Florida 2000 and Washington 2004

The U.S. Civil Rights Commission also investigated the Florida 2000 election and found numerous irregularities. Hearings were held in Tallahassee during January 2001 and in Miami during February, 2001. The commission reviewed some 30 hours of sworn testimony from over 100 witnesses and reviewed over 118,000 pages of documents. Their final report issued in June 2001 documented significant voter disenfranchisement including "restrictive statutory provisions, wide-ranging errors, and inadequate resources in the Florida election process [that] denied countless Floridians of their right to vote." They also found that disenfranchisement "fell most harshly on the shoulders of African Americans." They were also able to show that even after demographic disparities and intentional residual voting had been accounted for statistically significant racial disenfranchisement remained (Lichtman, 2001; 2001b). In summary they concluded that,

"[The] Commission is duty bound to report, without equivocation, that the analysis presented here supports a disturbing impression that Florida's reliance on a flawed voter exclusion list, combined with the state law placing the burden of removal from the list on the voter, had the result of denying African Americans the right to vote. This analysis also shows that the chance of being placed on this list in error is greater for African Americans. Similarly, the analysis shows a direct correlation between race and having one's vote discounted as a spoiled ballot. In other words, an African American's chance of having his or her vote rejected as a spoiled ballot was significantly greater than a white voter's. Based on the evidence presented to the Commission, there is a strong basis for concluding that section 2 of the VRA was violated."

(USCCR, 2001)

In January of 2001 the National Association for the Advancement of Colored People filed a class action lawsuit against Harris, FDE Director Clay Roberts, the Choicepoint Corporation, and several Florida county elections supervisors for their handling of the election. In their suit they cited failure to maintain adequate standards for reliable voting system hardware and software and to guarantee impartial counting of ballots for all Florida voters, failure to maintain compliance with the National Voter Registration Act of 1993, failure to provide adequate polling place support for minority and bilingual voters, gross negligence in the management of the Florida felon list and Central Voter File (NAACP, 2001). Support was provided throughout the trial by the Lawyers' Committee for Civil Rights under Law, People for the American Way, the Miami based law firm of Williams and Associates, the NAACP Legal Defense and Educational Fund, Inc., the Advancement Project, and the American Civil Liberties Union (ACLU). By September of 2002, settlements had been reached in the NAACP's favors with all defendants. As a result sweeping reforms of Florida's election system were implemented including the creation of a new position to monitor the state's compliance with the National Voter Registration Act, a full review of the felon list at much higher standards followed by the restoration of all wrongfully purged voters, and increased training for polling place workers on voter registration and polling place voter support (USCCR, 2002).

Florida 2000 and the Far-Right

As might be expected none of this went unchallenged. As of this writing it has been four and a half years since the Florida 2000 election. During this period thousands of investigative articles and editorials dismissed criticisms of the election as "political correctness" based entirely on "urban legends". No one was disenfranchised and no member of Florida’s state government, particularly Secretary of State Katherine Harris and Governor Jeb Bush was in any way negligent. Claims to the contrary, they insisted, were nothing more than sour grapes on the part of Democrats who were interfering with "the will of the people" and delaying America's right to the leadership of their chosen president. In preparation for this paper I conducted over 6 months of online and database literature searches of broadcast, print, and online publications including news media, books, cable news articles and editorials, and online discussion forums, during which I uncovered literally thousands of articles and commentaries excoriating Democrats and/or "liberals" for their criticisms of the Florida 2000 election. All came from Far-Right forums and think-tanks of which there were a few hundred total. Apart from denunciations of comments made by a small handful of Far-Left extremists, the bulk of these attacks were directed at the USCCR report on Florida 2000 (USCCR, 2001; 2001b) and concentrated on the commission's investigation of the felon list, the statistical analysis of ballot spoilage it relied on (Lichtman, 2001), and its conclusions regarding the extent of the disenfranchisement. Without exception, all were based on a handful of claims referencing one or more of the same four sources: year 2001 investigations of felon votes by the Palm Beach Post (Hiaasen et al., 2001; 2001b) and the Miami Herald (Merzer, 2001), the dissenting statement to the USCCR report by commissioners Abigail Thernstrom and Russell Redenbaugh (2001), and the U.S. Dept. of Justice investigation of civil rights violations in the election (Boyd, 2002). In every case the conclusions of these reports were simply repeated with no further examination of their content or methods. In what follows I'll examine these claims and the extent to which the four primary sources referenced above support them. Only a few representative examples from Far-Right forums will be provided, as any one of these is very much like the rest and virtually none offer any content beyond direct quotations of the four primary sources.

1)   By definition racial disenfranchisement involves a premeditated, and intentionally racist plot to rob minorities of their vote, and this is what Democrats and the USCCR accuse Florida and Bush of having done.

Even a casual reading of the USCCR report reveals that this is a straw man, yet it has been consistently and stridently repeated ever since it was published. Peter Kirsanow, himself a member of the Commission and a vocal critic of the report was typical of most when he claimed in a March 2004 editorial for the National Review that,

"Even before the last vote had been cast, activists had descended upon Florida, claiming a widespread conspiracy to disenfranchise black voters. Allegations that state troopers put up roadblocks and checkpoints to prevent blacks from voting were rampant. Dogs and hoses were allegedly used to drive black voters from the polls. Bull Connor's heirs had been unleashed - all at the direction of Governor Bush and his sidekick, Secretary of State Katherine Harris.

The U.S. Commission on Civil Rights investigated these allegations over a six-month period beginning in January 2001. Its 200-page majority report, Voting Irregularities in Florida During the 2000 Presidential Election, excoriates Florida's election officials for various acts of misfeasance. But the conclusions drawn by the report often bore little relationship to the facts contained therein. And media descriptions of the report did little to dispel the widespread belief among the black electorate that blacks had been systematically targeted for harassment, intimidation, and disenfranchisement....

The myth of a nefarious plot to thwart black voters from casting ballots is wholly unsupported by the evidence. Inconvenience, bureaucratic errors, and inefficiencies were indeed pervasive. But these problems don't rise to the level of invidious discrimination."   (His emphasis)

(Kirsanow, 2004)

It is true that some "activists" made accusations of deliberately discriminatory plots, but these were relatively few and certainly no less credible than their equally extreme Republican equivalents, particularly during the Gregoire/Rossi runoff. The real content of the attacks were against the USCCR report whose conclusions Kirsanow claims "often bore little relationship to the facts contained therein." Kirsanow depends heavily on the dissention of Thernstrom and Redenbaugh for his case, as does nearly every other Far-Right forum in America. They specifically accuse the USCCR report of making this claim in regard to the felon list.

"The report asserts that the use of a convicted felons list 'has a disparate impact on African Americans.' 'African Americans in Florida were more likely to find their names on the list than persons of other races.' Of course, because a higher proportion of blacks have been convicted of felonies in Florida, as elsewhere in the nation. But there is no evidence that the state targeted blacks in a discriminatory manner in constructing a purge list, or that the state made less of an effort to notify listed African Americans and to correct errors than it did with whites."

(Thernstrom & Redenbaugh, 2001)

Pennsylvania attorney Joe Kerry, formerly a Hinckley Institute of Politics Fellow in the Bush Sr. Administration, extends this argument to ballot spoilage with arguments based on the subtleties of intent and an unusually careless attempt at statistical inference. In August 2004 he published an editorial at the web site of Far-Right talk-show host Glenn Beck that has since been widely circulated on the Internet. Repeating Thernstrom and Redenbaugh almost word-for-word he states that,

"The [USCCR] investigation found no credible evidence that any Floridians were INTENTIONALLY denied the right to vote in the 2000 election. The Commission did find, however, that many Florida voters, irrespective of race, spoiled their ballots by MISTAKE. But voter error is not the same thing as 'disenfranchisement' and it certainly isn't evidence of any conspiracy or plot to steal or suppress black votes....

According to the Commission's report, some 180,000 Florida voters in the 2000 election, 2.9 percent of the total, turned in ballots that did not indicate a valid choice for a presidential candidate and thus could not be counted in that race. 59% of these ballots were "overvotes". The chief problem in Florida was voters who cast a ballot for more than one candidate for the same office (59%), and the second most common problem was voters who registered no choice at all. (35%). Ballots were 'rejected,' in short, because it was impossible to determine which candidate-if any-voters meant to choose for president.

No statistical significant evidence was presented of political/race based ballot disqualification. 94% of Florida voters simply voted for too many presidential candidates or none at all." (His emphasis)

(Kerry, 2004)

Kirsanow and Kerry wisely concede that minorities suffered disproportionately from Florida's year 2000 problems. But apart from voter error (a claim to which we will return shortly), they argue that this is a non-issue because none of it was intentional. This is of course, ludicrous. Imagine that a large number of brake failures in a certain model year of automobile led to numerous deaths and injuries soon after it went to market, and upon investigation it was discovered that the manufacturer had made serious compromises in the design and quality control of that vehicle's brake systems to cut costs. According to Kirsanow and Kerry's logic the manufacturer would not be responsible in any way for this because they hadn't purposely "intended" to hurt anyone. There isn't a court anywhere in the world that would buy an argument like this.

Kerry's comments are particularly revealing. In his last paragraph he informs us that "94% of Florida voters" cast undervoted or overvoted ballots that did not identify a presidential choice. Surely he doesn't believe (I hope) that of Florida's 5.8 million year 2000 voters, 5.4 million cast overvoted or undervoted ballots. Giving him the benefit of a doubt, he appears to have meant that 94 percent (59 + 35) of Florida's spoiled ballots did not identify a presidential choice. In fairness to him, typos happen to all of us (I've made more than my share). But as of this writing (July 17, 2005) it's been almost a year since this editorial was first published, and it's still at Glenn Beck's web site (www.glennbeck.com) uncorrected, and being circulated typo and all in numerous Far-Right forums nationwide. The fact that an error this obvious can go uncorrected for over a year in numerous conservative forums nationwide--one that even 20 seconds worth of proofreading would have caught—speaks volumes about the thoroughness and professionalism involved.

Ironically, even the intended statement is incorrect. We've already seen that a significant fraction of Florida's spoiled ballots contained clear indications of an intended choice and "statistical significant (I think he meant to say statistically significant) evidence of political/race based ballot disqualification" (). Rather than investigate any of this properly, Kerry merely repeats Thernstrom and Redenbaugh's sweeping generalization of these ballots as ambiguous, and unlike them the NORC report (2001) was available to him had he bothered with investigating any of this himself.

Either way the point is moot. The USCCR reviewed Florida 2000 under the guidelines of Section 2 of the Voting Rights Act (VRA). That Act targets subtle and unintended racial biases as well as intentional discrimination. It states that discrimination may be established using results tests and that under these tests there is no requirement for proof of discriminatory intent. It also describes factors to be considered in determining whether discrimination has occurred (U.S. Congress, 1981; U.S. Senate, 1982). Under these guidelines the USCCR did not base any of their findings on evidence of premeditated intent. In fact, the executive summary at the beginning of their report states that,

"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." (My emphasis)

(USCCR, 2001)

So the report explicitly states that no evidence of discriminatory intent was found. Instead, it claims that election officials were negligent in their maintenance of efficiency, uniformity and fairness in the election, and the consequences of this fell disproportionately on minorities. But it discusses what constitutes actionable disenfranchisement within the guidelines of the Voting Rights Act. Discussing the 1982 amendments to the act the reports states that,

"The 1982 amendments do not preclude plaintiffs from introducing evidence of discriminatory intent, but rather properly afford plaintiffs the option of demonstrating that the challenged electoral procedure has the effect of denying a protected class equal access to the political process and electing representatives of their choice.

In its amendment of section 2, Congress reaffirmed that discrimination could be established using a results test and that under this test there was no requirement to prove discriminatory intent. Congress described factors to be considered in determining whether, under the results test, discrimination has occurred. The results test, also known as the 'totality of the circumstances' test, only requires the plaintiff to prove that a challenged election process results in a denial or an abridgment of the right to vote. This amendment restored previous Supreme Court precedent, allowing violations of section 2 to be established by demonstrating abridgement of voting rights by totality of the circumstances or intentional discrimination.

Under the VRA, as amended, a violation of section 2 may be established by either showing intentional discrimination or that the totality of the circumstances 'results' in a section 2 violation. Evidence of discriminatory intent is not limited to direct evidence; intent may be demonstrated by the impact of the challenged action on minorities, the ability to foresee that impact, the historical background of the challenged action, the sequence of events leading up to the challenged action, and the legislative history. 'The essence of a Section 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by African American and white voters to elect their preferred representatives.' A person attempting to prove a violation of the VRA "must either prove [discriminatory] intent or alternatively, must show that the challenged system or practice, in the context of all the circumstances in the jurisdiction in question, results in minorities being denied equal access to the political process." (My emphasis)

(USCCR, 2001)

It’s difficult to see how the USCCR could have been more explicit than this. Kirsanow and Kerry dutifully report the committee's conclusions regarding intentional discrimination, but carefully avoid any discussion of the basis for pursuing all discriminatory effect within the jurisdiction of county and state level offices. From the looks of it, the "nefarious conspiracy" argument is being advanced only because it provides a convenient excuse for avoiding the larger issue of voter disenfranchisement—and the evidence supporting it.

2)   The Felon List was Unbiased and Too Lenient.

In September of 2004 the Wall Street Journal published an editorial that was typical of how Far-Right forums attempted to deflect claims of racial bias in the Florida 2000 felon list. These, they argued, were "fanciful at best".

"[The] idea that racial animus rather than all-around incompetence produced higher spoilage rates for blacks, or accounted for their misplacement on the infamously inaccurate "felon purge list," is fanciful at best.... And as for the [list], the Miami Herald found that whites were twice as likely to be incorrectly placed on the list as blacks."

(Wall Street Journal, 2004)

Kirsanow also defends this claim. In an October 2003 commentary for the National Review he informs us that,

"Much has been made of the "felon purge list," i.e., a list of those individuals who, under Florida law, were to be barred from voting due to felony convictions....

The list was inaccurate; it included people who shouldn't have been on it. Thus, the myth holds that the purge list was somehow a tool to deny blacks the right to vote.

But facts are stubborn things. Whites were actually twice as likely as blacks to be erroneously placed on the list. In fact, an exhaustive study by the Miami Herald concluded that 'the biggest problem with the felon list was not that it prevented eligible voters from casting ballots, but that it ended up allowing ineligible voters to cast a ballot.' According to the Palm Beach Post, more than 6,500 ineligible felons voted."

(Kirsanow, 2003)