrants, individuals declared mentally incompetent, and convicted felons without civil rights restoration, i.e., remove ineligible voter registrants from voter registration rolls. This purge process became known as list maintenance. The process places the burden on the eligible voter to justify remaining on the rolls. The ubiquitous errors and dearth of effective controls in the state’s list maintenance system resulted in the exclusion of voters instead of the expansion of voter participation.

African American voters were placed on purge lists more often and more erroneously than Hispanic or white voters. For instance, in Miami-Dade, the state’s largest county, more than 65 percent of the names on the purge list consisted of African Americans, who represented only 20.4 percent of the population. Hispanics were 57.4 percent of the population, but only 16.6 percent of the purge list; whites were 77.6 percent of the population but 17.6 percent of those purged.

Florida easily could have, and should have, done much more to protect the legitimate voting rights of African Americans and other Floridians. What should have been done include the following:

The purposeful use of erroneous listings to promote the state’s purging priorities and the permanent disenfranchisement of discharged felons raise important questions of fundamental fairness. The Commission also calls into question Florida’s onerous and infrequently rendered clemency process. Former offenders who have paid their debt to society should have citizenship rights restored. The state’s aggressive purging laws, policies, and practices disproportionately affect African Americans, who are disproportionately charged, convicted, and sentenced in the criminal justice system. The report expresses disappointment that the recently enacted legislation failed to address the issue of purging former felons from the voter roles and asks that the governor recommend reform in this area of state law.

Accessibility

Florida failed to provide adequate access to individuals with disabilities and to people who have limited English proficiency. Specific concerns pertaining to those with disabilities include:

Individuals who were not proficient in English faced comparable barriers, despite the requirements for language assistance to non-English-proficient voters. Thus, a large number of limited-English-speaking voters were denied assistance at polling places, greatly increasing the likelihood of disenfranchisement. In some central Florida counties, Spanish-speaking voters received no bilingual assistance. Some of these counties are required to provide language assistance under the VRA. The failure to provide language assistance resulted in widespread voter disenfranchisement of an estimated several thousand Spanish-speaking voters in central Florida.

Voter Education, Voter Registration, Training Poll Workers, and Election Day Problems

As a result of these shortcomings, some potential voters never got to cast ballots. For example:

Conclusion

The Commission found that the problems Florida had during the 2000 presidential election were serious, and not isolated. In many cases, they could have been predicted, and thus prevented. The failure to do so resulted in an extraordinarily high level of disenfranchisement, with a significantly disproportionate impact on African American voters. The causes include the following: (1) a general failure of leadership from those with responsibility for ensuring elections are properly planned and executed; (2) inadequate resources for voter education, training of poll workers, and for Election Day trouble-shooting and problem solving; (3) inferior voting equipment and/or ballot design; (4) failing to anticipate and account for the likely high volumes of voters, including inexperienced voters; (5) a poorly designed and even more poorly executed purge system; and (6) a resource allocation system that often left poorer counties, which often also were counties with the highest percentage of black voters, adversely affected.

Since the Commission began its hearings, Florida has enacted legislation to address many of the problems that arose during the last election cycle. The Commission publicly applauded this development as soon as it occurred, and even before the details of the legislative package had been finalized. The Commission reiterates that Florida and its leaders deserve credit for the new election law.

However, the same leadership that effectively ensured passage of the recent legislation was missing in the years and months leading up to the November 2000 election. If the same level of leadership had been present, the Commission’s investigation indicates that most of the problems during the past election could have been prevented, and the dire consequences documented in this report could have been avoided.

Unfortunately, the recent legislation fails to address several other important issues, including accessibility for persons with disabilities, language assistance, and other barriers to voter participation. Additionally, the new law permits provisional balloting only under limited circumstances. While a positive step, it is too restrictive to adequately address possible errors that might require its usage. The provision should be amended to ensure additional voters are not disenfranchised.

Moving forward, the Commission urges that the same leaders who worked to enact the recent election reforms work even more diligently to ensure they are implemented effectively. Moreover, the Commission encourages Florida’s leaders to expeditiously take up the issues they did not address in the last legislative package, such as making rules on purging of former felons less punitive and more in line with the mainstream of other states.