Voting Irregularities in Florida During the 2000 Presidential Election

Executive Summary

Addressing voting rights issues has been a core responsibility for the U.S. Commission on Civil Rights since the Commission was founded in 1957. The Commission has broad authority over voting rights. It has general jurisdiction to examine allegations regarding the right of U.S. citizens to vote and to have their votes counted. These allegations may include, but are not limited to, allegations of discrimination based on race, color, religion, sex, age, disability, or national origin.

Pursuant to its authority, and fulfilling its obligations, members of the Commission staff conducted a preliminary investigation and discovered widespread allegations of voter disenfranchisement in Florida in the 2000 presidential election. The Commissioners voted unanimously to conduct an extensive public investigation into these allegations of voting irregularities. Toward that end, the Commission held three days of hearings in Miami and Tallahassee and, using its subpoena powers, collected more than 30 hours of testimony from more than 100 witnesses—all taken under oath—and reviewed more than 118,000 pages of pertinent documents.

The Commission carefully selected its subpoenaed witnesses to ensure that it heard testimony on the wide range of issues that had come to light during its preliminary investigation. The Commission also acted to ensure that it heard a broad spectrum of views. It subpoenaed a cross section of witnesses, including Florida Governor Jeb Bush, Florida Secretary of State Katherine Harris, members of Governor Bush’s Select Task Force on Election Procedures, Standards and Technology, and Florida’s attorney general. The Commission staff’s research also led it to subpoena the state official responsible for oversight of motor voter registration, the general counsel for Florida’s Elections Commission, the director of the Division of Elections (part of the secretary of state’s office), the director of Florida’s Highway Patrol, and numerous local elections officials, county supervisors, poll workers, and local sheriffs. Additionally, the Commission subpoenaed a number of witnesses who had problems or who had first-hand knowledge of problems during the election, especially those on Election Day.

The Commission attempted to ensure that it heard all points of view in a second way. At each of the hearings, it invited the general public to testify once the formal sessions had concluded. There were no time limits on how long these sessions lasted, and they ended only after all witnesses had made their statements and each of the Commissioners present had ample opportunity to ask any and all questions of the witnesses. The witnesses’ statements and answers to Commissioners’ questions were under oath.

During the three days of hearings, numerous witnesses delivered heartrending accounts of the frustrations they experienced at the polls. Potential voters confronted inexperienced poll workers, antiquated machinery, inaccessible polling locations, and other barriers to being able to exercise their right to vote. The Commission’s findings make one thing clear: widespread voter disenfranchisement—not the dead-heat contest—was the extraordinary feature in the Florida election.

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 Amendment’s 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 circumstances” that 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 state’s highest officials responsible for ensuring efficiency, uniformity, and fairness in the election failed to fulfill their responsibilities and were subsequently unwilling to take responsibility.

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 Florida’s 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 Florida’s 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 rates—i.e., ballots cast but not counted—between black and nonblack voters is not the result of education or literacy differences. This conclusion is supported by Governor Jeb Bush’s 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 Commission’s 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 didn’t 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 supervisor’s 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 40–50 potential voters because she could not access the supervisor of elections.

A Boynton Beach poll worker explained how his precinct workers turned away about 30–50 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.

The Commission calls upon the attorney general of the United States to immediately begin the litigation process to determine liability under the VRA and appropriate remedies. The Commission is a fact-finding body, authorized to investigate allegations of voting discrimination, fraud, and other irregularities. However, it does not adjudicate violations of the law, hold trials, or determine civil or criminal liability. It is within the jurisdiction of the U.S. Department of Justice and Florida law enforcement officials to seek appropriate sanctions and remedies. In addition to calling on the attorney general to initiate the litigation process on this issue, the Commission requests this action on a number of other issues as well, such as Florida’s handling of its voter roll purge and its failure to accommodate voters with disabilities and limited English proficiency.

The Commission recommends that Florida retain knowledgeable experts to undertake a formal study to ascertain the reason for the racial disparities in vote rejection rates between white voters and persons of color. Once this is completed, the state should adopt and publicize procedures to eliminate this disparity. As a start, the state could identify and promote the “best practices” of counties in Florida or around the nation that performed well during the 2000 presidential election.

Missing Leadership

Florida’s governor insisted that he had no specific role in election operations and pointed to his secretary of state as the responsible official. After the election, however, the governor exercised leadership and responsibility in electoral matters in the commendable action of appointing a task force to make recommendations to fix the problems that occurred. The secretary of state, the state’s chief elections officer, denied any responsibility for the problems in the election, claiming only a “ministerial” role, her clear statutory obligations notwithstanding. Rather, she asserted that county election officials are responsible for the conduct of the election, describing her role in the policies and decisions affecting the actual voting operations as limited. However, her claims of no responsibility sharply contrast to her actions in the immediate aftermath of Election Day, when she asserted ultimate authority in determining the outcome of the vote count. On the local level, supervisors of elections in the counties that experienced the worst problems failed to prepare adequately and demand necessary resources.

This overall lack of leadership in protecting voting rights was largely responsible for the broad array of problems in Florida during the 2000 election. Furthermore, state officials ignored the pleas of some supervisors of elections for guidance and help. Especially at the highest levels, officials must take responsibility for leading on matters for which they have authority and, to the extent they do not have sole authority, to take the initiative for working with other key officials. Specific examples of the areas in which Florida officials need to improve are discussed in other parts of the Executive Summary and throughout the report. However, the need for key officials to exercise leadership in protecting the right to vote is imperative. This was not a responsibility that officials were willing to accept during the 2000 election.

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. Florida’s 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 Florida’s 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 state’s 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 state’s 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 state’s purging priorities and the permanent disenfranchisement of discharged felons raise important questions of fundamental fairness. The state’s 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 Florida’s 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.

Accessibility

Florida failed to provide adequate access to individuals with disabilities and to people who have limited English proficiency. Specific concerns pertaining to those with physical disabilities include:

Persons who rely on wheelchairs were forced to negotiate steps and unreachable polling booths or undergo humiliation by relying on others to lift them into the polling places to exercise their right to vote.

Some voters with visual impairments found that the precincts did not have proper equipment to assist them in reading their ballots and, therefore, they had to rely on others—often strangers—to cast their ballots, denying them their right to a secret ballot.

Others precincts were not equipped, or otherwise failed altogether, to accommodate potential voters with disabilities. As a result, individuals with disabilities were simply turned away, and therefore disenfranchised.

Individuals who were not proficient in English faced comparable barriers, despite federal requirements that language assistance be provided for non-English-proficient voters. Thus, a large number of limited-English-speaking voters were denied assistance at polling places, greatly increasing the likelihood of disenfranchisement. In some parts of Florida, Spanish-speaking voters did not receive bilingual assistance or bilingual ballots. Some of these counties are required to provide language assistance under the VRA. The failure to provide language assistance resulted in widespread voter disenfranchisement of an estimated several thousand Spanish-speaking voters in Florida.

Voter Education, Voter Registration, Training Poll Workers, and Election Day Problems

Many of the obstacles that caused voter disenfranchisement in the November 2000 election were the result of inadequate voter education and insufficient poll worker training. Moreover, counties were grossly unprepared for the large voter turnout and scrambled, often unsuccessfully, to meet the needs of voters on Election Day. Despite the early signs of a large influx of new voters, Florida state election officials did not respond with the appropriate array of measures to avoid the chaos that occurred. The lack of sufficient and comparable resources and the absence of guidance from top state officials on matters such as voter education and effective poll worker training contributed to the incidence of spoiled and uncast ballots. Florida must take steps to remedy this, including:

The secretary of state’s office and local election officials must ensure that they have sufficient resources to engage in effective voter education.

Local election officials who do not have sufficient resources for conducting a well-run election must have an adequate process to ensure they can obtain those resources.

There must be better coordination between the secretary of state’s office and local election officials. The Commission recommends that any future reforms include effective monitoring systems and adequate resources to ensure the meaningful implementation of the proposals.

Florida officials need to do a better job of consulting people with disabilities, individuals with limited English proficiency, and groups representing these individuals to ensure that voters with access problems have a full and fair opportunity to cast their ballots and to have them accurately counted.

As a result of these shortcomings, some potential voters never got to cast ballots. For example:

Some voters were barred from voting despite arriving at their polling places before closing time because poll workers did not understand the rule that if voters arrive before 7 p.m., they must be allowed to vote.

Adequate notice was not always given to voters when polling places were moved.

The failure to process in a timely manner motor voter registrants contributed to disenfranchising voters.

Aside from the lack of consistency and uniformity in election operations, many election officials failed to use affidavits under appropriate circumstances and instituted few procedures to confirm voter lists.

Poll workers were unable to reach central offices to certify voters.

Conclusion

The Commission found that the problems Florida had during the 2000 presidential election were serious and not isolated. In many cases, they were foreseeable and should have been prevented. The failure to do so resulted in an extraordinarily high and inexcusable level of disenfranchisement, with a significantly disproportionate impact on African American voters. The causes include the following: (1) a general failure of leadership from those with responsibility for ensuring elections are properly planned and executed; (2) inadequate resources for voter education, training of poll workers, and for Election Day trouble-shooting and problem solving; (3) inferior voting equipment and/or ballot design; (4) failure to anticipate and account for the expected high volumes of voters, including inexperienced voters; (5) a poorly designed and even more poorly executed purge system; and (6) a resource allocation system that often left poorer counties, which often were counties with the highest percentage of black voters, adversely affected.

Since the Commission began its hearings, Florida has enacted legislation to address many of the problems of the last election. The Commission publicly applauded this development as soon as it occurred, and even before the details of the legislative package were finalized. The Commission reiterates that Florida and its leaders deserve credit for the new election law.

However, the same leadership that effectively ensured passage of the recent legislation was missing in the years and months leading up to the November 2000 election. If the same level of leadership had been present, the Commission’s investigation reveals that most of the problems during the past election would have been prevented, and the dire consequences documented in this report could have been avoided.

Unfortunately, the recent legislation fails to address several other important issues, including accessibility for persons with disabilities, language assistance, and other barriers to voter participation. Additionally, the new law permits provisional balloting only under limited circumstances. While provisional voting is a positive step, the legislation is too restrictive to adequately address possible situations that might require its use. The provision should be amended to ensure additional voters are not disenfranchised.