U.S. Commission on Civil Rights

Voting Irregularities in Florida During the 2000 Presidential Election

Epilogue

Days after receiving allegations of voter disenfranchisement in Florida during the November 2000 election, the U.S. Commission on Civil Rights began a preliminary investigation. As the Commission's investigation was in progress, Florida's governor appointed a task force to investigate the alleged election irregularities and suggest reforms to the state election laws. The task force was mandated to complete its study by March 1, 2001. After the Commission hearings in January and February, the secretary of state presented a proposal to revamp the state s voting systems. The Florida House of Representatives and Florida Senate also considered proposed legislation to reform the state's voting systems. The Florida legislature ultimately passed comprehensive election reform legislation, the Florida Election Reform Act, which was signed into law by the governor on May 9, 2001.

GOVERNOR BUSH S SELECT TASK FORCE

On December 14, 2000, Florida Governor Jeb Bush issued an executive order creating the Select Task Force on Election Procedures, Standards and Technology.[1] The task force co-chairperson, Jim Smith, originally believed that Governor Bush wanted the task force to focus on technology.[2] Subsequent to the Commission's announcement that it would hold hearings to investigate allegations of election irregularities, the scope of the task force s investigation expanded and when Governor Bush testified at the Commission s Tallahassee hearing he was questioned by Commissioners about the scope of his task force. The governor confirmed that the task force was charged with investigating all questions raised by the 2000 presidential election.[3] On March 1, 2001, the governor's task force published its conclusions in an 80-page report, which includes 35 recommendations.[4] The proposals range from minimum standards for voter education to expanding the time between an election and the certification of the results of that election.[5]

SECRETARY OF STATE S PROPOSED REFORMS

After testifying before the Commission on January 12, 2001, about her limited involvement in election matters,[6] Florida Secretary of State Katherine Harris proposed a three-year, $200 million plan to modify the voting system.[7] She suggested leasing optical scan voting systems before the 2002 elections and then urged the legislature to consider changing to touch screen systems before 2004.[8]

FLORIDA LEGISLATURE S PROPOSED REFORMS

In the aftermath of the presidential election and the Commission's ongoing investigation, the Florida legislature considered numerous bills and resolutions.[9] Many of these legislative proposals were eventually consolidated into one bill. On May 4, 2001, the Florida legislature passed the Florida Election Reform Act of 2001,[10] and on May 9, 2001, Governor Bush signed the bill into law. To place the law that was ultimately passed in some perspective, the following is a brief discussion of the proposed changes that were considered by the Florida legislature.

Absentee and Military/Overseas Voting

There were 10 Senate bills that proposed changes in the casting and tabulating of absentee ballots.^[11] Senate Bill 1150 and its counterpart, House Bill 749, would have eliminated the requirement that a person requesting an absentee ballot disclose his or her social security number as well as the requirement that the last four digits of the elector's social security number be on the ballot for it to be tabulated.^[12] Although these bills would simplify the absentee ballot process,[13] they appear to be inconsistent with earlier legislation passed to eliminate voter fraud after the problems that arose with absentee voting in the 1997 Miami mayoral election.^[14] In fact, some senators suggested that the former rules should be enforced.

Election Day Registration

The Commission heard testimony from Floridians who believed they properly registered to vote but were turned away on Election Day because their names did not appear on the voter rolls.[15] Senate Bill 1574 proposed that

registration books be open on Election Day during the time election polls are open and at other times during the regular office hours of the supervisor of elections.[16]

Senate Bill 1590 proposed that voters be permitted to register and request absentee ballots on-line. Senate Bill 1950 and House Bill 673 proposed that each school district establish voter registration programs that offer eligible high school students the opportunity to register to vote and/or update their voter registration records at least once a year.[17]

Former Felons

Senate Bill 152, entitled Felons Right to Vote, called for the automatic restoration of convicted felons voting rights one year after the completion of the sentence, unless objected to by a majority of the Board of Executive Clemency. Senate Bill 404 and House Bill 51 proposed creating the Citizens Empowerment Act, which mandated the automatic restoration of former felons voting rights following completion of the sentence of incarceration and community supervision.[18] The bill would have also required the Department of Corrections to complete any necessary paperwork and file it with the Board of Executive Clemency.[19]

Florida Senate Joint Resolution 406 and House Joint Resolution 49 proposed amending section 4 of article VI of the state constitution as it relates to the rights of convicted felons to vote.[20]

People with Limited English Proficiency and Those with Disabilities

Assistance to those with limited English proficiency was another issue on which the Commission heard testimony.[21] House Bill 173[22] proposed to make it easier for Floridians who do not speak English both to register and to vote. The bill would revise the information mandated for the statewide uniform registration form and requires that the registration forms be available in languages other than English, including Spanish and Creole. Under this bill, voting assistance would be provided for a member of a language minority group, if the group constituted more than 1 percent of the county s population.[23]

The bill also requires precinct workers to permit voters whose primary language is not English to receive assistance in voting booths while voting. Any person who is eligible to register and unable to read or write, whose primary language is other than English, or who, because of a disability, needs assistance in voting would upon that person's request be registered by the supervisor and would be entitled to receive assistance at the polls under the conditions prescribed by this section.[24]

Poll Closings

Senate Bill 748 proposed uniform opening and closing of polls across the state because Florida is in two time zones. Specifically, the bill provided for opening polls at 7:30 a.m. Eastern Standard Time and 6:30 a.m. Central Standard Time and for closing polls at 7:30 p.m. Eastern Standard Time and 6:30 p.m. Central Standard Time.[25]

Provisional Ballots

Senate Bill 1118 included a provision that would create procedures for casting and counting provisional ballots. The bill would require verification of a voter s eligibility if the voter's name was not on the precinct register. The bill would also permit a voter who requests an absentee ballot, then appears at the polls on Election Day, to vote through a provisional ballot if the absentee ballot has not been submitted.[26]

Purging of Voters

Senate Bill 1739 would have eliminated the statutory obligation to have the voter purge lists developed by a private contractor. It would have restored the roles of the Florida Department of Law Enforcement, the Board of Executive Clemency, and the Office of Vital Statistics in directly furnishing information to the supervisors of elections that relates to the rights of citizens to vote.[27]

Voter s Bill of Rights

The Voter s Bill of Rights was originally proposed as Senate Bill 2098 and included a 10-point list of a voter's rights. It, like many proposals, was incorporated into the Election Reform Act.[28]

THE NEW LAW: THE FLORIDA ELECTION REFORM ACT OF 2001

The new Election Reform Act is comprehensive legislation that combines aspects of several bills considered by the Florida legislature.[29] The act makes major changes to the election laws of the state in areas of concern addressed by the Commission during the hearings in Tallahassee and Miami, including absentee ballots, ballot uniformity, poll worker training and education, provisional ballots, the purging of people from voter lists, voter education, and voting system modernization. The act, however, was silent on several areas of concern raised at the Commission hearings, including Election Day registration, former felons voting rights, language assistance, and roadblocks. The following discussion is a brief review of some of the key provisions of the new law.

Absentee Voting and Military/Overseas Voting

The Election Reform Act includes provisions that eliminate the need to provide social security numbers or voter identification numbers on absentee ballots.[30] Moreover, the act redefines absent elector to include any qualified voter who casts an absentee ballot.[31]

Poll Closings

The Election Reform Act calls for a study by the Division of Elections and the Florida State Association of Supervisors of Elections into the potential benefits and drawbacks of having uniform poll opening and closing times throughout the state.[32]

Poll Workers

The Election Reform Act has a section on poll worker recruitment and training.[33] The act requires the supervisor of elections to ensure minimum poll worker training and education and requires the Division of Elections to distribute the sum of $5,949,375 in fiscal year 2001 2002 to the counties to fund comprehensive voter education programs and poll worker recruitment and training programs provided in the act. [34] The law makes clear, however, that no county shall receive any funds under that provision until the supervisor of elections provides the Department of State a detailed description of the voter education programs to be implemented . . . for the 2002 election cycle. [35]

Provisional Ballots

The inability of voters to cast provisional ballots when their registration status could not be confirmed by the supervisors of elections offices was a topic of significant testimony at the Commission hearings.[36] The Election Reform Act allows for voting by provisional ballot but states that if the voter is registered in a different precinct from the one in which the ballot is cast, then the provisional ballot will not be counted.[37]

Purging of Voters

The Election Reform Act creates a new section of the election code in section 98.0977. The new provisions mandate the creation of the statewide voter registration database.[38] The act provides that the [Department of State] may contract with the Florida Association of Court Clerks to analyze, design, develop, operate and maintain a statewide on-line voter registration database and associated web site, to be fully operational statewide by June 1, 2002. [39] The database will contain all the voter registration information from each of the 67 supervisors of elections and will be on-line. The Election Reform Act repealed section 98.0975 entirely, which called for the state to contract with a private entity to maintain the state's voter registration lists.[40]

Uniform Ballots

The Election Reform Act amends section 101.151 to define, in detail, the specifications for ballots. For example, it addresses the issue of uniformity of the ballot: The department rules shall graphically depict a sample uniform primary and general election ballot form for each certified voting system. [41]

Voting Systems

The Election Reform Act decertifies punch card machines[42] and at the same time certifies touch screen systems.[43] It authorizes the distribution of $7,500 per precinct for counties with populations of 75,000 or less and $3,750 per precinct for all other counties.[44] Moreover, the act requires second-chance technology, e.g., scanners, at the precinct level that would determine whether voters made mistakes, specifically overvotes or undervotes, and allow voters to correct those mistakes.[45]

Voter s Bill of Rights and Responsibilities

The Election Reform Act requires a 10-point list of voter's rights be published and posted inside every precinct in the state. The Voter's Bill of Rights provides that each registered voter has the right to:

• vote and have his or her vote accurately counted;

• cast a vote if he or she is in line when the polls are closing;

• ask for and receive assistance in voting;

• a replacement ballot if he or she has voted in error;

• an explanation if his or her registration is in question;

• cast a provisional ballot if his or her registration is in question;

• prove his or her identity by signing an affidavit if election officials doubt the voter's identity;

• written instructions to use when voting, and, upon request, oral instructions in voting from elections officers;

• vote free from coercion or intimidation by elections officers or any other person; and

• vote on a voting machine that is in working condition and that allows votes to be accurately cast.[46]

The Election Reform Act includes the following list of voter responsibilities:

• study and know candidates and issues;

• keep his or her voter address current;

• know his or her precinct and its hours of operation;

• bring proper identification to the polling station;

• know how to operate voting equipment properly;

• treat precinct workers with courtesy;

• respect the privacy of other voters;

• report problems or violations of election law;

• ask questions when confused; and

• check his or her completed ballot for accuracy.[47]

CONTINUING ISSUES

Former Felons

The Commission heard testimony and secured documents on the issue of felon disenfranchisement.[48] In some states, individuals convicted of felonies retain their right to vote or have that right automatically restored upon completion of their felony sentence. Seven days after the Commission's Miami hearing, the Florida Office of Executive Clemency issued a letter revising the state's policy so that individuals with felony convictions from jurisdictions with automatic civil rights restoration need not apply for restoration of their voting rights in Florida.[49] Despite this, Florida still requires these individuals to apply for clemency in order to vote in Florida. Some civil rights organizations charge this practice is unconstitutional.[50]

While the Senate voted for the automatic restoration of ex-offenders voting rights, House Speaker Tom Feeney rejected automatic restoration of convicted felons voting rights.[51] In the alternative, House legislators supported an easier process for applying for restoration of voting rights.[52] The Florida legislature ultimately rejected changes that would have allowed for the automatic restoration of convicted felons voting rights, and the Election Reform Act does not address the voting status of former felons.

People with Limited English Proficiency and Those with Disabilities

The Election Reform Act fails to address issues confronting voters with special needs. First, it proposes no changes to assist individuals whose primary language is not English, specifically Spanish or Creole speakers, in casting their votes. Similarly, the Election Reform Act proposes no specific changes to assist individuals with disabilities.

Absentee Ballots

The Election Reform Act, in trying to correct one problem, has reopened the door to past abuses of the absentee ballot. By not requiring the requestor or the elector to provide social security numbers on ballots, the Election Reform Act ignores a potential fraud problem in absentee voting. Moreover, persons who present themselves at the poll must present identification; absentee voters are not required to provide identification.[53]

CONCLUSION

The Election Reform Act of 2001 must be viewed as a much-needed step toward ensuring Floridians the right to vote. The Florida legislature attempted to address some of the major problems caused by the failure of voting procedures and systems in the 2000 presidential election.[54] The new law has provisions that reform and improve absentee voting, military and overseas registration and voting, poll worker education and training, and the voter registration maintenance system. It also provides for the use, although limited, of provisional balloting.

Despite this positive change, only time will tell if this legislation will be effective. Much depends on how its provisions are implemented by state and local officials. It is unknown whether adequate resources will be budgeted by the state and local governments to ensure the law's effectiveness.[55] Several million dollars have been authorized for voter education, poll worker selection and training, and new machinery;[56] it remains to be seen whether it is enough to equip all voters, rural and urban, with the best machinery to ensure that their votes will be correctly tallied.

Several important issues were not addressed by this legislation. The failure to address these issues continues the legacy of disenfranchisement. These issues include the failure to extend voting rights to former felons, the lack of required language assistance to non-English-speaking voters, and the failure to provide
meaningful voting assistance to individuals with disabilities. Additionally, Florida's new election law still provides no meaningful process for a person whose right to vote on Election Day is denied to challenge that denial.

Ultimately, the success or failure of Florida's election reform efforts depends on the leadership provided by Florida's highest elected officials. The Commission hopes the lessons learned from the November 2000 election will lead to the effective implementation of long-lasting reforms throughout the state that send a clear message to the country about the importance of the right to vote and the consequences of its denial.