U.S. Commission on Civil Rights

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:

• if there are differences in voting procedures and voting technologies between white areas and minority areas ; and

• if voting procedures and voting technologies used in minority areas give minorities less of an opportunity to have their votes counted. [38]

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.

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

* 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

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

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.