The Florida Model for International Standard Elections

The heated rhetoric of negative judgements of Cambodia's imperfect democracy might benefit from a modicum of modesty from American organizations and those funded from sources in the US, another imperfect democracy.  (My own political history begins with registering black voters in Mississippi in the summer of 1964 when lives were risked and lost for this most elemental democratic right--four decades ago.)

It should be noted that our own rather antiquated electoral college system has given us a President who nationally received half a million votes less than his opponent.  More importantly, the actual voting majority which placed him in the White House was one vote in a highly partisan Supreme Court decision.  Meticulous media sponsored post election counts suggested that had every vote been counted in Florida, we would have a different President today.  However, there was little enthusiasm for debating these findings in the immediate aftermath of 9/11 and overwhelming demand for national unity. 

Most disturbing is the substantial evidence that the vote itself in Florida would not necessarily meet some of the criteria applied to Cambodia for "free and fair" elections.  Following are excerpts from the report about the 2000 election in Florida produced by the US Commission on Civil Rights, an official body of the US government.  (I don't recall that the UN or the EU were invited to observe or make their own evaluation of the state of American democracy.) 

It is essential to consider the electoral process in Cambodia in the context of its own unique history and culture, including the enduring consequences of the Khmer Rouge period and foreign intervention from many sources, as well as the costly civil war that took place overtly from 1979 to 1991 but lingered on until 1997.   Comparisons to the experience of other countries, even measurement against a presumed international standard, provide only limited guidance in assessing where Cambodia finds itself in 2003 on the path to greater democracy. 

As international observers it is important that we be honest and non-partisan, and provide the assistance of our presence, but we should also forswear bringing our own political agendas and strive to be non-judgmental about a reality that is not our own. 

John McAuliff
Executive Director
Fund for Reconciliation and Development

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[Excerpts follow.  For full document go to www.usccr.gov]

Voting Irregularities in Florida During the 2000 Presidential Election

From the Executive Summary
After carefully and fully examining all the evidence, the Commission found a strong basis for concluding that violations of Section 2 of the Voting Rights Act (VRA) occurred in Florida. The VRA was enacted in 1965 to enforce the 15th Amendments proscription against voting discrimination. It is aimed at both subtle and overt state action that has the effect of denying a citizen the right to vote because of his or her race. Although the VRA originally focused on enfranchising African Americans, the law has been amended several times to also include American Indians, Asian Americans, Alaskan Natives, and people of Spanish heritage. Additionally, the VRA includes a provision that recognizes the need for multilingual assistance for non-English speakers.

The VRA does not require intent to discriminate. Neither does it require proof of a conspiracy. Violations of the VRA can be established by evidence that the action or inaction of responsible officials and other evidence constitute a totality of the circumstancesthat denied citizens their right to vote. For example, if there are differences in voting procedures and voting technologies and the result of those differences is to advantage white voters and disadvantage minority voters, then the laws, the procedures, and the decisions that produced those results, viewed in the context of social and historical factors, can be discriminatory, and a violation of the VRA.

The report does not find that the highest officials of the state conspired to disenfranchise voters. Moreover, even if it was foreseeable that certain actions by officials led to voter disenfranchisement, this alone does not mean that intentional discrimination occurred. Instead, the report concludes that officials ignored the mounting evidence of rising voter registration rates in communities. The states highest officials responsible for ensuring efficiency, uniformity, and fairness in the election failed to fulfill their responsibilities and were subsequently unwilling to take responsibility.

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Disenfranchised Voters

Disenfranchised voters are individuals who are entitled to vote, want to vote, or attempt to vote, but who are deprived from either voting or having their votes counted. The most dramatic undercount in the Florida election was the uncast ballots of countless eligible voters who were wrongfully turned away from the polls. Statistical data, reinforced by credible anecdotal evidence, point to the widespread denial of voting rights. It is impossible to determine the extent of the disenfranchisement or to provide an adequate remedy to the persons whose voices were silenced by injustice, ineptitude, and inefficiency. However, careful analysis and some reasonable projections illustrate what happened in Florida.

The disenfranchisement of Floridas voters fell most harshly on the shoulders of black voters. The magnitude of the impact can be seen from any of several perspectives:

Statewide, based upon county-level statistical estimates, black voters were nearly 10 times more likely than nonblack voters to have their ballots rejected.
Estimates indicate that approximately 14.4 percent of Floridas black voters cast ballots that were rejected. This compares with approximately 1.6 percent of nonblack Florida voters who did not have their presidential votes counted.
Statistical analysis shows that the disparity in ballot spoilage ratesi.e., ballots cast but not countedbetween black and nonblack voters is not the result of education or literacy differences. This conclusion is supported by Governor Jeb Bushs Select Task Force on Election Procedures, Standards and Technology, which found that error rates stemming from uneducated, uninformed, or disinterested voters account for less than 1 percent of the problems.

Approximately 11 percent of Florida voters were African American; however, African Americans cast about 54 percent of the 180,000 spoiled ballots in Florida during the November 2000 election based on estimates derived from county-level data. These statewide estimates were corroborated by the results in several counties based on actual precinct data.

Poor counties, particularly those with large minority populations, were more likely to possess voting systems with higher spoilage rates than the more affluent counties with significant white populations. There is a high correlation between counties and precincts with a high percentage of African American voters and the percentage of spoiled ballots. For example:            

Nine of the 10 counties with the highest percentage of African American voters had spoilage rates above the Florida average.
Of the 10 counties with the highest percentage of white voters, only two counties had spoilage rates above the state average.

Gadsden County, with the highest rate of spoiled ballots, also had the highest percentage of African American voters.
Where precinct data were available, the data show that 83 of the 100 precincts with the highest numbers of spoiled ballots are black-majority precincts.

The magnitude of the disenfranchisement, including the disparity between black and nonblack voters, is supported by the testimony of witnesses at the Commissions hearings. These witnesses include local election officials, poll workers, ordinary voters, and activists. Among the sworn testimony:       

One potential voter waited hours at the polls because of a registration mix-up as poll workers attempted to call the office of the supervisor of elections. The call never got through and the individual was not allowed to vote. A former poll worker herself, she testified that she never saw anything like it during her 18 years as a poll worker.
A poll worker in Miami-Dade County with 15 years of experience testified, By far this was the worst election I have ever experienced. After that election, I decided I didnt want to work as a clerk anymore.
A poll worker in Palm Beach County testified that she had to use her personal cell phone to attempt to contact the election supervisors office. Despite trying all day, she only got through two or three times over the course of 12 hours.
A Broward County poll worker testified that in past elections it took about 10 minutes to get through to the elections supervisor. During the course of the November 2000 election, she turned away approximately 4050 potential voters because she could not access the supervisor of elections.
A Boynton Beach poll worker explained how his precinct workers turned away about 3050 potential voters because they could not get through to the supervisor of elections. He was successful only once during an eight-hour period.
Other persons testified about waiting in long lines only to be ultimately denied their right to vote.

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Purging Former Felons from the Voter Rolls

Individuals not legally entitled to vote should not be allowed to vote. Appropriate efforts to eliminate fraudulent voting strengthen the rights of legitimate voters. In fact, there are already laws in place in Florida that make it a crime to vote unlawfully. However, poorly designed efforts to eliminate fraud, as well as sloppy and irresponsible implementation of those efforts, disenfranchise legitimate voters and can be a violation of the VRA. Floridas overzealous efforts to purge voters from the rolls, conducted under the guise of an anti-fraud campaign, resulted in the inexcusable and patently unjust removal of disproportionate numbers of African American voters from Floridas voter registration rolls for the November 2000 election.

The purge system in Florida proceeded on the premise of guilty until proven innocent. 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 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. This purge process became known as list maintenance. Once on the list, the process places the burden on the eligible voter to justify remaining on the voter rolls. The ubiquitous errors and dearth of effective controls in the states list maintenance system resulted in the exclusion of voters lawfully entitled and properly registered to vote.

African American voters were placed on purge lists more often and more erroneously than Hispanic or white voters. For instance, in the states largest county, Miami-Dade, more than 65 percent of the names on the purge list were African Americans, who represented only 20.4 percent of the population. Hispanics were 57.4 percent of the population, but only 16.6 percent of the purge list; whites were 77.6 percent of the population but 17.6 percent of those purged.

Florida easily could have, and should have, done much more to protect the voting rights of African Americans and other Floridians. What should have been done include the following:

The governor, the secretary of state, or the director of the Division of Elections should have provided clear instructions to their subordinates on list maintenance strategies that would protect eligible voters from being erroneously purged from the voter registration rolls. Two key failings accounted for a large portion of the purge-related disenfranchisement:

The Division of Elections failed to recommend the same cautionary steps before the November 2000 presidential election that were taken before the 1998 election. At that time, supervisors of elections were asked to verify the exclusion lists with the greatest of care. They were asked to provide opportunities for persons to vote by affidavit ballot in those instances in which the voter made a credible challenge to his or her removal from the voter registration rolls.
Inadequate supervision of Division of Elections staff allowed irresponsible decisions to be made, including an official of the Division of Elections encouraging an error-laden strategy that resulted in the removal of a disproportionate number of eligible African American voters from the rolls.

State officials should have provided adequate training to supervisors of elections in purge verification procedures.

The purposeful use of erroneous listings to promote the states purging priorities and the permanent disenfranchisement of discharged felons raise important questions of fundamental fairness. The states aggressive purging laws, policies, and practices disproportionately affect African Americans, who are disproportionately charged, convicted, and sentenced in the criminal justice system. The Commission questions Floridas onerous and infrequently rendered clemency process. Former offenders who have paid their debt to society should have citizenship rights restored, which is already done in 36 states. Further, the report expresses disappointment that the recently enacted legislation failed to address the issue of automatic restoration of voting rights for former felons and asks that the governor recommend reform in this area of state law.


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POLICE PRESENCE AT OR NEAR POLLING SITES

Several Florida voters reported seeing Florida Highway Patrol (FHP) troopers in and around polling places. Troopers conducted an unauthorized vehicle checkpoint within a few miles of a polling place in a predominantly African American neighborhood. In another area, trooper vehicles were reportedly parked within sight of at least two polling places, which one resident characterized as unusual.The FHP reported that troopers only visited polling places to vote on Election Day. In light of the high voter turnout that was expected during the 2000 presidential election, particularly among communities of color that may have a strained relationship with law enforcement, some Floridians questioned the timing of and the motivation for the FHPs actions.

The Florida Election Code provides:

No person, whether acting under color of law or otherwise, shall intimidate, threaten, or coerce, or attempt to intimidate, threaten or coerce, any other person for the purpose of interfering with the right of such other person to vote or not to vote as that person may choose.[58]

The state of Florida also restricts the presence of law enforcement officers at polling places. Specifically, unless he or she enters the polling place to cast a ballot, no law enforcement officer may enter a polling place without the permission of the clerk or a majority of the inspectors.[59] The clerk or inspectors are required to make an affidavit for the arrest of any law enforcement officer who does not comply with the law.[60] Sheriffs also have a duty under Florida election law to exercise strict vigilance in the detection of any violations of the election laws and in apprehending the violators.[61]

Charles Hall, director of the Florida Highway Patrol, testified at the Commissions Tallahassee hearing. He explained that the history of increased checkpoints by the FHP began in the early 1980s, when the vehicle inspection laws were repealed. The FHP determined that the most effective way to inspect a large number of vehicles was through drivers license/faulty vehicle equipment checkpoints.[62] He also noted that he had no conversations with the office of the governor, the office of the attorney general, or the office of the secretary of state in preparation for the 2000 presidential election.

Colonel Hall admitted that on November 7, 2000, the FHP established a checkpoint on Oak Ridge Road in Southern Leon County between the hours of 10 a.m. and 11:30 a.m.[63] The demographic makeup of the precincts surrounding the Oak Ridge Road checkpoint are as follows: (1) Precinct 107 is 82 percent Caucasian and 13 percent African American; (2) Precinct 109 is 37 percent Caucasian and 57 percent African American; and (3) Precinct 110 is 70 percent Caucasian and 24 percent African American.[64] Approximately 150 vehicles were stopped as a result of the Oak Ridge Road checkpoint that day. According to FHP records, of the 16 citizens who received notices of faulty equipment, six (37 percent) were people of color.[65]

On the afternoon of Election Day, the FHP received notice of a complaint to the attorney generals office that FHP troopers had hindered people of color from arriving at polling places due to the Oak Ridge Road checkpoint. Colonel Hall indicated that the FHP was the first statewide law enforcement agency in the county to voluntarily begin collecting data concerning traffic stops in response to the racial profiling issue.[66] The racial breakdown of the 150 drivers stopped at that checkpoint on Election Day, however, is not available.

As a result of its investigation, the FHP found that some policy violations had occurred, but concluded that no citizen was unreasonably delayed or prohibited from voting as a result of the Oak Ridge Road checkpoint.[67] The policy violations cited by FHPs investigators included the fact that the checkpoint site was not on the monthly preapproved list and the media notification policy was not followed.[68] The investigators recommended counselingfor the sergeant in charge of the checkpoint and the district commander in charge of the media notification.[69]

Colonel Hall stated the FHP was very concerned about the perception people may have about what the patrol did that day.[70] The Commission heard testimony from voters in Tallahassee regarding their reaction to the FHPs actions on Election Day. Roberta Tucker, an African American woman and a longtime resident of Tallahassee, was driving along Oak Ridge Road on her way to vote. Before Ms. Tucker could reach her polling place, she was stopped at an FHP vehicle checkpoint conducted by approximately five white troopers. According to Ms. Tucker, the checkpoint was located at the only main road leading to her assigned polling place. One of the troopers approached Ms. Tuckers car, asked for her drivers license, and after looking at it, returned it to her and allowed her to proceed. Ms. Tucker considered the troopers actions to be suspiciousbecause nothing was checked, my lights, signals, or anything that [the state patrol] usually check.[71] She also recalled being curiousabout the checkpoint because she had never seen a checkpoint at this location. Ms. Tucker added that she felt intimidatedbecause it was an Election Day and it was a big election and there were only white officers there and like I said, they didnt ask me for anything else, so I was suspicious at that.[72]

In response to the allegations of voter intimidation surrounding this checkpoint, Colonel Hall stated that the checkpoint was properly conducted, and it was not anywhere near a polling facility, and I dont see how that could affect anybodys ability to vote.[73] He added that he was not reallysurprised to learn that a trooper may have asked for a drivers license and not registration. He explained that such an action could occur if vehicles had begun to back up.[74] Moreover, Colonel Hall stated he was disappointedthat the FHP could not speak with Ms. Tucker because she refused to cooperate with their investigation.[75] Ms. Tucker testified, however, that she reported the incident to her local NAACP and never returned the FHPs calls because I felt it was a civil rights issue . . . I felt like it was sort of discriminatory.[76]

When John Nelson, an African American resident of Jefferson County in Tallahassee, went to his assigned polling place, Precinct 6, to vote, he saw an unoccupied FHP vehicle parked across the street. He considered this to be unusualbecause he has voted a number of times at the same precinct, but was not accustomed to seeing a law enforcement vehicle at the precinct.[77] Moreover, Mr. Nelson stated he did not see any FHP troopers voting inside the precinct or leaving the precinct. Mr. Nelson added that his precinct is usually frequented by a large number of African American voters.[78] The FHP vehicles presence piqued Mr. Nelsons curiosity, and after voting, he drove to a precinct in the downtown area on North Washington Street and saw another FHP vehicle parked outside the precinct.[79]

In response to Mr. Nelsons allegations, Colonel Hall explained that those troopers only visited polling places to vote, and no parking tickets were written in the parking lots of voting precincts.[80] He added that law enforcement personnel use a service station close to the polling place, which may have explained their presence.[81] Furthermore, according to Colonel Hall, the FHP has no policy that specifically excludes polling places from any law enforcement function.[82] There is also no FHP policy against troopers wearing their uniforms or using their vehicles while voting at any election. At the request of supervisors of elections, the FHP has assisted in traffic control at polling places in the past, but the FHP received no such request for the November 2000 election.[83]

Florida Attorney General Robert A. Butterworth summarized his position on the use of law enforcement checkpoints on Election Day:

What we do know is that a checkpoint on that date, Election Day, was absolutely not necessary for law enforcement purposes and similar checkpoints should never again be implemented on Election Day . . . No law enforcement barriers should be placed on Floridas roadways when people are going to and from voting.[84]

Regardless of the motivation for the Florida Highway Patrols actions on Election Day, it appears that a number of voters perceived, at minimum, that they were negatively affected by the proximity of law enforcement officers to the precincts around Tallahassee.