U.S. Commission on Civil Rights

Voting Irregularities in Florida During the 2000 Presidential Election

Introduction

No person acting under color of law shall fail or refuse to permit any person to vote who is entitled to vote under any provision of this [Voting Rights] Act or is otherwise qualified to vote, or willfully fail or refuse to tabulate, count, and report such person's vote.[1]

BACKGROUND

The 2000 presidential election and its aftermath became the focus of international attention on the application of America's election laws and policies. The state of Florida's electoral process took center stage as the world paused to observe the unfolding drama of identifying the next President of the United States.[2] During this time, many allegations of voting irregularities arose as to whether eligible voters were hindered and in some cases prevented from voting for the presidential candidate of their choice, and if votes that were cast were properly tabulated.

When the U.S. Commission on Civil Rights receives allegations of voting irregularities it is obligated to investigate.[3] Accordingly, the Commission initiated an investigation into these issues. In the area of voting rights, the Commission is specifically authorized to investigate allegations of deprivations as a result of any pattern or practice of fraud; of the right of citizens of the United States to vote and have votes counted. [4] The Commission's authority to conduct hearings emanates from 1957 legislation that established it as an independent bipartisan federal agency of the U.S. government. The Commission is charged by federal law:

• to appraise the laws and policies of the federal government;

• to serve as a national clearinghouse for information all in connection with discrimination or the denial of equal protection of the laws of this nation, because of race, color, religion, sex, age, disability, national origin, or in the administration of justice.

The Commission's investigation in Florida was intended to determine if there were unequal allocations of election resources throughout Florida's counties, and whether there were isolated or systemic practices and/or policies that prevented Florida residents from voting. Moreover, the investigation focused on who was responsible for making the critical decisions regarding resource allocations for Election Day activities, the reason these decisions were made, and the effect these judgments had on specific communities. The investigation included public fact-finding hearings in Tallahassee on January 11 12, 2001, and in Miami on February 16, 2001. In total, hundreds of witnesses were interviewed by Commission staff, and more than 100 witnesses testified under oath before the Commission, including approximately 65 witnesses who were selected for the two hearings due to their knowledge of and/or experience with the issues under investigation. The Commission heard testimony from top elected and appointed state officials, including the governor, the secretary of state, the attorney general, the director of the Florida Division of Elections, the general counsel of the Florida Elections Commission, other current (and former) Florida state and county officials, and a representative of DBT Online (a ChoicePoint company that was involved in the state-sponsored removal of felons from Florida s voter registration lists).

During the hearings, Florida citizens, registered voters, and experts on election reform issues, election laws, and procedures, and voting rights provided sworn testimony. The co-chairperson and executive director of the Select Task Force on Election Procedures, Standards and Technology, established by Florida Governor John Ellis (Jeb) Bush, testified before the Commission. Various county supervisors of elections, county commission officials, law enforcement personnel, and a state's attorney also presented their sworn statements. In addition to the scheduled witnesses, the Commission extended an opportunity for concerned persons, including members of the U.S. Congress and the Florida legislature, to submit relevant testimony under oath. Furthermore, the Commission subpoenaed documents from witnesses containing pertinent information that could assist with this investigation and augment submitted testimony. These witnesses produced more than 118,000 pages of relevant documents, computer discs, CD-ROMs, and tapes of data.

After the hearing phase of this investigation, the staff reviewed testimony, posed various interrogatories to a number of witnesses and examined their responses to these interrogatories, conducted a deposition of a hearing witness at the request of Commissioners, conducted supplemental research on areas of law and fact, and performed an extensive review of the subpoenaed documents.

During the course of this investigation, Chairperson Mary Frances Berry sent a letter to Governor Bush expressing her deep disappointment with his failure to address the most serious problems that occurred in Florida during the 2000 elections. [5] Chairperson Berry was referring to a statement of priorities that Governor Bush presented during the opening of the Florida legislative session. She indicated that his support for voting technology reforms in Florida was necessary and a step in the right direction. She emphasized, however, that [t]hese measures standing alone are insufficient to address the significant and distressing issues and barriers that prevented qualified voters from participating in the recent presidential election. [6]

At the Commission's March 9, 2001, meeting, Commissioners approved and released a statement on the status of this investigation. The Commissioners reported that voter disenfranchisement appears to be at the heart of the issue. [7] The status report offered a preliminary assessment of the evidence by the Commissioners. It identified an array of problems including, but not limited to, differences in resource allocations that may have operated so that protected groups may have had less of an opportunity to have their votes counted. [8] The statement expressed the hope of Commissioners that Florida officials, as well as officials in other jurisdictions where barriers existed, will promptly resolve these major problems that occurred on their watch, instead of hoping with the passage of time the public will forget. [9]

The Commissioners also agreed at this meeting to hold a future hearing in Florida to hear testimony from state and local officials to assess what legislative changes have been proposed or enacted at the state and local levels and to report to the public on what progress has been made.

The day before the Commission's May 4, 2001, meeting, the Florida legislature announced it agreed upon a legislative package that would overhaul the state s voting system. The Commission issued a statement commending the approval of Florida electoral reform legislation that addresses many of the issues presented to the Commission during its investigation. [10] Striking a cautionary note, Chairperson Berry, however, observed, We are all cognizant of the fact that not all areas of concern are covered, such as the need for language and special needs assistance. We know also that this legislation can only be effective if the implementation matches the legislature s intent to eliminate the problems. [11] The Commission also renewed its commitment to travel to Florida to assess the impact of the legislation and to encourage appropriate distribution of resources to eliminate the well-publicized difficulties that were experienced in the last election. [12] On May 9, 2001, the Florida Election Reform Act was signed into law by Governor Jeb Bush.

In the final stages of this investigation, the Commission followed its procedures by conducting legal sufficiency, defame and degrade, and editorial policy board reviews. Affected agencies were afforded an opportunity to review and respond to applicable portions of this report. These comments were then considered and where appropriate are reflected in this final report.

OBJECTIVE

The Commission's report analyzed the Voting Rights Act of 1965 (VRA), its subsequent amendments, and other applicable statutes. The objective of this investigation was not to determine if violations of these laws occurred, since the Commission does not have enforcement powers, but to provide a backdrop for an analysis of the civil rights implications of the Commission's factual findings. Obviously, some analysis of the rights afforded to U.S. citizens pursuant to the VRA was an important component of the investigation. Among other provisions, the VRA provides that:

• All citizens of the United States who are otherwise qualified by law to vote at any election by the people in any State . . . shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulation of any State or Territory, or by or under its authority, to the contrary notwithstanding.[13]

• No person acting under color of law shall in determining whether any individual is qualified under State law or laws to vote in any election, apply any standard, practice, or procedure different from the standards, practices, or procedures applied under such law or laws to other individuals within the same county, parish, or similar political subdivision who have been found by State officials to be qualified to vote.[14]

Based on a complete review of the record, and employing the appropriate statistical analysis, the Commission examined whether Florida's eligible voters experienced disenfranchisement during the 2000 presidential election as a result of disparate treatment or based on apparently neutral factors that resulted in denying the right to vote. Initially, under the VRA, a plaintiff could prove a violation by showing that government practices resulted in the denial of the right of any citizen to vote on the basis of race or color.[15] The Supreme Court subsequently ruled that establishing a violation of the VRA required proof of intentional discrimination, which diminished a voter s ability to challenge practices that disenfranchised African Americans.[16] Because of the unfortunate legacy and the lingering effects of race-based discrimination, Congress reacted immediately to reverse the Supreme Court and prevent the continuation of discriminatory practices in voting that served to disenfranchise African Americans and other persons of color.

In 1982, Congress passed an amendment to the VRA, providing provisions to further guarantee the sacred right to vote for all eligible citizens of the United States. Congress understood that the nearly impossible burden of proving discriminatory intent would preclude the elimination of policies that although neutral on their face had the effect of disenfranchising persons of color. Thus, the VRA amendments of 1982 reversed the Supreme Court and clarified that discrimination could be established by either showing intentional discrimination or that the totality of the circumstances results in a violation of the VRA.

The essence of this change in the law was to make it clear that a specific intent to discriminate is not required to establish a violation of the VRA. Rather, the proper test is whether the result of the election practice is one that is not equally open to minority voters or whether the election practice gives minority voters less opportunity to participate in the electoral process.[17]

Additionally, the Commission recognizes that other factors could have contributed to voter disenfranchisement in Florida during the 2000 presidential election. For example:

• The Western Florida Time Zone Controversy. On the evening of November 7, 2000, various television networks and cable stations announced the closure of Florida's polls, exit poll outcomes, and/or the predicted results of the presidential and Florida senate races at 6 p.m. Central Standard Time (7 p.m. Eastern Standard Time), when polls in the western Florida panhandle did not officially close until 7 p.m. Central time.[18]

• Absentee Military Ballots. Florida absentee ballots from overseas members of the nation's military were delivered to the state via the U.S. mail service, but questions arose as to their validity because of their late arrival, improper certification, incomplete applications, illegible ballots, improper certification by election officials, or the lack of required postmarks.[19]

• Complaints of Voter Fraud. There were allegations that some Florida residents voting in the November 2000 election were not eligible to vote.[20]

While recognizing that the above factors do raise concerns of voting irregularities, the Commission did not receive a significant number of complaints or sufficient evidence during its Tallahassee and Miami hearings pertaining to how these issues created possible voter disenfranchisement in Florida.[21]

Traditionally, the Commission has focused its attention on the expansion of voting rights issues and related litigation.[22] The Commission has historically played an important role in investigating these types of allegations and has made recommendations that contributed to the expansion of protections of the right to vote. Accordingly, in this report, the Commission continues in its traditional role by investigating voting irregularities in Florida during the 2000 presidential election.

Chapter 1 of this report, Voting System Controls and Failures, provides a brief discussion of the Voting Rights Act. It also discusses evidence of voter disenfranchisement and how this disenfranchisement affected the rights of people of color to vote in the 2000 presidential election. Chapter 2, First-Hand Accounts of Voter Disenfranchisement, provides summaries of the testimony of people who witnessed what occurred at polling places on November 7. This chapter includes details of such issues as poll workers inability to contact county supervisors of elections, polling places being moved without notice, and police presence at or near polling places.

Chapter 3, Responsibility Without Accountability? focuses on state election accountability and responsibility issues and discusses who has the ultimate authority for ensuring full participation in the Florida election process. This chapter discusses the requirements of voting eligibility list maintenance. Chapter 4, Resource Allocation, examines the following election topics: financial election resources for the state of Florida, the state's allocation of financial resources, counties allocation of financial resources, the state s efforts to establish election uniformity throughout Florida, Election Day preparations, and Election Day resources.

Chapter 5, The Reality of List Maintenance, discusses the implementation of Florida s voter list maintenance obligations and how it affected voters. Chapter 6, Accessibility Issues, examines special needs assistance concerns and how individuals with disabilities and those with language needs were affected during the November 2000 election.

Chapter 7, Casting a Ballot, focuses on Florida election law procedures for voting in two broad categories: the use of affidavits to resolve problems arising at the polling place and the use of absentee ballots. Chapter 8, The Machinery of Elections, provides information on the types of equipment used on Election Day, the effectiveness of this voting machinery, a contextual framework for election technology improvements, and voting machinery experts perspectives. Findings and recommendations of the Commission are presented in chapter 9. The Epilogue provides a brief overview of the pertinent legislative and other governmental actions that have occurred since the Commission began its investigation.

This report is the final step in the Commission's examination of the testimonial and documentary evidence, laws, processes, procedures, and methods of resource allocation in Florida that may have resulted in a significant number of voters who were either denied the right to vote or did not have their vote counted in the 2000 presidential election. Additionally, this report includes an analysis of relevant evidence that contributes to the Commission's findings and policy recommendations.