Florida 2000 and Washington 2004

Not surprisingly, felon exclusions also showed significant racial bias. African Americans comprised over 65 percent of the 1999 and 2000 lists even though they represented only 11 percent of Florida's voting population (USCCR, 2001). Some estimates go as high as 88 percent (Hiaasen et al., 2001). Much of this is due to the fact that Florida's convicted felon population was, and continues to be, disproportionately black. The state's inmate population in 2000 was 54 percent black so even an accurate felon list would likely have been disproportionately African American (FDOC, 2005; USCCR, 2001). But statistical analyses of the 1999 and 2000 felon lists have shown that even after differences in racial felon demographics are accounted for with ecological corrections, a statistically significant racial bias remains, and most of it is likely to have originated from biases within the FDLE records provided to DBT in 2000 (Stuart, 2004).

There is more to the story however. Felon exclusions at the polls depended as much on the list's implementation as its contents. By Election Day the list was already notorious for its sloppy preparation and error rate and was used inconsistently. Some relied on it faithfully to purge voting lists. Others used it sparingly and a few discarded it altogether. Post Election Day surveys indicate that Republican counties were far more likely to rely on the list than their Democrat counterparts so that actual voter purge percentages were higher in the former. Of Florida's 67 counties, 43 used the list and 24 did not, with 80 percent of Republican election supervisors and 60 of Democrat supervisors saying they relied on the list to at least some extent. Only 2 counties reported using the list uncritically, purging every name listed (Stuart, 2004).

Due to its inconsistent use on Election Day, the felon list alone is not indicative of actual voter disenfranchisement. Many of those listed did not end up being removed from voter roles on Election Day. Many county supervisors weren't buying it, thank you. Even high purge counties in Republican strongholds retained many of those listed having independently verified the listings as erroneous. Actual disenfranchisement rates can only be determined by comparing the November 2000 felon list to the April 2001 Florida Central Voting File, along with FDE data and post Election Day surveys of how the list was used at the county level. Election supervisors in 19 counties were Republicans and those in 44 others were Democrats. The rest were non-partisan. In counties where supervisors reported using the list 33 percent of listed names remained on the legal voter rolls in April 2001. The corresponding figure in counties that did not use it was 74 percent. Statewide, the result was that 67 percent of listed voters were kept on the voter rolls in counties with Democratic supervisors, and 41 percent were in Republican counties, indicating that Republicans were more likely to use the list for felon purging than their Democratic counterparts (Stuart, 2004). Overall, 53 percent of those on the Election Day felon list were still in the Central Voting File in April 2001 giving an actual purge rate of 47 percent. Comparisons of the Central Voter File before and after November 2000 show comparable demographic breakouts by race for purged names from both Republican and Democrat majority counties, and across those that used the list and those that did not (Stuart, 2004). In addition, high purge counties show similar racial demographics of those purged and retained to low purge counties and even those that did not use the list. These estimates do not account for those who chose to walk away rather than vote or contest their listing--possibly a significant contribution to final disenfranchisement (USCCR, 2001; Mintz and Slevin, 2001; Stuart, 2004). But on the whole, the evidence suggests that racial bias was not a significant factor in Election Day use of the list.

The possibility that Database Technology slanted the list racially must also be considered. Many have argued that it likely was, citing DBT screening methods and data as well as questionable FDE directives during the list preparation (Palast, 2001; 2002; Lantigua, 2001). There is some support for this in that the company is known to have financial and political ties to Katherine Harris and Republican special interests, had been provided data from FDLE and Florida Motor Vehicle Department that included racial data, and had received instructions from FDE that had been confusingly worded and could have been interpreted as an injunction to use racial data (CSCCR, 2001; Palast, 2002). However error distributions in the list do not indicate that race was a factor in its preparation. Of the multiple data sources used by DBT for their compilations, some included racial data and where race is reported across all matched records discrepancies occur in up to some 6.7 percent of the total felon list (Stuart, 2004). This error rate is much higher than would be expected if DBT had been using racial data in their screening. Overall, the evidence suggests that racial biases in the felon list were aliased into it from the original data Florida provided to DBT.

This can be tested. FDLE criminal records and the Central Voter File both cover the general population (FDLE tracks those who don't have criminal records as well as those who do). If the errors in FDLE records are truly unbiased errors they will be random, and as such will they and the CVF should reflect the same racial demographics as the general population--14 percent black/ 86 percent white--because both are drawn from this "pool". If so, random draws of paired listings from each database should show racial mismatch rates in similar proportions. In fact, such a test has been done by Stuart (2004). He performed such a test using the year 2000 FDLE database and the April 2001 CVF (which will be no more than negligibly different than the January 2000 list as state demographics did not evolve significantly during the intervening period). He obtained racial mismatch rates that differed significantly from what would be expected and biased against blacks (Stuart, 2004). This provides strong evidence that the felon list was in fact racially biased, and that the biases were aliased into the list by racially biased Florida state criminal records.

The true accuracy of the Election Day felon list may never be known for certain. Various estimates based on state and county level voter data yield error rates ranging anywhere from 6 to 90 percent, with most falling in the 15 to 30 percent range (Wikipedia, 2005; USCCR, 2001; Kissell, 2002; Stuart, 2004). ChoicePoint has admitted that an error rate of at least 15 percent is likely and similar error rates have been obtained by some independent checks (Palast, 2001; Stuart, 2004). Stuart (2004) reports based on various measures that the most probable error rate is between 20 and 30 percent. By 2003 Florida had overhauled its entire felon purging process, and DBT (now ChoicePoint) is no longer used (the company has stated that they are "getting out of the business" of voter screening). Another company, Accenture, has since been hired to prepare the list using much tighter standards--exact name matches, Social Security Number, and more. At least one review of the 1999-2000 lists using these standards concluded that some 12,023 Floridians had been flagged as felons on Election Day 2000 that would not have been if the Bush/Gore runoff were held today (Smith, 2003). Yet even this list is known to have problems that may either disenfranchise non-felons or allow actual felons to slip through.

The felon list used on Election Day 2000 had a total of 42,322 names, but Choicepoint admitted after the election that they had generated listings of over 94,000 names. Post election comparisons of these records with county records and other data yield overall error rates of 15 to 30 percent, in good agreement with the more probable error rate estimates and what ChoicePoint has admitted to off the record and other estimates of the felon list itself (Stuart, 2004; Wikipedia, 2005; Kissel, 2002; Palast, 2002). Where the felon list was not used, independent checks were done using FDLE, existing county records, and other records, all of which were also known to have errors. The USCCR (2001) conducted their own study of these based on FDLE's checks of 13,190 of their own records and inquiries to 5,000 of those listed. They found error rates ranging from 19 percent assuming that all who responded to inquiries were actual felons (very conservative) to 50 percent assuming that the error rate among these 5000 respondents was representative of the list as a whole (very likely given the sample size and random record selection). Based on how these records were used on Election Day, along with some conservative assumptions regarding the effectiveness of screening efforts by county supervisors, leads to the felon vote and non-felon voter disenfranchisement counts due to these lists that were given above. Actual rates for each are not likely to be lower.

Racial Biases in Florida 2000

To no one's surprise, the fallout from the Florida 2000 election debacle fell disproportionately on poor and minority communities. Of the 175,000 ballots that were spoiled in the Florida 2000 presidential election, the majority were from minority voters, and 21 of the 25 precincts with the highest spoiled ballot rates were predominately African American and (Nickens, 2001; Lichtman, 2001; USCCR, 2001; NORC, 2001; Nickens, 2001; Bousquet, 2002). All 25 were heavily Democrat. Similar statistics hold at the county level. In all, counties that were predominately white by resident or voter demographics were far less likely to suffer above average ballot spoilage and other forms of unintentional voter disenfranchisement (USCCR, 2001; US House, 2001; Nickens, 2001; Wikipedia, 2005c; Balkin & Levinson, 2001). There are a number of possible reasons for this. One notable factor was the absence of precinct level error correction in many optical scan districts. Optical scan technologies allow for correction of voter errors when tabulation is done at the precinct level. Where available this gave voters an opportunity to check their votes and rectify any confusion or errors. Large numbers of voters on these systems were denied access to this safeguard. Where counts were done centrally this benefit was not available, and in at least 2 counties where the option was available county supervisors chose to shut it off anyway (Mintz & Slevin, 2001). The result was a significant increase in ballot spoilage unrelated to voter choice (US House, 2001). Overwhelmingly, lack of access to these safeguards occurred in precincts that were predominately minority and/or poor and overwhelmingly Democrat. They were almost universally available to affluent white Republican voters (USCCR, 2001; US House, 2001). Overall, voting irregularities including polling place problems, poorly designed ballots, lack of onsite voter support, and technology related issues fell disproportionately on minorities, particularly in Palm Beach, Miami-Dade, and Duval Counties (USCCR, 2001; Herron & Sekhon, 2003; Mebane, 2004; US House, 2001; Mintz and Keating, 2000; Bonner & Barbanel, 2000; Brady, 2000; St. Petersburg Times, 2001).

As we just saw, the year 2000 Florida felon list was also weighted against minorities. On a county level, African Americans constituted anywhere from 54 to 67 percent minority while comprising only 11 to 29 percent of the voting population (Palast, 2000; Wikipedia, 2005c). Statewide, African Americans were only 11 percent of Florida's total year 2000 voting population but they represented 44 percent of the race verified names on the list. By comparison, white representation was only slightly higher (51 percent) though they comprise 79 percent of the voting population. Much of this can likely be attributed to factors other than systemic of intentional racial biases. For instance Herron and Sekhon (2005) found that while per capita residual vote rates are significantly higher for African Americans than for whites, they are reduced by well over 50 percent when one or more black candidates are on the ballot, indicating that much of the disparity is due to intentional abstention. Other studies have shown that differences in technology also account for much of the discrepancy, even to the point that equipment updates alone may rectify most of the black/white residual vote rate differences nationwide (Tomz & Van Houweling, 2003). Racial demographic differences between the felon list and the general population are largely due to African Americans being overrepresented in Florida's convicted felon population. The state's year 2000 prison inmate population (54 percent of Florida's general population) was African American. This is much closer to the felon list racial breakdown than an overview of the general population would imply (FDOC, 2001; Stuart, 2004). This may itself be indicative of systemic racial biases driven by socio-economic or criminal justice factors. But even if true these are not be related to the year 2000 election directly and are beyond the scope of this study.

Even so, after these factors are accounted for significant racial biases remain. Florida's poor and minority populations were more likely to be unjustly denied their voting rights due to unintentional ballot spoilage, lack of onsite voter support, and even lack of access to polling places (Tomz & Van Houweling, 2003; USCCR, 2001; 2001b; Lichtman, 2001; 2001b; Klinker, 2001; Keating & Mintz, 2000; Kelly, 2002; Lantigua, 2001; Wikipedia, 2005; Palast, 2000; Pierre, 2001; Karlan, 2001; Bonner & Barbanel, 2000; St. Petersburg Times, 2001). The brunt of this fell on Democratic voters. With all forms of legitimate disenfranchisement considered, this almost certainly robbed Al Gore of the victory (NORC, 2001; Nickens, 2001; USCCR, 2001; 2001b; NORC, 2001; Keating, 2002).

Ironically, though errors in the felon list fell disproportionately on minority and Democrat voters, this may actually have worked to their advantage. It was noted earlier that there is no evidence that race was an influencing factor in Election Day purge rates in either Republican or Democrat counties. But Republican counties were more likely than Democrats to rely on the list making them more subject to its known errors. As a result blacks, who favored Al Gore by a wide margin, were more likely than whites to have been retained on the voting record than white and latino Bush voters (Stuart, 2004). Whether it was intentional or not, Katherine Harris' carelessness with the list appears to have backfired on her.

It's important to note that by themselves, the biases discussed so far do not imply intentional racism--only that there is a statistically significant correlation between minority status and/or poverty and voter disenfranchisement. This may happen for any of a number of reasons. Socio-economic factors are almost certainly a significant factor. Polling place problems like poor equipment, inadequate training of election workers, and polling place access are exacerbated by a lack of funding. Minority communities are typically much poorer than their white counterparts and have less access to the legal and political resources these communities and business interests enjoy (NRC, 1989; 1990; 2001; Imig, 1996). As such, their options for correcting such problems are limited, and this translates directly into systemic voter disenfranchisement. It's well known for instance that modern voting technologies like optical scan have significantly lower unintended ballot spoilage rates than punch-card (Caltech/MIT, 2001; Ansolabehere & Stewart, 2005; Brady, 2000). Poor and minority precincts are less likely to be able to afford systems like these. Increasing access to them could resolve much of the difference (Tomz & Van Houweling, 2003; US House, 2001). Problems like these will impact all voters in any given precinct regardless of race or personal choice.

Poverty and crime are also strongly correlated. Both are overrepresented in minority communities nationwide--again, largely due to socio-economic and political factors these communities have little ability to change (NRC, 1989; 1990; 2001; Imig, 1996). This alone is enough to explain most of the differences between the racial demographics of Florida's year 2000 voting population and felon list. Individual and community level racial biases probably contribute to this to at least some extent, but these are much more difficult to ascertain. However, it has already been shown that at racial biases remain after all other demographic factors are accounted for. Whether any of it is intentional or not, the fact remains that unintended ballot spoilage and voter disenfranchisement fell disproportionately on minorities and the 1965 Voting Rights Act requires that this be addressed. Many of the problems with Florida's election process were well known months in advance of the fall 2000 election--the year 2000 felon list being a case in point. The fact that little was done to rectify these problems ahead of time is cause enough for concern, but the way Florida's spoiled ballots were handled prior in the weeks following Election Day is downright disturbing. There was clear evidence of widespread unintended ballot spoilage in several Florida counties weeks before certification of the year 2000 presidential vote, and it's straightforward to show from demographic data and FDE records that most of the impact fell on predominately minority communities. Not only was no effort made to recover those votes, Harris and the Bush Campaign actively fought to prevent any attempt at doing so. It's difficult to see how this behavior could have been motivated by anything other than partisan politics.

Faced with growing evidence of irregularities and possible negligence, several government agencies and advocacy groups launched investigations into Florida's handling of the 2000 election, and the activities of Katherine Harris' office and the FDE in particular. On Election Day the U.S. Justice Department had received 11,000 complaints nationwide and over 2,600 of these were from Florida alone (Boyd, 2002). The Florida State Attorney General's office had received 3,600 complaints by phone or letter. Most related to ballot and polling place problems and denial of voting rights due to wrongful felon status or voter record problems. A few alleged intimidation and outright hostility. The DOJ investigated most of these throughout 2001. Special attention was paid to allegations of differential treatment and/or hostility toward minority voters, failure to comply with the National Voters Registration Act, failure to assist voters with limited English skills, failure to provide bilingual reference materials at polling locations, failure to provide access to disabled voters, negligence in the preparation of the felon list, and allegations of polling and canvassing place intimidation. In May of 2002 they closed all but 3 citing insufficient evidence of intentional misconduct, lack of jurisdiction over the crimes involved, or proof that appropriate rectification of the relevant systemic problems had already been made by the state (USDOJ, 2002; Boyd, 2002).

Lawsuits were filed however against Orange, Osceola, and Miami-Dade counties for violations of bilingual support. In June settlements were reached with Orange and Osceola Counties requiring them to meet requirements for full support of Spanish speaking voters (USDOJ, 2002). Overall, DOJ's investigation of Florida 2000 was widely criticized for not adequately addressing many of the most significant issues, particularly the state's handling of the felon list and the Miami violence during recounts (Ferrard, 2002; Smith & Allison, 2002). In 2004 the Government Accountability Office (USGAO) was asked to review DOJ's handling of Florida 2000 and verify that oversight of the Year 2004 election would be conducted differently (USGAO, 2004). It's noteworthy that while most of the Year 2000 DOJ cases in Florida were dropped, many were only because they were either outside of DOJ jurisdiction or because it was determined that county or state level reforms had already rectified the problems, not because the original complaints lacked merit (USGAO, 2004). The Miami and Broward riots were a case in point. The facts surrounding these riots were not disputed, including the assaults on Democrat elections officials. The cases were set aside only because the DOJ concluded that the issue was outside of their jurisdiction and should be left to local authorities (USDOJ, 2002; USGAO, 2004).

The U.S. House Committee on Governmental Reform conducted a separate investigation of how poverty and high minority population impacted ballot spoilage by congressional district during the 2000 presidential election in 20 states including Florida (US House, 2001). Among other things they found that in these states,

Lawsuits were filed however against Orange, Osceola, and Miami-Dade counties for violations of bilingual support. In June settlements were reached with Orange and Osceola Counties requiring them to meet requirements for full support of Spanish speaking voters (USDOJ, 2002). Overall, DOJ's investigation of Florida 2000 was widely criticized for not adequately addressing many of the most significant issues, particularly the state's handling of the felon list and the Miami violence during recounts (Ferrard, 2002; Smith & Allison, 2002). In 2004 the Government Accountability Office (USGAO) was asked to review DOJ's handling of Florida 2000 and verify that oversight of the Year 2004 election would be conducted differently (USGAO, 2004). It's noteworthy that while most of the Year 2000 DOJ cases in Florida were dropped, many were only because they were either outside of DOJ jurisdiction or because it was determined that county or state level reforms had already rectified the problems, not because the original complaints lacked merit (USGAO, 2004). The Miami and Broward riots were a case in point. The facts surrounding these riots were not disputed, including the assaults on Democrat elections officials. The cases were set aside only because the DOJ concluded that the issue was outside of their jurisdiction and should be left to local authorities (USDOJ, 2002; USGAO, 2004).

The U.S. House Committee on Governmental Reform conducted a separate investigation of how poverty and high minority population impacted ballot spoilage by congressional district during the 2000 presidential election in 20 states including Florida (US House, 2001). Among other things they found that in these states,

• Voters in low-income, high-minority Districts were over three times more likely to have their votes discarded than voters in affluent, low-minority districts.
• Along with the 1st District of Illinois, Florida's 17th District had the highest ballot spoilage rate in the nation with nearly one in every 12 ballots being discarded--over six times the national average for affluent, low-minority districts and over twenty times that of the best of these (the 3rd District of Minnesota).
• Better voting technology significantly narrowed the disparity in uncounted votes between low-income, high-minority districts and affluent, low-minority districts indicating that where these changes were not made by state and local authorities, poor and minority voters suffered higher unintentional ballot spoilage.
• Ballot spoilage rates were much lower in counties using optical scan methods where votes were tallied at the precinct level rather than centrally counted.
  
  (US House, 2001)

These ballot spoilage rates are much higher than historically observed rates of intentional abstention (Stuart, 2004) demonstrating systemic disenfranchisement of voters in poor and minority districts.