Chapter 3: Responsibility Without Accountability?

Article I, section 1, of the Florida Constitution provides that [a]ll political power is inherent in the people. [2] The right to vote is the most obvious exercise of this inherent power. The Florida state election laws should be guided by this constitutional mandate. Further buttressing this constitutional mandate is the National Voter Registration Act of 1993 in which Congress emphasized the right of citizens of the United States to vote is a fundamental right [and] it is the duty of the federal, state and local governments to promote the exercise of that right. [3] State election laws should be drafted and interpreted in such a manner that every citizen's right to vote is cherished and protected. Instead, there are several provisions of the Florida election law that appear to impede rather than foster this precious right.[4]

Provisions impeding the right to vote include those that permit top government officials to plead an alleged lack of authority to evade any responsibility to ensure that elections are fairly and uniformly conducted. The governor of Florida claims moral authority over election matters but claims the legal authority rests with the secretary of state. The secretary of state, who has obvious legal power, claims no practical authority stemming from a lack of enforcement authority, limited power to promulgate administrative regulations, and shared constitutional authority with county supervisors of elections in overseeing elections. The supervisors of elections have the constitutional authority to conduct elections, but maintain they are not given the resources necessary to ensure that every legal voter can exercise that right should he or she choose to vote. In addition, supervisors of elections, by default, perform responsibilities assigned by law to the governor and the secretary of state.

Florida s governor is the state's chief executive officer who shall take care that the laws be faithfully executed. [5] Florida's secretary of state is the chief election officer and oversees the Division of Elections.[6] Each county has an elected supervisor of elections, except one.[7] Together, the secretary of state and the county supervisors of elections preside over Florida's elections.

When asked about his responsibilities to ensure the election laws of Florida were faithfully executed during the November 2000 election, Governor Bush testified before the U.S. Commission on Civil Rights that he had no real legal authority over election matters except for certifying the election and serving as a member of the state canvassing board. He indicated that he recused himself from participating on the state canvassing board because his brother was one of the presidential candidates.[8] Governor Bush testified that governors have the moral authority . . . to make sure that the laws, not only the state laws, but . . . also federal laws are upheld. . . . [9] When asked what authority and responsibility he had regarding preparation for the 2000 presidential election, Governor Bush testified that he had none and that the secretary of state and the 67 supervisors of elections were responsible for that, and they carried out their duties. [10]

Under the Florida Constitution, the governor is charged with ensuring that the laws be faithfully executed, [11] a responsibility Governor Bush apparently delegated to others with respect to elections.[12] Under Florida election law, the governor is also specifically empowered to appoint special officers to investigate alleged violations of the election laws . . . [13] Governor Bush testified that he had not appointed any officers to do any investigation of alleged irregularities surrounding the November 2000 election but would [i]f there was a reason to do so. [14] As of the date of this report there is no indication that the governor has exercised this authority by appointing special officers to investigate the widespread allegations of violations of the Florida election law.[15]

The Florida legislature was unequivocal and specific when it defined the responsibilities of the secretary of state in the Florida Election Code.[16] The secretary of state is obligated by Florida law to:

Despite these explicit statutory powers, Secretary of State Katherine Harris testified that the Florida Constitution created an election system founded upon local control.[18] She testified, [N]either I nor my staff are authorized to direct the conduct of these supervisors of elections. [19]

Secretary Harris, detailing her official responsibilities, stated that within the framework provided by the Florida Constitution and the laws of the state, the Department of State is responsible for the qualification of candidates for state and federal office and for district offices where the district comprises more than one county; for campaign finance reporting for candidates who qualify with the division; and for maintaining a central voter file. [20] Secretary Harris characterized her authority over the administration of elections as ministerial and stated, [W]e attempt to achieve uniformity in the interpretation of the election code, but we are without authority to direct the conduct of county supervisors of elections. [21]

It is obvious that the county supervisors do not have unilateral authority over the administration of elections and that the secretary of state has substantial authority over the process. For example, the secretary of state is required to adopt rules establishing standards for voting systems, but the county supervisors are to establish written procedures to ensure the accuracy and security of voting systems and procedures used in their county.[22] The voting systems must be certified by the secretary of state, but decisions about which system to use are made by the supervisors of elections.

The secretary of state's testimony before the Commission describing her authority over election matters as ministerial and, therefore, limited, is in sharp contrast to the position she took before the Supreme Court. The secretary of state's view of her role as limited in election matters also seems to be in conflict with the legal power given to her and as enunciated by the Supreme Court. Finally, her views expressed at the Commission hearing contrast with the power she wielded over election matters when she chose to exercise her authority.

In Bush v. Gore,[23] the secretary of state, in arguing against further manual recounts, rather than downplaying her authority over election matters as limited or merely ministerial, maintained that it was her office's Division of Elections that was charged with interpreting and enforcing the Florida Election Code. [24] In effect, the secretary of state argued that because the legislature gave the secretary of state such broad authority over election matters, her office s interpretations of the Florida election law should be given deference.

The Supreme Court repeatedly emphasized in Bush v. Gore that the secretary of state has tremendous authority over Florida election matters. Importantly, the legislature has delegated the authority to run the elections and to oversee election disputes to the Secretary of State. [25] The legislature has designated the secretary of state as the chief election officer, with the responsibility to [o]btain and maintain uniformity in the application, operation, and interpretation of the elections law. [26] The Supreme Court agreed, finding the secretary of state is the state official charged by the legislature with the responsibility to . . . obtain and maintain uniformity in the application, operation, and interpretation of the election laws. . . . [27]

There is no doubt that the secretary of state has power over election matters. Indeed, the secretary of state's actions over the past election demonstrate this authority. Her office issued binding mandates as to when vote totals were to be submitted, whether they could be amended after submission, and what would constitute [a]n error in the vote tabulation that could trigger a manual recount of the votes.[28]

The Florida Election Code gives the secretary of state broad authority over election matters. However, the secretary of state has the discretion to exercise this authority. Jim Smith, co-chairperson of the Governor's Select Task Force on Election Procedures, Standards and Technology, and former attorney general and secretary of state for Florida, provided examples of acting in a proactive manner to attempt to ensure that all citizens of the state could be in a position to vote. His number one priority as secretary of state was election reform.[29] While in office, he pushed for initiatives on voter education and voter registration, e.g., same day registration.[30]

There is no evidence that in preparation for the November 2000 election the secretary of state focused on similar initiatives. Rather, the evidence leads to the disturbing conclusion the secretary of state chose to exercise authority to ensure the vote count was discontinued and the vote was canvassed after the election, but did little to ensure that eligible Floridians were able to access the polls, be permitted to vote, or have their votes counted.[31]

When asked about her responsibilities as chief election officer, Secretary Harris testified that she delegated, in a standard delegation authority letter, her statutory duties as chief election officer to the director of the Division of Elections.[32] She stated:

To meet his or her statutory duties, the secretary of state, through the Division of Elections, is to provide statewide coordination and direction for interpretation and enforcement of election laws. The Division of Elections issues advisory opinions to supervisors of elections and prescribes rules and regulations in the Florida Administrative Code.[34] In practice, the Division of Elections carries out the secretary of state s statutory responsibility as chief election officer.

The ultimate responsibility for ensuring that the secretary of state's statutory obligations are fulfilled remains with the secretary of state and cannot be delegated. At the Tallahassee hearing, Commission Chairperson Mary Frances Berry asked, You understand that you are the one that's responsible? Delegation takes no responsibility off your shoulders, to which Secretary Harris responded, I couldn't agree more. [35]

The county supervisors of elections statutory responsibilities are specified throughout the election code.[36] Unlike the secretary of state, county supervisors statutory duties are not set forth in one statute. County supervisors are guided by various statutes in the election code and opinions issued by the Division of Elections. Opinion DE 98-11 entitled Voting Systems and Standards for Ballots Used with Such Systems advises that supervisors are allowed to use their discretion on matters not covered by the election code or the administrative code, as long as their elections are conducted in an efficient manner with controls, procedures, and audit parameters in place so the election is accurate, fair, and capable of being reconstructed in the face of a protest or contest. [37] County supervisors may also enact election-related county ordinances provided the ordinances do not conflict with the election code.[38]

Several supervisors of elections testified before the Commission about their responsibilities concerning the administration of elections and the actions they took to fulfill their duties. Linda Howell of Madison County testified that the authority for the proper conduct of the elections in our county rests solely on me . . . I have a grave responsibility and duty to every citizen because I am employed by them, and this responsibility is taken seriously by me and I believe it's taken seriously by the other 66 supervisors in the state. [39]

Although state law charges the secretary of state to [p]rovide voter education assistance to the public, [40] Ion Sancho, supervisor of elections for Leon County, testified that it falls on the supervisors to educate voters. He stated:

When asked what guidance the Division of Elections or the state of Florida provided to the county for training election officials and poll workers on voting requirements and procedures, the supervisor of elections for Monroe County answered None. [42] When asked whether the state of Florida or its Division of Elections provided any guidance or funding regarding voter education, the Monroe County supervisor of elections response was equally direct, No. [43]

Under Florida law, supervisors of elections and the secretary of state have different responsibilities for administration of elections. The election code requires the secretary of state's office to provide technical assistance to supervisors of elections.[44] Ms. Howell testified she kind of received the technical assistance she requested from the state.[45] She said it is difficult to get technical assistance because there are so many different voting systems in the state.[46] The supervisor of elections for Monroe County testified that the only guidance his county received from the state of Florida or the Division of Elections in accordance with the secretary of state's statutory obligation to ensure election uniformity was that it must provide the names of qualified state candidates, and a ballot layout prior to elections. [47]

When asked about funding from the state for voter education, advertising, or expected problems, Denny Hutchinson, the supervisor of elections for Gadsden County from 1980 through 2000, testified that there's an assumption that you're pretty much operating on your own on an individual county basis. [48] Mr. Sancho testified he raised money from the private sector to fund voter education in his county because as supervisor of elections, you're sort of left on your own to do this without county resources or state resources, and there are no federal resources available at all. [49]

Mr. Sancho noted that the secretary of state's office asked for in their budget to the Florida legislature $100,000 for a media budget [for elections], and the governor zero funded that and refused to fund it in his budget. [50] L. Clayton Roberts, director of the Florida Division of Elections, concurred that $100,000 was requested to help advertise and educate the public on voting but that the request did not make it through the governor's office to the legislature.[51] Contrary to the sworn testimony of Mr. Roberts, the governor's office maintains the Governor's Office of Policy and Budget has reviewed this matter and, in consultation with budget officials from the Department of State, has determined that the Department of State never made any such request. [52]

Supervisors suggested simplifying and standardizing the Florida ballot and called for better guidance from the secretary of state's office on election matters.[53] The supervisors of elections are charged with the election in their counties, but their legal requirements do not mandate that they be provided with the resources necessary to meet these obligations.

The Florida voter list maintenance requirement places the burden on voters to remove themselves from a statutorily required purge list in order to be eligible to vote. This is a second way the Florida election law fosters disenfranchisement through the lack of specific accountability. The Florida election law requires the Division of Elections develop and maintain a self-sustaining, centrally maintained database that contains voter registration information of all counties in the state.[54] Additionally, the Division of Elections must provide supervisors of elections with a list identifying each person included in the central voter file as a registered voter in the supervisors county who

The Division of Elections updates its list annually and forwards the revised list to the county supervisors of elections by June 1 of each year. In fulfilling this duty, the division was required to contract with a private entity to compare information in the central voter file with available information in other computer databases, including, without limitation, databases containing reliable criminal records and records of deceased persons. [56]

Other state agencies have obligations regarding voter list maintenance requirements. The Department of Highway Safety and Motor Vehicles must annually provide a list of individuals who have been purged from its driver's license database because they have been licensed in another state to the appropriate supervisor of elections.[57] On a monthly basis, the Department of Health must provide each supervisor of elections with a list of all deceased persons 17 years of age and older who were residents of the supervisor's county.[58]

Under the Florida statutory scheme in place in 2000, once supervisors of elections received the list from the state, they were required to attempt to verify the information provided. [59] The statute continued, If the supervisor does not determine that the information provided by the division is incorrect, the supervisor must remove [the voter s name] from the registration books by the next subsequent election . . . . [60]

Without providing funding or appropriate assistance, the state of Florida placed the burdens of list maintenance squarely on the supervisors of elections.[61] The obligations of supervisors of elections include receiving information from numerous sources and using it to purge the voter lists. According to Florida laws, supervisors of elections are obligated to do the following:

The use of the purposefully crafted double negative in the list maintenance provision of the Florida Election Code created an obvious impact on the voter.[71] It is noteworthy that inaction by an eligible voter triggers his or her removal from the registration list. Once a voter's name appeared on this list, even if by gross error, the burden was shifted to the voter to prove his or her right to vote.[72] In some cases this could result in the voter being subject to fingerprinting in order to prove that he or she was erroneously placed on this list.[73] Even without considering the practical impact of how these lists are compiled, the statute on its face renders the eligible voter vulnerable to disenfranchisement because it placed the burden of attempting to verify proper placement on the purge list on already underfunded county supervisors.[74]

The ability of any state's citizens to participate fully and fairly in elections, without discrimination, is driven by the state's election laws and those laws ability to ensure some uniformity in the election processes and procedures. Florida is no exception. In theory the Florida Election Code provides that authority. The governor is to ensure that all laws, including election laws, are faithfully executed.[75] The secretary of state is designated as the chief election officer of the state whose express statutory obligation is to [o]btain and maintain uniformity in the application, operation, and interpretation of the election laws. [76]

In practice, this authority can be either delegated to the point of constructive nonexistence or exercised on such a discretionary basis as to be arbitrary. The end result is a system that delegates to the county supervisors of elections, who are subject to the budgetary and political constraints placed upon them by 67 separate county governments, the duty to ensure statewide uniformity in election matters a system that was so devoid of effective checks and balances that it failed many voters in the 2000 presidential election.

Similarly, while the duty for developing and maintaining a centrally maintained database containing voter registration information for the entire state is placed upon the state, the responsibility for verifying that the database is accurate is delegated.[77] Florida state law shifted the responsibility for identifying individuals to be purged from this list initially to a private contractor[78] and then placed it on the shoulders of the county supervisors of elections.[79] Yet, this law provided no requirement to ensure the accuracy of the data provided in these purge lists.[80] Florida state law ultimately placed the burden of ensuring the accuracy of these purge lists on the voter.[81]

Chapter 1 demonstrates that persons of color stand a greater chance of appearing on the purge list than other persons and, more disturbingly, persons of color stand a greater chance of appearing on the purge list in error.

The Florida process ensures that some voters will be wrongfully placed on the purge list and, ultimately, denied their right to vote. Further, it provides that these denials of the right to vote will fall most squarely on persons of color. These statutory provisions that mandate responsibility without accountability are obviously key ingredients in a statutory recipe for voter disenfranchisement.

[1] Susan Brownell Anthony, Is It a Crime for a Citizen of the United States to Vote, speech given in 1873 prior to her trial for voting. At that time, laws prohibited women from voting.

[2] Fla. Const. art. 1 (1968).

[3] 42 U.S.C. 1973gg (2001).

[4] This is not an exhaustive analysis of all Florida election law provisions that may serve to disenfranchise voters. Those discussed here were the subject of significant testimony during the Commission hearings.

[5] Fla. Const. art. IV, 1(a).

[6] Fla. Stat. ch. 97.012 (1999). See Fla. Const. art. IV, 5(a). Florida's secretary of state is an elected cabinet position.

[7] Fla. Const. art. VIII, 1(d); Fla. Stat. ch. 98.015(1) (1999). There are 67 supervisors of elections; 66 are elected. The Miami-Dade County supervisor of elections is appointed under a county charter.

[8] John Ellis Bush, Testimony before the U.S. Commission on Civil Rights, Tallahassee, FL, Jan. 11, 2001, Verified Transcript, pp. 97 100, 106.

[9] Ibid., p. 98.

[10] Ibid., pp. 99 100. Governor Bush testified he was aware of an increase in voter registration. He did not, however, think that the increase in voter registration was greater than in previous years. Ibid., p. 100. Governor Bush also believed he should show leadership with respect to the felony purge issue, although he had no direct responsibility to do so. Ibid., p. 116.

[11] Fla. Const. art. IV, 1(a).

[12] John Ellis Bush Testimony, Tallahassee Verified Transcript, Jan. 11, 2001, pp. 99 100.

[13] Fla. Stat. ch. 102.091 (1999).

[14] John Ellis Bush Testimony, Tallahassee Verified Transcript, Jan. 11, 2001, p. 117.

[15] See chaps. 1, 2, and 6.

[16] Fla. Stat. ch. 97.012 (1999).

[17] Id.

[18] Katherine Harris Testimony, Tallahassee Verified Transcript, Jan. 12, 2001, p. 244.

[19] Ibid., p. 241.

[20] Ibid., p. 242.

[21] Ibid., p. 243.

[22] Fla. Stat. ch. 101.015(4)(a b) (1999).

[23] 531 U.S. 98 (2000).

[24] Brief of Florida Secretary of State at 10, Bush v. Gore, No. 00-949.

[25] Bush v. Gore, 121 S. Ct. 525, 534 (2000).

[26] Id. at 535 36.

[27] Id. at 536.

[28] Id.

[29] Jim Smith Testimony, Tallahassee Verified Transcript, Jan. 11, 2001, p. 138.

[30] Ibid., pp. 164, 169 70, 179.

[31] An example of what could have been done to attempt to ensure that all legal voters would be permitted to vote is illustrated by the actions of the previous secretary of state and director of the Division of Elections. When confronted with inaccuracies in the voter purge lists being prepared by a private contractor that were used by some county supervisors of elections to remove voters, the then director of the Divisions of Elections in a memorandum to all supervisors of elections said, In short, if there is a reasonable doubt as to the accuracy of the information, you should allow a person to vote. Ethel Baxter, director, Division of Elections, Central Voter File Update, memorandum, Aug. 14, 1998. Despite continuing problems with the accuracy of these lists, discussed in detail in chapter 5 of this report, there is no evidence of any comparable attempt made by the secretary of state or the director of the Division of Elections during the 2000 presidential election to ensure that supervisors of elections were aware of continuing problems with these lists and to permit individuals to vote if there were reasonable doubts as to the accuracy of the information on the lists.

[32] Katherine Harris Testimony, Tallahassee Verified Transcript, Jan. 12, 2001, p. 240.

[33] Ibid.

[34] Ibid., p. 243. See also Florida Department of State, Division of Elections, Director's Office, n.d., <http://election. dos.state.fl.us/about/director.shtml> (accessed May 24, 2001) (providing a description of the director's responsibilities in the Division of Elections).

[35] Katherine Harris Testimony, Tallahassee Verified Transcript, Jan. 12, 2001, pp. 64 65.

[36] See generally Fla. Stat. ch. 98 106 (1999).

[37] Opinion of Florida Division of Elections DE 98-11: Voting Systems and Standards for Ballots Used with Such Systems, Formal Opinions of the Division of Elections, July 31, 1998, <http://election.dos.state.fl.us/opinions/de1998.shtml# 9811> (accessed May 24, 2001).

[38] Opinion of Florida Division of Elections, DE 00-07: The Florida Elections Commission's Duty to Enforce Violations of Election-related Provisions of Local Charters and Ordinances, Formal Opinions of the Division of Elections, Sept. 14, 2000, <http://election.dos.state.fl.us/opinions/de2000/de 00-07.shtml> (accessed May 24, 2001).

[39] Linda Howell, supervisor of elections, Madison County, Testimony, Tallahassee Verified Transcript, Jan. 12, 2001, p. 25.

[40] Fla. Stat. ch. 97.012(6) (1999).

[41] Ion Sancho, supervisor of elections, Leon County, Testimony, Tallahassee Verified Transcript, Jan. 12, 2001, p. 18.

[42] Harry Sawyer, supervisor of elections, Monroe County, Response to Commission s Interrogatory 13, Apr. 13, 2001.

[43] Harry Sawyer, supervisor of elections, Monroe County, Response to Commission s Interrogatory 14, Apr. 13, 2001.

[44] Fla. Stat. ch. 97.012(5) (1999).

[45] Linda Howell Testimony, Tallahassee Verified Transcript, Jan. 12, 2001, Jan. 12, 2001, p. 32.

[46] Ibid.

[47] Harry Sawyer, supervisor of elections, Monroe County, Response to Commission s Interrogatory 12, Apr. 13, 2001.

[48] Denny Hutchinson Testimony, Tallahassee Verified Transcript, Jan. 12, 2001, pp. 22, 102. Mr. Hutchinson was the supervisor of elections during the November 2000 election; his term expired in January 2001. Ibid., pp. 9, 21 24.

[49] Ion Sancho Testimony, Tallahassee Verified Transcript, Jan. 12, 2001, p. 35.

[50] Ibid., p. 34.

[51] L. Clayton Roberts Testimony, Tallahassee Verified Transcript, Jan. 12, 2001, pp. 269 70.

[52] See app. VI, Charles T. Canady, general counsel, Office of the Governor for the State of Florida, letter to Edward A. Hailes, Jr., general counsel, U.S. Commission on Civil Rights, June 6, 2001, pp. 6 7.

[53] See Ion Sancho Testimony, Tallahassee Verified Transcript, Jan. 12, 2001, p. 23.

[54] Fla. Stat. ch. 98.097 (1999).

[55] Fla. Stat. ch. 98.0975(1) (1999) (emphasis added). The list contains the name, address, date of birth, race, gender, and any other information identifying the voter. Id.

[56] Fla. Stat. ch. 98.0975(2) (3)(a) (1999) (emphasis added). This provision of the law was changed by the Florida Election Reform Act of 2001. See Epilogue.

[57] Fla. Stat. ch. 97.057(7)(1) (1999).

[58] Fla. Stat. ch. 98.093(1) (1999).

[59] Fla. Stat. ch. 98.0975(4) (1999).

[60] Id. (emphasis added).

[61] See chap. 4.

[62] Fla. Stat. ch. 98.055(2)(c)(1) (1999).

[63] Fla. Stat. ch. 98.055(2)(b) (1999).

[64] Fla. Stat. ch. 98.065(1) (3) (1999). The registration list program must be conducted in each odd-numbered year and no later than 90 days prior to any federal election.

[65] Fla. Stat. ch. 98.065(2)(a) (1999).

[66] Fla. Stat. ch. 98.065(2) (1999); Fla. Stat. ch. 98.065(4) (1999). See also Fla. Stat. ch. 98.075(2) (1999) (providing that supervisors may send address confirmation requests to voters believed to have moved from their legal residences).

[67] Fla. Stat. ch. 98.065(5) (1999). Voters on the inactive list should be allowed to vote and change their names and addresses at the polls. Id.

[68] Fla. Stat. ch. 98.075(3) (1999).

[69] Fla. Stat. ch. 98.093(2) (1999).

[70] Fla. Stat. ch. 98.093(3) (1999).

[71] The double negative was found in the Florida Election Code language that provided, If the supervisor does not determine that the information provided by the division is incorrect, the supervisor must remove from the registration books by the next subsequent election [the voter's name]. Fla. Stat. ch. 98.0975(4) (1999) (emphasis added). This provision was changed by the Florida Election Reform Act of 2001. See Epilogue.

[72] See David Leahy, supervisor of elections, Miami-Dade County, Testimony, Miami Verified Transcript, Feb. 16, 2001, p. 315. David Leahy has been the supervisor of elections for Miami-Dade County since 1981. Ibid., pp. 312 13. See also David Leahy, supervisor of elections, Miami-Dade County, Response to Commission s Interrogatory 8, Apr. 10, 2001 (explaining that if name is on the felon list erroneously, voter must provide response or proof).

[73] Linda Howell Testimony, Tallahassee Verified Transcript Jan. 12, 2001, p. 43. David Leahy, Response to Commission's Interrogatory 8.

[74] See chap. 5.

[75] Fla. Const. art. IV, 1(a).

[76] Fla. Stat. ch. 97.012 (1999).

[77] Fla. Stat. ch. 98.097 (1999).

[78] Fla. Stat. ch. 98.0975(3)(a) (1999).

[79] Fla. Stat. ch. 98.0975(4) (1999).

[80] Fla. Stat. ch. 98.0975 (1999).

[81] Fla. Stat. ch. 98.0975(4) (1999).