Voting Irregularities in Florida During the 2000 Presidential Election


Chapter 1

Voting System Controls and Failures


No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live.[1]

To ensure that every eligible citizen in Florida has an opportunity to exercise his or her right to vote, the state established a system of checks and balances that extends from the governor to the local poll worker. This system of control is codified in many of the provisions of the election laws of the state of Florida and, in part, is intended to help guarantee the rights granted to voters by the Voting Rights Act of 1965 will be protected. During the November 2000 election, a wide range of errors, including the insufficient provision of adequate resources, caused a significant breakdown in the state's plan, which resulted in a variety of problems that permeated the election process in Florida. Large numbers of Florida voters experienced frustration and anger on Election Day as they endured excessive delays, misinformation, and confusion, which resulted in the denial of their right to vote or to have their vote counted. While some maintain that what occurred in Florida was nothing out of the ordinary, but rather was simply amplified by the closeness of the election, the overwhelming evidence provided to the Commission proves otherwise.

It is impossible to determine the total number of voters turned away from the polls or deprived of their right to vote. It is clear that the 2000 presidential election generated a large number of complaints about voting irregularities in Florida. The Florida attorney general's office alone received more than 3,600 allegations 2,600 complaints and 1,000 letters.[2] In addition, both the Democratic and Republican parties received many complaints from Floridians who either could not vote or experienced difficulty when attempting to vote.[3] These widespread complaints prompted Florida's governor to sign an executive order creating the Select Task Force on Election Procedures, Standards and Technology.[4] The task force was formed to examine the concerns that had been raised about Florida's election process and to recommend reforms where necessary.[5]

Several advocacy group representatives testified about the disproportionate number of complaints they received from their constituents in Florida. Jackson Chin, associate counsel at the Puerto Rican Legal Defense and Education Fund in New York City, explained that his group's preliminary investigation revealed that certain election practices in central Florida might have led to the widespread voter disenfranchisement of up to several thousand Latino voters.[6] D.P. Misra, former president of the Association of Indians in America, and Venghan Winnie Tang, president of the South Florida chapter of the Organization of Chinese Americans, both testified that immigration and language assistance problems prevented many East Indians and Asians from being able to vote in Florida.[7]

Other advocacy groups formed coalitions to investigate or to take action against the election problems that surfaced in Florida. For example, the NAACP filed a federal class-action lawsuit on behalf of voters in Florida who allege their right to vote in the election was unlawfully denied or abridged.[8] The Florida Justice Institute joined with the ACLU of Florida and Florida Legal Services to develop statewide electoral reform that focuses on the concerns of Florida's racial and language minorities and those who live in poverty, considerations that are probably long overdue in this state. [9] According to JoNel Newman of the Florida Justice Institute, [w]hen new or vulnerable voters from traditionally disenfranchised groups are wrongly prevented from going to the polls and from voting, they feel often a humiliation and a stigma or a disaffection that has the effect in many cases of causing them never to return to the voting booth. [10]

The complaints from those denied the right to vote during the 2000 Florida presidential election were anything but isolated or episodic. Credible evidence shows many Floridians were denied the right to vote. Analysis of the testimony and evidence gathered by the Commission show that these denials fell most squarely on persons of color. To place this discussion in a legal context it is important to briefly discuss some of the nondiscrimination provisions of the Voting Rights Act of 1965.

THE VOTING RIGHTS ACT OF 1965

The United States has an ugly history of voter exclusion and disenfranchisement. The original attempt to enfranchise African Americans occurred after the Civil War. Prior to the Civil War, voting was usually limited to white male property owners over the age of 21. After the war, the First Reconstruction Act of 1867 mandated that to re-enter the Union, Confederate states had to adopt new constitutions guaranteeing male suffrage without regard to race. Subsequently, Congress adopted the 15th Amendment in 1870, which guaranteed, in theory, the equal right to vote regardless of race, color, or previous condition of servitude.

Despite what appeared to be a clear prohibition on race discrimination in voting, most states had adopted barriers, including poll taxes and literacy tests, which while appearing neutral on their face prevented many African Americans from voting. Notwithstanding the 15th Amendment, countless barriers kept voting a white male privilege and left people of color without a meaningful franchise consonant with the intent of the amendment.[11]

The passage of the Voting Rights Act of 1965[12] (VRA) was Congress reaction to the abhorrent racial discrimination in voting rights in the United States and an attempt to finally enfranchise the majority of African American citizens. The VRA was a response to the growing civil rights movement that occurred almost 100 years after the passage of the 15th Amendment. Congress enacted the VRA to bar discriminatory voting laws in any form on the basis of race or color. The original VRA was aimed at eliminating persistent discrimination in voting, and the intent was to abolish the use of voter exclusionary procedures or processes, such as literacy tests, poll taxes, grandfather clauses,[13] durational residency requirements, registration harassment, and other intimidation tactics.[14] The VRA also intended to prevent the introduction of new devices or processes that might dilute the voting rights of African American citizens.[15]

The VRA was enacted under Congress authority to enforce the 15th Amendment s proscription against voting discrimination. Although voting rights legislation was first enacted in 1870 to enhance the effectiveness of the 15th Amendment, voting rights continued to be a legal fiction for people of color particularly African Americans until the passage of the VRA, which was signed into law on August 6, 1965.[16]

The VRA prohibited, among other things, the use of literacy tests and other discriminatory tests and devices in states where less than 50 percent of the voting-age population was registered to vote or had voted in the November 1964 elections. These tests and devices had, for generations, effectively disenfranchised African Americans in the South. In 1965, people of color still met many obvious barriers that prevented them from exercising their right to the franchise, such as poll taxes, literacy tests, and intimidation tactics.

Congress passed the VRA in hopes of effectively combating the discriminatory voting practices that were used against nonwhites.[17] Initially, the VRA focused on voter registration.[18] The act was aimed at subtle, as well as obvious, state action that had the effect of denying citizens their right to vote because of their race.

Section 2 of the Voting Rights Act

Section 2 of the Voting Rights Act is a codification of the intent of the 15th Amendment and forbids racial discrimination with respect to voting rights. It provides:

No voting qualifications or prerequisites to voting, or standard, practice, or procedure, shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.[19]

Since its enactment in 1965, the VRA has been instrumental in providing people of color with access to the political process and in overcoming more than a century of racially discriminatory election laws and policies. Specifically, section 2 outlaws practices that deny people of color electoral participation by diluting the effectiveness of their votes.[20]

Until 1980, a party alleging a section 2 violation could establish a claim by demonstrating, based on the totality of the circumstances, that the challenged electoral procedure had the result of denying a minority group equal opportunity to participate in the political process and to elect their preferred candidates.[21] There was no requirement that disenfranchised voters prove a specific intent to deny them the right to vote because of their race.

In 1980, the Supreme Court held in Mobile v. Bolden[22] that a plaintiff must show discriminatory intent to prove a section 2 violation of vote dilution based on constitutional claims.[23] Congress immediately responded to this decision by amending section 2 in 1982.[24] The amendment provides in pertinent part:

A violation . . . of this section is established if, based on the totality of the circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.[25]

Congress intended the amendment to clarify the standard of proof in establishing violations of the Voting Rights Act. [26] While debating the amendment, Congressman Don Edwards of California argued that in Bolden the Supreme Court

was interpreting an act of Congress and interpreted [it] in a way that [Congress] did not intend in 1965. It said that there must be direct proof of a discriminatory intention to establish a violation of section 2. . . . Now, the problem with this ruling, contrary to what Congress intended, is that it is an impossible burden to prove intent to discriminate, even where the system clearly discriminates.[27]

Congressman John Conyers of Michigan said if the intent requirement was not eliminated, the most important sentence in the Voting Rights Act would be made a nullity. [28] Said Congressman Conyers:

Here is the one sentence that requires that we look at the effect, the result, or the purpose, and not the intent. . . . We do not need specific criminal intent on the part of any local or State officials to determine that a violation has occurred.[29]

The 1982 amendments do not preclude plaintiffs from introducing evidence of discriminatory intent, but rather properly afford plaintiffs the option of demonstrating that the challenged electoral procedure has the effect of denying a protected class equal access to the political process and electing representatives of their choice.

In its amendment of section 2, Congress reaffirmed that discrimination could be established using a results test and that under this test there was no requirement to prove discriminatory intent. Congress described factors to be considered in determining whether, under the results test, discrimination has occurred.[30] The results test, also known as the totality of the circumstances test, only requires the plaintiff to prove that a challenged election process results in a denial or an abridgment of the right to vote.[31] This amendment restored previous Supreme Court precedent, allowing violations of section 2 to be established by demonstrating abridgement of voting rights by totality of the circumstances or intentional discrimination.

Under the VRA, as amended, a violation of section 2 may be established by either showing intentional discrimination or that the totality of the circumstances results in a section 2 violation. Evidence of discriminatory intent is not limited to direct evidence; intent may be demonstrated by the impact of the challenged action on minorities, the ability to foresee that impact, the historical background of the challenged action, the sequence of events leading up to the challenged action, and the legislative history.[32] The essence of a 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by African American and white voters to elect their preferred representatives. [33] A person attempting to prove a violation of the VRA must either prove [discriminatory] intent or alternatively, must show that the challenged system or practice, in the context of all the circumstances in the jurisdiction in question, results in minorities being denied equal access to the political process. [34]

Under the totality of the circumstances standard, success does not depend on an algorithm; rather, a violation may be established by the court's weighing of the factors outlined by Congress. There is no requirement that any particular number of factors be proved, or that a majority of them point one way or the other. [35]

Accordingly, as the evidence presented to the Commission is discussed, the proper analysis is not to look at individual facts or witnesses and attempt to draw conclusions from these isolated facts but rather, as the law requires, these facts must be analyzed to determine whether there was intentional discrimination or whether under the totality of the circumstances the state's actions resulted in racial minorities being denied the right to vote.

The Commission heard from several experts regarding potential violations of the VRA during the Florida presidential election, including Professors Allan Lichtman and Darryl Paulson.

Professor Lichtman, applying the results test, said, The key is whether a system, regardless of why it was adopted or why it was held in place, has the effect of diminishing minority voting opportunities. [36] Professor Lichtman explained:

We do not have to demonstrate an intent to discriminate. We do not have to demonstrate that there was some kind of conspiracy against minorities or that anyone involved in the administration of elections today or yesterday had any intent whatever to discriminate against minorities, because indeed under the Voting Rights Act, practices can be illegal so long as they have the effect of diminishing minority opportunities to participate fully in the political process and elect candidates of their choice.[37]

Professor Lichtman testified that a violation occurs if the following two criteria are satisfied:

Referring to a New York Times study showing that voting systems in Florida's poorer, predominantly minority areas are less likely to allow a voter to cast a properly tallied ballot, Professor Lichtman testified:

In other words, minorities perhaps can go to the polls unimpeded, but their votes are less likely to count because of the disparate technology than are the votes of whites. . . . That is the very thing the Voting Rights Act was trying to avoid that for whatever reason and whatever the intent, the Voting Rights Act is trying to avoid different treatment of whites and minorities when it comes to having one's vote counted. . . . If your vote isn't being tallied, that in effect is like having your franchise denied fundamentally.[39]

Professor Lichtman testified that one remedy in such a case would be to equalize the technology across all voting places in the state of Florida to have technologies equalized such that there are no systematic correlations between technologies and whites and minorities, and a minority vote is as likely to be tallied as a white vote. [40] The professor acknowledged this would require spending additional funds in certain parts of the state.

Darryl Paulson testified he did not believe intentional discrimination occurred in Florida against people of color during the 2000 vote meaning some sort of collusion among public officials, some sort of agreement in principle, some sort of mechanism to impose discrimination.[41] However, Professor Paulson agreed with Professor Lichtman on the voter spoilage issue, testifying that the real scandal in Florida was the inequities that existed from county to county. Disparities between wealthy and poor counties were reflected in the types of voting machinery used. Poor counties, whether in Florida or elsewhere, have always had a disproportionate number of votes not counted. [42]

TRENDS OF WIDESPREAD VOTE DILUTION

Not every denial of the right to vote or the abridgement of this right requires an analysis under the results test. For example, if the only evidence of the denial of the right to vote is a person being told by an election official that he or she could not vote because of the color of his or her skin, such evidence would not require a results analysis, but obviously would be compelling evidence of intentional discrimination.

Quantitative evidence reflecting the actual number of voters and the race of all the voters who were denied the right to vote does not exist. The only evidence that exists is the testimony of those who have stated publicly that they were denied the right to vote and the credibility of their testimony. This is precisely the type of testimonial evidence that courts usually hear in discrimination claims.

In other instances there is quantitative evidence that shows a disturbing trend of disenfranchisement related to race. Two clear examples of this evidence are the number of spoiled ballots in counties with substantial minority populations and the state's use of purge lists.[43]

Spoiled Ballots

An analysis of the incidence of spoiled ballots (votes cast but not counted) shows a correlation between the number of registered African American voters and the rate at which ballots were spoiled. The higher the percentage of African American residents and of African American voters, the higher the chance of the vote being spoiled.

To make comparisons across counties and to determine the relationship between spoiled ballots, race, and ethnicity, the Commission calculated correlations.[44] Data on spoiled ballots which include both overvotes and undervotes for president[45] were collected by the Orlando Sentinel and updated by the Collins Center for Public Policy.[46] Information on registered voters and voters by race (white, African American, other, and unknown) was provided for each county by its elections supervisor and the secretary of state of Florida.[47] For ease of comparison, race and ethnicity were analyzed as percentages of the total population.

Correlations are used to determine relationships among variables. The stronger the correlation, the more likely the association between two variables does not occur by chance. However, correlations cannot indicate cause and effect. To further explore the relationship between race and voter disenfranchisement, and to control for spuriousness and effects of other variables, additional analyses, such as regression analyses, can more fully explain how the variables interact. Nonetheless, correlation coefficients provide a useful estimate of the interdependence among the data presented in this report.

 


TABLE 1-1
Top 10 Counties with Various Population Characteristics and Ballot Rejection Rates

(counties in bold/italics have spoilage rates higher than the statewide average)
 

Highest % of white residents

Highest % of black residents 

Highest % of minority residents

Highest % of black voters

Highest % of minority voters

Highest % of white voters

Highest % living in poverty

Pasco

Gadsden

Miami-Dade

Gadsden

Gadsden

Holmes

Hardee

Citrus

Jefferson

Gadsden

Jefferson

Miami-Dade

Dixie

Hamilton

Hernando

Madison

Jefferson

Madison

Jefferson

Gilchrist

Gadsden

Charlotte

Hamilton

Hendry

Hamilton

Madison

Martin

Holmes

Sarasota

Jackson

Madison

Duval

Leon

Sarasota

Lafayette

Collier

Duval

Hamilton

Leon

Osceola

Citrus

Dixie

Santa Rosa

Leon

Hardee

Jackson

Hamilton

Pasco

De Soto

Monroe

Union

Duval

Miami-Dade

Duval

Santa Rosa

Madison

Holmes

Gulf

Hillsborough

Escambia

Hendry

Lafayette

Union

Martin

Bradford

Jackson

Taylor

Orange

Hernando

Calhoun

 

Note: For the category Highest % of minority residents, for the purposes of this analysis, the population of persons who are members of minority groups is defined as the total population minus the white, non-Hispanic population. For the category Highest % of black voters, the percentage of African American voters is based on the number of registered voters in a county who are African American. 

Source: (1) population data based on Census Bureau estimates for 1999 U.S. Bureau of the Census, Quick Facts, accessed at <http://www.quickfacts.census.gov> and (2) data on registered voters by race as provided by the secretary of state for Florida. See app. I.


The relationship between race and voter disenfranchisement is particularly evident when looking at the issue of spoiled ballots. The Commission's statistical analysis shows that the percentage of spoiled ballots[48] is positively correlated with both the percentage of the population that is African American and the percentage of the population that is a member of a minority group. Thirty-four percent of the variation in the percentage of spoiled ballots across counties can be explained by the size of the African American population in the counties.[49] Twenty-eight percent of the variation in the percentage of spoiled ballots is explained when considering the percentage of the population that is a member of a minority group.[50] Further, the percentage of the population that is white is negatively correlated with the percentage of spoiled ballots.[51] In other words, race may be one factor in explaining why ballots were spoiled in Florida counties.[52]

These relationships can best be seen when comparing the counties with the highest percentage of spoiled ballots to counties with the highest minority populations (see table 1-1). For example, Gadsden County, which had the highest spoilage rate of 12.4 percent, also has the largest African American population, at 63 percent. Indeed, considering the top 10 counties with the highest percentage of African American residents, or the top 10 counties with the highest percentage of African American voters, nine out of 10 of the counties have spoilage rates higher than the Florida average of 2.93 percent.[53] The only county with a substantial minority population that did not have a spoilage rate above the Florida average is Leon County.[54] Conversely, with respect to the 10 counties with the highest percentage of white residents and those with the highest percentage of white voters, only two counties have spoilage rates higher than the Florida average.

On a practical level this means that persons living in a Florida county with a substantial African American or people of color population are more likely to have their vote spoiled or discounted than the average Florida resident. Conversely, persons living in a county with a substantial white population have less chance of having their vote discounted than the average Florida resident. These data alone do not prove unlawful discrimination. They provide one piece of evidence, considering the totality of the circumstances, which supports the finding that the Florida election was not equally open to participation by all.

Refined Statistical Analysis of Vote Dilution

Based on the Commission's initial statistical analysis showing a correlation between race and the rate at which ballots were rejected, it was determined that a more refined statistical analysis was warranted. The Commission requested that Allan Lichtman, a voting rights expert who testified at the Commission's Miami hearing,[55] examine this issue and perform appropriate statistical analyses. Professor Lichtman was to determine whether the rejection of ballots during the 2000 Florida presidential election had a disparate impact on the votes cast by African Americans. In doing this examination, Professor Lichtman was asked to consider all unrecorded ballots both undervotes (ballots not recorded for the lack of a recognized vote) and overvotes (ballots not recorded for including more than one recognized vote).[56] The focus of his analysis was whether African Americans were more likely than other voters to have their ballots invalidated during the 2000 presidential election.[57]

Methodology and Data

The database for this study included county-level election returns for the presidential election of 2000 in Florida, including the number of ballots cast, undervotes, overvotes, and unrecorded votes. Fifty-four of Florida's 67 counties, encompassing 94 percent of ballots cast in 2000, separately recorded undervotes and overvotes. The database included identification of voting system by county and county-level statistics for a variety of social, economic, and political variables, including race and education. The racial data included the percentage of African American registered voters, based on 2000 voter registration data. The database also included precinct-level data for three of Florida's largest counties: Miami-Dade, Duval, and Palm Beach. This precinct-level data included unrecorded votes, undervotes, overvotes, and voter registration by race, based on 1998 voter registration data.[58]

Florida election returns, voting registration data, and county-by-county lists of voting technology were obtained from the Web site of the Florida Division of Elections, Department of State. Information on unrecorded votes was obtained from the governor of Florida's task force report on the Florida 2000 presidential election, Revitalizing Democracy in Florida.[59] 

Professor Lichtman used simple descriptive statistics as well as the standard statistical method of regression analysis[60] to compare the racial composition of counties and precincts with rates of overall unrecorded votes, overvotes, and undervotes. He also used ecological regression[61] that provides county-level and precinct-level estimates of the percentage of African Americans and non-African Americans casting unrecorded votes as well as either overvotes or undervotes.[62] Ecological regression procedures were recognized as appropriate for voter analysis by the Supreme Court in Thornburg v. Gingles.[63] 

For the precinct-level data of Duval, Miami-Dade, and Palm Beach counties, rates of ballot rejection for African Americans and non-African Americans can also be examined through a technique termed extreme case analysis,[64] which examines the rejection rates of ballots including both undervotes and overvotes in precincts that are heavily composed of registrants who are either African American or non-African American. The extreme case results will not correspond exactly to the results of ecological regression analysis, because it applies only to some of the precincts within a jurisdiction and those precincts examined include at least some members of other ethnic groups. While not necessarily identical, extreme case results should closely mirror the pattern of results found in ecological regression. Extreme case analysis involves no inferential procedures. It simply tallies the actual rejection rates, as well as rates of overvoting and undervoting, in the precincts chosen for the analysis. The technique of extreme case analysis is applied to precinct-level data in Duval, Miami-Dade, and Palm Beach counties with a cutoff rate of precincts that are either 90 percent or more African American in their voter registration or 90 percent or more non-African American in their voter registration.

Summary of Detailed Statistical Analysis

In Florida s 2000 election, about 2.9 percent of all ballots cast (about 180,000 ballots out of slightly more than six million ballots cast) did not contain a vote that could be counted as a vote for president. Most of these invalid ballots were recorded as either overvotes or undervotes, with overvotes outnumbering undervotes by nearly two to one.[65] Counties that separately recorded overvotes and undervotes rejected about 107,000 ballots as overvotes and about 63,000 ballots as undervotes.

Looking at the entire state using county-level data and at Duval, Miami-Dade, and Palm Beach counties using precinct-level data, both sets of data demonstrated that African Americans were far more likely than non-African Americans to have their ballots rejected in the 2000 Florida presidential election.[66] As illustrated by appendix II-A, statewide there is a strong positive correlation between the percentage of African American registrants in a county and the percentage of rejected ballots. The linear correlation (termed R) between the percentage of ballots rejected in the presidential election and the percentage of African Americans among voters is .50, with a squared correlation of (R2) of .25. This means that when one looks at the variation in the ballot rejection rates for each county in Florida, about one-quarter of that variation can be explained solely by knowing the percentage of African Americans who were registered to vote in that county. This relationship is statistically significant at levels far beyond the conventional standards used in social science.[67]

One obvious question is presented by this data: Is there some other factor that better explains this disparity in ballot rejection rates? In short, the answer is no. This statistically significant county-level correlation between race and ballot rejection rates cannot be attributed to the educational level of African Americans in Florida. A multiple regression analysis that controlled for the percentage of high school graduates and the percentage of adults in the lowest literacy category failed to diminish the relationship between race and ballot rejection or to reduce the statistical significance of the relationship.

In a very small part, the county-level relationship between race and rates of ballot rejection can be attributed to the fact that a greater percentage of African American registered voters live in counties with technologies that produce the greatest rates of rejected ballots.[68] About 70 percent of African American registrants resided in counties using technology with the highest ballot rejection rates punch cards and optical scan systems recorded centrally compared with 64 percent of non-African American registrants. Counties using punch card or optical scan methods recorded centrally rejected about 4 percent of all ballots cast, compared with about 0.8 percent for counties using optical scan methods recorded by precinct. The vast majority of rejected votes were recorded in counties using punch cards or optical scan methods recorded centrally. Such counties included about 162,000 out of 180,000 unrecorded votes in Florida's 2000 presidential election. These counties that used punch cards or optical scan technology recorded centrally included 65 percent of all ballots cast in Florida's 2000 presidential election, but 90 percent of rejected ballots.


TABLE 1-2
Ecological Regression Estimates of Statewide Ballot Rejection Rates by Race

 

        Invalid votes*

 

    Overvotes

 

 Undervotes

Black voters

Nonblack voters

 

Black voters

Nonblack voters

 

Black voters

Nonblack voters

Punch card & central- record counties

19.4%

2.2%

 

17.1%

0.8%

 

2.4%

 1.3%

 

 

 

 

 

 

 

 

 

Precinct-record counties

5.2%

0.4%

 

2.5%

0.2%

 

2.1%

0.1%

 

 

 

 

 

 

 

All counties combined

14.4%

1.6%

 

12.0%

0.6%

 

2.3%

1.2%

* The rates for rejected votes are not exactly equal to the sum of rates for overvotes and undervotes. Some invalid votes were not subdivided into either of these two categories. Also, 13 counties do not separate recorded overvotes and undervotes. Estimates for all counties are weighted means of estimates for punch card and central-record counties and for precinct-record counties.

Source: Data provided by Allan J. Lichtman, professor, Department of History, American University, June 2001.


CHART 1-1
Ballot Rejection Rates by Race, State of Florida


As illustrated in appendix II-B, within the group of counties using punch card or optical scan technology recorded centrally there is a strong, statistically significant relationship between race and rejected ballots. This correlation between race and ballot rejection is even stronger than the correlation between race and ballot rejection for all counties. The linear correlation between the percentage of ballots rejected in the presidential election and the percentage of African Americans among voters within the counties using punch cards or optical scan machinery recorded centrally is .56, with a squared correlation of (R2) of .31, a stronger relationship between race and rejected ballots than for the state overall. This means that nearly one-third of the county-by-county variation in the rates of rejected ballots within this group of counties can be predicted solely by knowing the racial composition of the counties. This relationship is statistically significant at levels far beyond the conventional standards used in social science.[69]

When the counties using the technology with the lowest ballot rejection rates are examined, the correlation between race and ballot spoilage is substantially reduced but not eliminated. There remains a statistically significant relationship between race and the rate at which ballots are spoiled even when the best technology is used. The linear correlation between the percentage of ballots rejected in the presidential election and the percentage of African Americans among registrants within the counties using optical scan machinery recorded by precinct is .28, with a squared correlation of (R2) of .08, a weaker relationship between race and rejected ballots than for the state overall. This means that slightly less than one-tenth of the county-by-county variation in the rates of rejected ballots within this group of counties can be predicted solely by knowing the racial composition of the counties. The relationship is not statistically significant at conventional standards used in social science. In summary, while the type of  technology used accounts for some of the relationship between race and the rate at which ballots are rejected, there remains a statistically significant relationship even after education is considered and the type of voting system is taken into account.

These correlations, although suggestive of a strong relationship between race and ballot rejection, pertain only to county-level relationships. They do not by themselves provide estimates of the ballot rejection rates for African American and non-African American voters included for the entire state. The ecological regression technique does provide these estimates for the state overall. As reported in chart 1-1 and table 1-2, the results are striking. For the entire state, the rate of rejection for votes cast by African Americans was an estimated 14.4 percent, compared with a rate of 1.6 percent for votes cast by non-African Americans. The greatest discrepancy is for overvotes with an estimated rejection rate of 12 percent for votes cast by African Americans, compared with an estimated rate of 0.6 percent for votes cast by non-African Americans.

To further refine this analysis, precinct data for Duval, Miami-Dade, and Palm Beach counties were examined. These counties have substantial numbers of African Americans. Duval County, with a 9.2 ballot rejection rate, had a much higher rate than the 4.0 average for punch card counties. Miami-Dade County had a rejection rate of 4.4 percent close to the punch card average. Palm Beach County had an intermediate rejection rate of 6.4 percent. Taken together, the three counties included about 85,000 rejected ballots, about 47 percent of the statewide total. Precinct-by-precinct rejection rates and African American percentages for each county are reported in appendices II-C, II-D, and II-E. For these counties, with large numbers of precincts, the graphs also include the linear regression line to portray with clarity the relationship between race and ballot rejection.


CHART 1-2
Ballot Rejection Rates by Race, Duval County: Ecological Regression Estimates


CHART 1-3
Ballot Rejection Rates by Race, Miami-Dade County: Ecological Regression Estimates


CHART 1-4
Ballot Rejection Rates by Race, Palm Beach County: Ecological Regression Estimates


CHART 1-5
Ballot Rejection Rates by Race, Duval County: 90%+ Black and 90%+ Nonblack Precincts


CHART 1-6
Ballot Rejection Rates by Race, Miami-Dade County: 90%+ Black and 90%+ Nonblack Precincts


CHART 1-7
Ballot Rejection Rates by Race, Palm Beach County: 90%+ Black and 90%+ Nonblack Precincts


TABLE 1-3
Ecological Regression and Extreme Case Analysis of Duval, Miami-Dade, and Palm Beach  Counties Ballot Rejection Rates by Race

Ecological regression results

          Invalid votes

 

             Overvotes

 

             Undervotes

 

Black voters

Nonblack voters

 

Black voters

Nonblack voters

 

Black voters

Nonblack voters

Duval 

23.6%

5.5%

20.8%

4.1%

2.8%

1.4%

Miami-Dade 

9.8%

3.2%

7.2%

1.9%

2.6%

1.3%

Palm Beach

16.3%

6.1%

14.3%

3.9%

2.2%

2.1%

 

Extreme case results

 

          Invalid votes

      Overvotes

      Undervotes

 

90%+ black precincts

90%+ nonblack precincts

90%+  black
 precincts

90%+ nonblack
precincts

90%+ black precincts

90%+ nonblack precincts

Duval

22.1%

5.8%

19.2%

4.3%

2.9% 

1.4%

Miami-Dade

9.1%

3.2%

6.6%

1.9%

2.5%

1.3%

Palm Beach

16.1%

6.2%

13.8%

4.0%

2.3%

2.2%

Source: Data provided by Allan J. Lichtman, professor, Department of History, American University, June 2001.


As indicated by the results of ecological regression analysis reported in charts 1-2, 1-3, and 1-4 and table 1-3, the estimated rejected rates derived from precinct-level data in these three counties confirm the findings derived from county-level data for the entire state. In Duval, Miami-Dade, and Palm Beach counties, as in the state overall, African Americans were far more likely than non-African Americans to have their ballots rejected.

For Duval County, as demonstrated in chart 1-2, the overall rate of rejection for votes cast by African Americans was an estimated 23.6 percent, compared with a rate of 5.5 percent for votes cast by non-African Americans. The greatest discrepancy is for overvotes, with an estimated rejection rate of 20.8 percent for votes cast by African Americans, compared with an estimated rate of 4.1 percent for votes cast by non-African Americans. For Miami-Dade County, as demonstrated by chart 1-3, the overall rate of rejection for votes cast by African Americans was an estimated 9.8 percent, compared with a rate of 3.2 percent for votes cast by non-African Americans. The greatest discrepancy is again for overvotes, with an estimated rejection rate of 7.2 percent for votes cast by African Americans, compared with an estimated rate of 1.9 percent for votes cast by non-African Americans. For Palm Beach County, as demonstrated in chart 1-4, the overall rate of rejection for votes cast by African Americans was an estimated 16.3 percent, compared with a rate of 6.1 percent for votes cast by non-African Americans. The greatest discrepancy is for overvotes, with an estimated rejection rate of 14.3 percent for votes cast by African Americans, compared with an estimated rate of 3.9 percent for votes cast by non-African Americans.[70]

As demonstrated by charts 1-5, 1-6, and 1-7 and table 1-3, the results of extreme case analysis for 90 percent plus African American and non-African American precincts confirm the findings of ecological regression analysis. For Duval County, as demonstrated by chart 1-5, in precincts that were 90 percent or more African American in their voter registration the overall rate of rejection was 22.1 percent, compared with a rate of 5.8 percent for precincts that were 90 percent or more non-African American in their voter registration. For Miami-Dade County, as demonstrated by chart 1-6, the overall rate of rejection for votes cast by African Americans was an estimated 9.1 percent, compared with a rate of 3.2 percent for votes cast by non-African Americans. As reflected in chart 1-7, in Palm Beach County the overall rejection rate for votes cast by African Americans was an estimated 16.1 percent, compared with 6.2 percent in the non-African American precincts.

In the 2000 presidential election, for Duval, Miami-Dade, and Palm Beach counties, as well as for the state overall, the percentage of African Americans among voters with rejected ballots was far greater than the African American percentage of all voters. Although the statewide results are estimates derived from county-level data that should be interpreted with caution, the wide disparity they reveal between rejection rates for African Americans and non-African Americans are confirmed by the precinct-level analysis for Duval, Miami-Dade, and Palm Beach counties.[71] The greatest disparities were found not for the undervotes that have been the focus of media attention, but for overvotes voting for more than one candidate. Overall, about twice as many Florida ballots were rejected in the 2000 presidential election as overvotes than as undervotes.

These discrepancies in small part reflect the greater concentration of African Americans compared with non-African Americans in counties using the technologies that produce the greatest percentage of rejected ballots. The evidence from Duval, Miami-Dade, and Palm Beach counties indicates that major racial disparities in ballot rejection rates remain with counties using punch card technologies. Based on precinct-level information, in Duval County statistical estimates show that African American voters were over four times more likely than white voters to have their ballots rejected in the 2000 election; in Miami-Dade County, African American voters were over three times more likely than white voters to have their ballots rejected; and in Palm Beach County, they were nearly three times more likely than white voters to have their ballots rejected. In the three counties, the rate of rejected ballots by African Americans ranged from about 10 percent to about 24 percent. For all three counties combined, the rate of rejected ballots averaged about 15 percent meaning that one out of every seven African Americans who entered the polling booth in these counties had his or her ballot rejected as invalid. These results closely mirror the county-level findings for the state overall.

Part of the problem of ballot rejection for African Americans in Florida can be solved by requiring the adoption of precinct-based optical scan systems for all counties in the state. Based on the 2000 experience, a uniform system of technology, like precinct-based optical scan systems, would reduce the number of invalid ballots for both African Americans and non-African Americans.[72] However, the use of this technology would not eliminate the disparity between the rates at which ballots cast by African Americans and whites are rejected. County-level estimates indicate that even in counties using optical scan methods recorded by precinct, the rejection rate for ballots cast by African Americans was still about 5 percent, compared with well under 1 percent for non-African Americans as shown in table 1-2.

Impact of the Purge List

A similar effect upon African Americans is presented based on an analysis of the state-mandated purge list.[73] 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. What occurred in Miami-Dade County provides a vivid example of the use of these purge lists. According to the supervisor of elections for Miami-Dade County, David Leahy, the state provides his office with a list of convicted felons who have not had their rights restored.[74] It is the responsibility of Mr. Leahy's office to verify such information and remove those individuals from the voter rolls [i]f the supervisor does not determine that the information provided by the division is incorrect. . . . [75] In practice, this places the burden on voters to prove that they are incorrectly placed on the purge list. Mr. Leahy's office sends a notice to the individuals requiring them to inform the office if they were improperly placed on the list.[76]

Many people appear on the list incorrectly.[77] For example, in the 2000 election, the supervisor of elections office for Miami-Dade received two lists one in June 1999 and another in January 2000 from which his office identified persons to be removed from the voter rolls. Of the 5,762 persons on the June 1999 list, 327 successfully appealed and, therefore, remained on the voter rolls (see table 1-4). Another 485 names were later identified as persons who either had their rights restored or who should not have been on the list.[78] Thus at least 14.1 percent of the persons whose names appeared on the Miami-Dade County list appeared on the list in error.[79] Similarly, 13.3 percent of the names on the January 2000 list were eligible to vote. In other words, almost one out of every seven people on this list were there in error and risked being disenfranchised.

In addition to the possibility of persons being placed on the list in error, the use of such lists has a disparate impact on African Americans. African Americans in Florida were more likely to find their names on the list than persons of other races. African Americans represented the majority of persons over 65 percent on both the June 1999 and the January 2000 lists (see table 1-4). This percentage far exceeds the African American population of Miami-Dade County, which is only 20.4 percent. Comparatively, 77.6 percent of the persons residing in Miami-Dade County are white; yet whites accounted for only 17.6 percent of the persons on the June 1999 convicted felons list. Hispanics[80] account for only 16.6 percent of the persons on that list, yet comprise 57.4 percent of the population. The proportions of African Americans, whites, and Hispanics on the January 2000 list were similar to the June 1999 list.[81]

This discrepancy between the population and the percentage of persons of color affected by the list indicates that the use of such lists and the fact that the individuals bear the burden of having their names removed from the list has a disproportionate impact on African Americans.


TABLE 1-4
Convicted Felons List, Miami-Dade County, 1999 and 2000

 

     June 1999

            January 2000

           Combined totals

 

Number

Percent

Number

Percent

Number

Percent

Names on list

5,762

100%

1,388

100%

7,150

100%

Appealed & removed

327

5.7%

142

10.2%

469

6.6%

Names on list in error

485

8.4%

N/A

N/A

485

6.8%

Total names removed

812

14.1%

N/A

N/A

954

13.3%

White

1,013

17.6%

251

18.1%

1,264

17.7%

Black

3,794

65.8%

884

63.7%

4,678

65.4%

Hispanic

955

16.6%

253

18.2%

1,208

16.9%

Total

5,762

100%

1,388

100%

7,150

100%

Successful appeals

 

White

98

30.0%

27

19.0%

125

26.7%

Black

155

47.4%

84

59.2%

239

51.0%

Hispanic

74

22.6%

31

21.8%

105

22.4%

Total

327

100%

142

100%

469

100%

Source: Data collected by Rebecca Kraus, senior social scientist, U.S. Commission on Civil Rights, June 2001.


Indeed, the persons who successfully appealed to have their names removed from the list provided to Miami-Dade County by the Florida Division of Elections are also disproportionately African American. One hundred fifty-five African Americans (47.4 percent of the total) successfully appealed in response to the June 1999 list, and 84 African Americans (59.2 percent of the total) successfully appealed in response to the January 2000 list. Hispanics accounted for approximately 22 percent of those who appealed in response to both lists. White Americans accounted for 30 percent of those who appealed in 1999 and 26.7 percent of those who appealed in 2000 (see table 1-4). Based on the experience in Miami-Dade County, the most populous county in the state, it appears as if African Americans were more likely than whites and Hispanics to be incorrectly placed on the convicted felons list.

CONCLUSION

The Voting Rights Act prohibits both intentional discrimination and results discrimination. It is within the jurisdictional province of the Justice Department to pursue and a court of competent jurisdiction to decide whether the facts prove or disprove illegal discrimination under either standard. The U.S. Commission on Civil Rights does not adjudicate violations of the law. It does not hold trials or determine civil or criminal liability. It is clearly within the mandate of the Commission, however, to find facts that may be used subsequently as a basis for legislative or executive action designed to protect the voting rights of all eligible persons.

Accordingly, the Commission is duty bound to report, without equivocation, that the analysis presented here supports a disturbing impression that Florida's reliance on a flawed voter exclusion list, combined with the state law placing the burden of removal from the list on the voter, had the result of denying African Americans the right to vote. This analysis also shows that the chance of being placed on this list in error is greater for African Americans. Similarly, the analysis shows a direct correlation between race and having one's vote discounted as a spoiled ballot. In other words, an African American's chance of having his or her vote rejected as a spoiled ballot was significantly greater than a white voter s. Based on the evidence presented to the Commission, there is a strong basis for concluding that section 2 of the VRA was violated.



[1] Burdick v. Takushi, 504 U.S. 428, 441 (1992) (quoting Wesberry v. Sanders, 376 U.S. 1, 17 (1964)). 

[2] Robert A. Butterworth, Florida attorney general, Testimony before the U.S. Commission on Civil Rights, Tallahassee, FL, Jan. 12, 2001, Verified Transcript, pp. 193 94. See also Complaints of Voting Irregularities in the 2000 Election, Bates Nos. 8204 8257. 

[3] Copies of these complaints were provided to the Commission pursuant to subpoenas duces tecum served on the headquarters of the Democratic and Republican parties in Florida. See Complaints of Voting Irregularities in the 2000 Election, Bates Nos. 1 612.

[4] John Ellis Bush, governor of Florida, Testimony before the U.S. Commission on Civil Rights, Tallahassee, FL, Jan. 11, 2001, Verified Transcript, pp. 98 99, 105 09. See also the Governor's Select Task Force on Election Procedures, Standards and Technology, Revitalizing Democracy in Florida, Mar. 1, 2001 (hereafter cited as Governor's Task Force, Revitalizing Democracy). 

[5] John Ellis Bush, governor of Florida, Testimony, Tallahassee Verified Transcript, Jan. 11, 2001, pp. 105 09. On March 1, 2001, the Governor's task force released its findings and recommendations, which focused largely on reforming and updating Florida s election technology. See Governor's Task Force, Revitalizing Democracy.

[6] Jackson Chin Testimony, Tallahassee Verified Transcript, Jan. 11, 2001, p. 198.

[7] D.P. Misra Testimony, Tallahassee Verified Transcript, Jan. 11, 2001, p. 443; Venghan Winnie Tang Testimony, Tallahassee Verified Transcript, Jan. 11, 2001, pp. 446 51. 

[8] See National Ass n for the Advancement of Colored People v. Harris, No. 01-CIV-120-GOLD (Fla. Dist. Ct., filed Jan. 10, 2001). See also Bradford Brown, first vice president, Miami-Dade branch of the NAACP, Testimony before the U.S. Commission on Civil Rights, Miami, FL, Feb. 16, 2001, Verified Transcript, p. 437. 

[9] JoNel Newman, attorney, Florida Justice Institute, Testimony, Tallahassee Verified Transcript, Jan. 11, 2001, pp. 128 29. 

[10] Ibid., pp. 129 30.

[11] Women were also excluded from the franchise until the 19th Amendment was ratified on August 18, 1920.

[12] 42 U.S.C. 1973 et seq.

[13] Grandfather and old soldier clauses made it easier to disenfranchise blacks without similarly disenfranchising whites by exempting from the application of literacy tests and other voting restrictions anyone who had served in the United States or Confederate army or navy, their descendants, and anyone who had himself voted, or whose father had voted, or whose grandfather had voted before January 1, 1867. 

[14] Many of the voter qualifications/regulations found unconstitutional in the past were indeed facially discriminatory along such lines as wealth, race, occupation, property ownership, and geography. See, e.g., Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966) (holding poll tax prerequisite to voting violates equal protection); Smith v. Allwright, 321 U.S. 649 (1944) (banning white primary laws); Guinn v. United States, 238 U.S. 347 (1915) (striking down grandfather clause that exempted descendants of people who voted prior to 1865 from literacy test voting prerequisite); Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621 (1969) ( holding that excluding non-property owners from school district election violates equal protection); Reynolds v. Sims, 377 U.S. 533 (1964) (discussing legislative reapportionment).

[15] The previous efforts to enfranchise African American citizens were unsuccessful. The first attempt was the Civil Rights Act of 1870, ch. 114, 16 Stat. 140, amended by Act of February 28, 1871, ch. 22, 17 Stat. 13 (codified as amended at 18 U.S.C. 241 242 and 42 U.S.C. 1971, 1983 (1988)) (establishing penalties for racially motivated interference with voting). 

It was not until the 1950s that Congress tried again. See, e.g., Civil Rights Act of 1957, Pub. L. No. 85-315, 71 Stat. 634 (codified as amended at 42 U.S.C. 1975 (1988)) (establishing the U.S. Commission on Civil Rights with responsibility for investigating and reporting on voting procedures and devices used by jurisdictions to discriminate against racial minorities); Civil Rights Act of 1960, Pub. L. No. 86-449, 74 Stat. 86 (codified as amended at 42 U.S.C. 1974 (1988)) (requiring state and local officials to retain federal election records and authorizing the attorney general to inspect such records at his discretion); Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (codified as amended at 42 U.S.C. 1971(c) (1988)) (prohibiting local election officials from applying registration tests or standards different from those administered to already registered voters and establishing a presumption of literacy for registrants who had completed a sixth-grade education).

[16] One of the legal issues the enactment of the Voting Rights Act of 1965 addressed was the restrictive reading of constitutionally protected voting rights in a 1959 U.S. Supreme Court decision. See Lassiter v. Northampton County Bd. of Election, 360 U.S. 45 (1959). In Lassiter, the Supreme Court upheld the use of English literacy tests in North Carolina as a means of qualifying voters, despite that literacy tests effectively disenfranchised a sizeable portion of African American voters. In haunting language, the Court held that absent invidious discrimination the states could limit the franchise to literate persons to promote intelligent use of the ballot. Id. at 51.

[17] Although the Voting Rights Act of 1965 was intended to enfranchise African Americans, the statute has been amended several times since its enactment. In 1975, Congress amended section 2 to specifically include within the scope of the statute other ethnic minorities. The statute is now also applicable to American Indians, Asian Americans, Alaskan Natives, and people of Spanish heritage. 42 U.S.C. 1973(b)(f)(2).

[18] Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437 (1965) (codified as amended at 42 U.S.C. 1971, 1973 1973bb-1 (1982)). The 1965 Voting Rights Act also included a provision that recognized the need for multilingual assistance for non-English speakers. It barred language discrimination at the polls for literate Spanish-speaking Puerto Rican voters who emigrate to the mainland. 42 U.S.C. 1973b(e) (1982).

[19] Pub. L. No. 89-110, 79 Stat. 445 (codified as amended at 42 U.S.C. 1971, 1973 1973bb-1 (1994)).

[20] Although the focus of this chapter is section 2 of the Voting Rights Act (VRA), section 5 is important to mention. Once there is a determination that a state or political subdivision has violated the VRA, the state or political subdivision is required, under section 5 of the VRA, to obtain preclearance (approval) from the United States District Court for the District of Columbia or the United States attorney general whenever it enacts or seeks to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting. 42 U.S.C. 1973c (1994).

[21] See Whitcomb v. Chavis, 403 U.S. 124, 149 50 (1971); White v. Regester, 412 U.S. 755, 765 66 (1973). 

[22] 446 U.S. 55 (1980). 

[23] Id. at 66 67.

[24] 42 U.S.C. 1973(a) (1984).

[25] 42 U.S.C. 1973(b).

[26] 127 Cong. Rec. 23,175 (1981) (statement of Rep. Sensenbrenner).

[27] 127 Cong. Rec. 23,176 77 (1981) (statement of Rep. Edwards).

[28] 127 Cong. Rec. 23,177 (1981) (statement of Rep. Conyers). Representative Conyers referred to 1973(a), which reads: No voting qualifications or prerequisite to voting or standard or standard practice or procedure shall be imposed or applied . . . to deny or abridge the right of any citizen to vote on account of race, color. . . .

[29] 127 Cong. Rec. 23,177 (1981) (statement of Rep. Conyers).

[30] The Senate report delineated seven factors for courts to use to determine whether there is dilution in voting rights discrimination claims. The report, however, did not define how courts should, in fact, weigh these factors. The factors are:

1. the extent of any history of official discrimination in the state or political subdivision that touched the right of members of the minority group to register, vote, or otherwise participate in the democratic process;

2. the extent to which voting in the elections of the state or political subdivision is racially polarized;

3. the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;

4. if there is a candidate slating process, whether the members of the minority group have been denied access to that process;

5. the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment, and health, which hinder their ability to participate effectively in the political process;

6. whether political campaigns have been characterized by overt or subtle racial appeals; and,

7. the extent to which members of the minority group have been elected to public office in the jurisdiction. 

S. Rep. No. 97-417, at 206 07 (1982), reprinted in 1982 U.S.C.C.A.N. 375 76.

The report added that [a]dditional factors that courts may consider include whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group and whether the policy underlying the state or political subdivision's use of such voting qualifications, prerequisite to voting, standard, practice or procedure is tenuous. Id. at 207.

[31] A plaintiff alleging a violation under the act need only prove that a practice or procedure has a discriminatory effect and is no longer required to prove that the practice was motivated by discrimination.

[32] S. Rep. No. 97-417, at 206 07 (1982), reprinted in 1982 U.S.C.C.A.N. 375 76. It is important to note that an election official s ability to foresee the impact of an election practice or procedure, alone, is not sufficient to establish intentional discrimination. The 1982 amendment specifically states that forseeability can be used to determine intentional discrimination: The plaintiff may establish discriminatory intent for purposes of this section through direct or indirect circumstantial evidence, including the normal inferences to be drawn from the forseeability of defendant's actions which is one type of quite relevant evidence of racially discriminatory purpose. Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526, 536, n.9 (1979). 

See also Testimony of Irving Younger, Senate Hearings, at 5. Village of Arlington Heights v. Metro. Hous. Develop. Corp., 429 U.S. 252, 264 68 (1977). S. Rep. No. 97-417, at 28 (1982), reprinted in 1982 U.S.C.C.A.N. 205.

[33] Thornburg v. Gingles, 478 U.S. 30, 47 (1986). 

[34] S. Rep. No. 97-417, at 27 (1982), reprinted in 1982 U.S.C.C.A.N. 204.

[35] S. Rep. No. 97-417, at 29 (1982), reprinted in 1982 U.S.C.C.A.N. 206.

[36] Allan Lichtman, professor of history, American University, Testimony, Tallahassee Verified Transcript, Jan. 11, 2001, p. 190. In Alexander v. Sandoval, No. 99-1908, 121 S. Ct. 1151 (2001), the Supreme Court held that a private citizen has no right to enforce the disparate impact regulations promulgated by the U.S. Department of Justice under Title VI of the Civil Rights Act of 1964. While the news media have correctly reported this as a decision limiting individuals ability to sue over policies that allegedly have a discriminatory effect on members of a minority group, this decision in no manner affects a person's ability to use an effects test under the VRA. Charles Lane, Justices Limit Bias Suits under Civil Rights Act, The Washington Post, Apr. 25, 2001, p. A1. The VRA in unequivocal language authorizes the use of the effects test.

[37] Allan Lichtman Testimony, Tallahassee Verified Transcript, Jan. 11, 2001, pp. 189 90.

[38] Ibid., p. 192.

[39] Ibid., p. 193. Professor Lichtman added that a finding of a violation of the Voting Rights Act would not be vitiated merely by a substantial participation of African Americans in a given election if there is a higher hurdle for minority ballots to be counted than for white ballots to be counted that operates independently of levels of turnout and the violation of the Voting Rights Act would still be present. Ibid., p. 196.

[40] Ibid., pp. 193 94.

[41] Darryl Paulson, professor of government, University of South Florida, Testimony, Tallahassee Verified Transcript, Jan. 11, 2001, p. 185. See also testimony of Ion Sancho, who discussed discriminatory intent versus effect: I don't think there was any conscious targeting or racial discrimination on the part of supervisors. I think some of the effects of not having the kinds of monies necessary to do ongoing voter education programs has the effect of in fact impacting on minorities and young people and senior citizens because this was an election that brought out voters that voted maybe only one time in the last 10 years. Ion Sancho, supervisor of elections, Leon County, Testimony, Tallahassee Verified Transcript, Jan. 12, 2001, p. 52.

[42] Darryl Paulson Testimony, Tallahassee Verified Transcript, Jan. 11, 2001, p. 187. After hearing the testimony of Professors Lichtman and Paulson, the Commission was heartened to read the statement in the report issued by Governor Bush s Select Task Force on Election Procedures, Standards and Technology that the substantial difference in error or reliability rates for different kinds of voting systems argues strongly for installing a uniform, standardized voting system for use by all voters in the [Florida] statewide 2002 election cycle. See Governor's Task Force, Revitalizing Democracy, p. 37.

[43] The term purge lists refers to the lists of names of people to be removed from voter rolls, as provided by the Division of Elections. While some object to the use of the term purge, that is in fact what occurs. A person's name is removed from the active list and placed on the inactive list. He or she is purged from the list of active voters. See chap. 5. 

[44] These correlations were calculated using SPSS for Windows, version 10.0. Population data (for total population, median income, percentage living in poverty, and percentage white, African American, Hispanic, and minority) are Census Bureau estimates for 1999. Data from the 2000 census were not available on the county level for the state of Florida at the time of this analysis. Estimates are expected to be published. The data used for this analysis are set forth in appendix I to this report.

[45] An overvote occurs when the voter selects more than one candidate. Undervotes include those votes in which the voter purposely did not select a candidate as well as votes that were not registered by the machine.

[46] See Governor s Task Force, Revitalizing Democracy.

[47] The Division of Elections, pursuant to a subpoena, provided this information. Florida Department of State, Division of Elections, Registered Electors by Party: County Totals Oct. 10, 2000, Bates Nos. 16764 16872.

[48] Spoiled ballots include both overvotes and undervotes for president. 

[49] The correlation coefficient is .587 and is significant at the .01 level. The closer the correlation coefficient is to 1 or -1, the stronger the relationship between the two variables; the higher the coefficient, the more likely it is that the relationship between the two variables does not occur by chance. Correlation coefficients between 0.4 and 0.7 suggest a medium to strong relationship between the variables. Correlations above 0.7 are considered highly correlated. Conventionally, social scientists accept as statistically significant results of either a 0.5 level of confidence, which means there is a 5 in 100 probability of the results being observed occurring by chance, or the more stringent 0.1 level of confidence, which means there is a 1 in 100 probability of the results being observed occurring by chance. Stated alternatively, a significance level of .01 can be interpreted as meaning that there is a 99 percent confidence level that the relationship observed did not occur by chance. See, e.g., Richard A. Zeller and Edward G. Carmines, Statistical Analysis of Social Data (Chicago: Rand McNally, 1978), p. 202.

[50] The correlation coefficient is .526 and is significant at the .01 level.

[51] The correlation coefficient is -.574 and is significant at the .01 level.

[52] Correlations are used to determine interdependence among variables but cannot indicate causality. For a discussion of the use of statistics as evidence in discrimination cases, see Ramona Paetzold and Steven L. Willborn, The Statistics of Discrimination: Using Statistical Evidence in Discrimination Cases (Colorado Springs: Shephard s/McGraw-Hill, 1994). Regression analysis may be used to further explore the relationship between variables.

[53] See app. I.

[54] Leon County, home to the state capital, has a state-of-the-art election system. See Ion Sancho, supervisor of elections, Leon County, Testimony, Tallahassee Verified Transcript, Jan. 12, 2001, p. 48.

[55] Allan Lichtman is a professor of history at American University in Washington, D.C. At the time of the hearing, he was chair of the Department of History at American University. His areas of expertise include political history, voting analysis, and historical and quantitative methodology. He is the author of numerous works on quantitative methodology in social science. He has coauthored with Dr. Laura Langbein, Ecological Inference, a standard text on the subject of inferring the behavior of population groups from data collected for political units. His scholarship also includes the use of quantitative and qualitative techniques to perform political and historical studies of voting. He has published articles on the application of social science analysis to the Voting Rights Act.

Dr. Lichtman has worked as a consultant or expert witness for both plaintiffs and defendants in more than 60 federal voting rights cases. This experience includes several cases in the state of Florida. He has been recognized as an expert witness in voting rights, political history, political systems, statistical methodology, quantitative analysis of voting, and socioeconomic analysis, among other matters, in more than 50 federal court cases in which he has presented oral or written testimony. A copy of his complete curriculum vitae is included in the report prepared by Dr. Allan Lichtman titled Report on the Racial Impact of the Rejection of Ballots Cast in the 2000 Presidential Election in the State of Florida (hereafter cited as Lichtman Report). The Lichtman Report is attached as appendix VII.

[56] For counties that separately record undervotes and overvotes, the total number of unrecorded votes is slightly higher than the sum of undervotes and overvotes. 

[57] This discussion of refined statistical analysis of voter dilution is a summary of the detailed statistical analyses performed by Dr. Lichtman and is in large part taken from the Lichtman Report. See app. VII.

[58] The county-level correlation between the percentage of African American registrants for 1998 and 2000 is a near-perfect .996.

[59] Additional data on undervotes and overvotes were obtained from the data tables in Siegel v. LePore, 234 F.3d 1163 (11th Cir. 2000) and from CNN and the Associated Press, <http://www.cnn.com/election/2000/resources/ballot1.htm>. Precinct-level data for Duval, Miami-Dade, and Palm Beach counties were obtained from the Web site of Bruce E. Hansen, Stockwell professor of economics, University of Wisconsin-Madison: <http://www.ssc.wisc.edu/~bhansen/vote/data. html>. Socioeconomic data were obtained from the 1990 census (such data are not yet available for 2000. Estimates of literacy rates were obtained from CASAS, Synthetic Estimates of Literacy, Percent Level 1, National Adult Literacy Survey.

[60] Regression analysis measures the influence of one or more variables, known as independent variables, on another variables known as the dependent variable. When used for political units such as the counties of Florida or the precinct within a county, regression analysis measures the extent to which the value of the dependent variable changes from one unit to another in response to changes in the value of the dependent variable. For a brief description of regression analysis, see Hubert M. Blalock, Social Statistics (New York: McGraw-Hill, 1979), pp. 382 86.

[61] Ecological regression is a standard method for inferring the behavior of population groups from data collected for aggregate units such as counties or precincts. It produces such estimates by comparing the racial composition of the various voting precincts with the division of the vote among competing candidates in each precinct. The ecological regression procedure for analyzing the behavior of population groups is set forth in Dr. Lichtman s book, Ecological Inference (Sage Series on Quantitative Applications in Social Science, 1978, with Laura Irwin Langbein). Other references on the use of ecological regression for voting analysis include Richard Engstrom, Quantitative Evidence in Vote Dilution Litigation: Political Participation and Polarized Voting, Urban Lawyer, 1985; Bernard Grofman and Chandler Davidson, eds., Controversies in Minority Voting: The Voting Rights Act in Perspective (Cambridge: Cambridge University Press, 1992); Bernard Grofman, Lisa Handley, and Richard G. Niemi, Minority Representation and the Quest for Voting Equality (Cambridge: Cambridge University Press, 1992); Allan J. Lichtman, Passing the Test: Ecological Regression in the Garza Case and Beyond, Evaluation Review, 1991.

[62] Nonblacks include non-Hispanic whites as well as Hispanics and members of other races. Because of limitations in the data available, no attempt was made to distinguish the components of the non-African American group; although, racial disparities might be even greater if African Americans and non-Hispanic whites were isolated for analysis. 

[63] 478 U.S. 30 (1986).

[64] Extreme case analysis is designed to isolate nearly homogeneous groups of African Americans and non-African Americans by examining precincts within each county studied that are either 90 percent or more African American or 90 percent or more non-African American in their voter registration. The analysis simply reports the actual ballot rejection rates in these precincts that are composed overwhelmingly of African American or non-African American registrants. Extreme case analysis provides a very useful check on the results of ecological regression analysis. It provides a comparison of actual rejection rates in nearly homogeneous African American and non-African American precincts with estimated rejection rates for African Americans and non-African Americans in all precincts derived from ecological regression analysis. For descriptions of extreme case analysis and its relation to ecological regression analysis, see Lichtman, Passing the Test, and Grofman, et al., Minority Representation, pp. 85 90.

[65] As noted above, not every rejected ballot in Florida was separately classified as either an undervote or an overvote. 

[66] The analysis first used ecological regression to estimate the turnout rates of African Americans and non-African Americans (which were approximately equal) and then applied those rates to estimate the percentage of African Americans among voters. 

[67] These correlations are consistent with those found by the Commission in its own preliminary analysis of rejected ballots as discussed in this chapter.

[68] An analysis of the voting systems used in the 2000 Florida presidential election showed that counties using punch card systems and optical scan systems with central tabulation had much higher rates of ballot spoilage than those using optical scan precinct count systems. See chap. 8. 

[69] As for the state overall, within this group of counties that account for most rejected ballots, a multiple regression analysis that controlled for the percentage of high school graduates and the percentage of adults in the lowest literacy category failed to diminish the relationship between race and ballot rejection or to reduce the statistical significance of the relationship.

[70] Duval County is 24 percent African American, Miami-Dade County is 20 percent African American, and Palm Beach County is 9 percent African American based on 1998 voter registration information. All three used punch card technology.

[71] Databases for the three individual counties and for the county-level analysis are attached to the Lichtman Report. See app. VII.

[72] Optical scan precinct tabulation voting systems work best to prevent ballot rejections when all features, including the kick out feature, are used in each polling place. In the November 2000 election, some precincts reportedly disabled the kick out feature, which prevented correction of voting errors. See chap. 8, Optical Scan Precinct Tabulation.

[73] It is important to note that this investigation did not include an examination of the rates of ineligible voters who did vote on Election Day as compared with eligible voters in Florida who were prevented from voting in this election. The scope of the investigation focused on allegations that eligible persons were denied the right to vote by errant policies and practices. The Commission heard sworn testimony and received subpoenaed documents that provided detailed information about these policies and practices. The Commission did not receive adequate information about allegations that felons ineligible to vote voted in the election to present any conclusions, findings, or recommendations about the issue into this report. 

[74] David Leahy Testimony, Miami Verified Transcript, Feb. 16, 2001, pp. 315 16.

[75] Fla. Stat. ch. 98.0975(4) (1999) (emphasis added).

[76] David Leahy Testimony, Miami Verified Transcript, Feb. 16, 2001, pp. 315 16.

[77] See chaps. 2 and 5.

[78] David Leahy Testimony, Miami Verified Transcript, Feb. 16, 2001, pp. 316 17. The Division of Elections forwarded a list to Mr. Leahy that identified 485 people as incorrectly included in the previous felon exclusion list. An excerpt from the Miami hearing transcript follows:

Mr. Quarterman: Of the individuals who challenged the determination by DBT or by the Florida Law Department that they were convicted felons, how many were found not to be convicted felons?

Mr. Leahy: We had two different lists applied. One was in June of 1999 and one was in January 2000. On the June 1999 list, let me start, there was a total of 5,762 names provided to us. Of that, there were 327 who responded with appeal forms who eventually we were told by either Florida Department of Law Enforcement or the Office of Executive Clemency that they were not convicted felons. That s 327 out of 5,762.

We were also sent a subsequent list to that June 1999 list, which informed us that 485 people that were on the original list in fact had their rights restored and should not have been on the list to begin with. So you've got to add up the 485 plus the 327 that were not convicted felons or had their rights restored out of the 5,762. Ibid.

[79] It is important to emphasize the at least. These data only capture those who actually appealed. They do not capture those who never received notice until they were denied the right to vote on Election Day or for whatever reason did not appeal.

[80] Hispanics may be of any race.

[81] See app. I.