How the GOP Gamed the System in Florida
On July 10, 2000, in the midst of the presidential campaign, GOP candidate George W. Bush addressed the national NAACP convention in Baltimore and denounced such "new forms of racism" as racial profiling and redlining. But even as he spoke, a very old, traditional form of racism was being implemented in Florida: the disfranchisement of eligible voters, especially blacks, which helped Bush win that state and the election.
Despite one well-reported incident involving a police checkpoint near a polling place, disfranchisement 2000-style did not depend on intimidation. Cattle prods and attack dogs, the legacy of former Birmingham Commissioner of Public Safety Bull Connor, were nowhere in evidence. Instead, Florida state elections officials and hired data crunchers used computers to target thousands of voters, many of whom were then purged from the voter rolls without reason. And many thousands more saw their votes thrown out as a result of error-prone voting machines and poorly designed ballots, the results of an underfunded and chaotic electoral system.
In all, some 200,000 Floridians were either not permitted to vote in the November 7 election on questionable or possibly illegal grounds, or saw their ballots discarded and not counted. A large and disproportionate number were black.
Florida's black leaders, already engaged in an emotional, bitter confrontation with Governor Jeb Bush, George W. Bush's brother, had mounted an unprecedented voter registration effort to defeat candidates they saw as political enemies. According to exit polls, 65 percent more black voters went to the polls in Florida in 2000 than in the 1996 election, and of the votes that were counted, blacks went at least 9 to 1 for Democrat Al Gore. But the votes that were tallied were not enough. After the US Supreme Court cut off ballot recounts, Bush had a margin of 537 votes out of more than 5.8 million cast. The closeness of the final count made all votes not cast and not counted that much more crucial. (As one example, the Palm Beach Post recently reported that Gore lost 6,600 votes in Palm Beach County alone because of the infamous butterfly ballot, more than ten times Bush's margin of victory.)
State officials deny racist intent in their actions, but the US Commission on Civil Rights conducted two hearings in Florida in January and February to determine why so many Floridians were denied the right to vote. In a preliminary assessment, the commission noted that the Voting Rights Act of 1965 "was aimed at subtle, as well as obvious, state regulation and practices" that could deny citizens the right to vote because of their race. The commission said it found evidence of "prohibited discrimination" in Florida's polling process. A final report is due this summer.
The NAACP and others filed suit on January 10 against Secretary of State Katherine Harris, who was a co-chair of the campaign and is responsible for the conduct of fair elections in Florida, and other Florida officials, charging them with violating the Fourteenth Amendment and the 1965 Voting Rights Act. The suit demands many reforms of the Florida electoral system.
But no future remedy can undo what happened in 2000, only a portion of which has been revealed through the hearing, the suit and media reports. "They done got us," said civil rights veteran Elmore Bryant of Marianna, Florida, referring to the GOP-mandated purge of voter rolls. "They had themselves a game and we had no game. The old leaders in the '60s wouldn't have let this happen. We woulda had us a game too, but we didn't. They done got us good."
The stage for the November 7 election and the effort by black leaders to defeat George W. Bush was set during Jeb Bush's initial and unsuccessful run for governor in 1994. During a debate in Tampa on July 27 of that year, Bush was asked by a journalist what he would do for Florida's black community if he was elected. His answer was both concise and prophetic. "Probably nothing," he said, explaining that he favored what he called "equality of opportunity" for all Floridians. Four years later, when he ran again, he avoided such candor. But although he won, he was backed by only 10 percent of the state's blacks, according to exit polls. In his first year in office, Bush then eliminated most affirmative action programs benefiting minorities and women, substituting a plan he called the One Florida Initiative. That program ended guaranteed minority and female set-asides in state hiring, in the awarding of state contracts (only 1 percent of state spending for merchandise and services went to minority-owned firms as it was, according to the Miami Herald) and in university admissions. Polls had shown that such a move would be popular with the white majority in the state. Black and feminist leaders called it a betrayal.
After the Governor refused to meet with them to discuss his policy, two black state legislators staged a twenty-hour sit-in at Bush's suite of offices. At one point Bush was overheard saying, "Kick their asses out of here," although an aide later claimed he was referring to journalists. Bush apologized to the public for his language but not his policy. The sit-in attracted statewide support from blacks, women's groups and other Floridians, forcing Bush to accept a series of public hearings. Thousands of citizens crowded those sessions and other demonstrations, verbally bludgeoning both the One Florida Initiative and Bush. Black student movements, dormant for years, were resurrected. Even members of his own party called Bush's tactics highhanded. But with an overwhelming GOP majority in the legislature and conservative Democrats eager to help, Bush pushed through his One Florida plan.
State Senator Kendrick Meek, one of the two sit-in heroes, labeled the moment the lowest point in Florida racial relations in the past thirty-five years. He and other African-Americans called for a statewide voter registration campaign to defeat their political enemies at all levels, starting with the Governor's brother. "We didn't need George W. doing to the whole nation what Jeb was doing to Florida," said Elmore Bryant.
In September 1999, the NAACP pledged $9 million to a nationwide voter registration campaign, and $400,000 was eventually earmarked for Florida, the most important battleground of all. Black leaders barnstormed the state registering voters, an effort that reminded many of the 1960s civil rights movement. "There was a tremendous spirit just then, like the old days," said Vivian Kelly of Gadsden County, another longtime civil rights campaigner.
Thus the stage was set for Election Day 2000, when the black vote went from 10 percent of the state total in 1996 to 16 percent, according to exit polls. Some 300,000 more blacks voted than four years before--and that only includes those who were actually allowed to vote. But while black Floridians were registering in unprecedented numbers, state officials were busy removing other blacks from the voting rolls. After a 1997 Miami mayoral election, the Miami Herald discovered that 105 people had voted despite having felonies on their records and having never received clemency, making them ineligible under Florida law. The article, part of a series that helped overturn that election because of voter fraud, also revealed that of the total number of felons found on the county voter rolls, 71 percent were registered Democrats.
Within weeks, the GOP-controlled state legislature passed a sweeping voter fraud bill despite an unprecedented effort by county elections supervisors to block it. The measure would unfairly thwart citizens from voting instead of encouraging voter turnout, said the supervisors, who actually conduct elections. Among other provisions, the bill called for the strict enforcement of an 1868 law that took the vote away from all former prisoners who had not received clemency, no matter how long they had been out of prison and out of trouble. Florida is one of only fourteen states that do not automatically restore civil rights to former prisoners who have completed their sentence and parole. Florida's former prisoners must petition the Office of Executive Clemency for the restoration of their civil rights, and the final decision is made by the governor and three other members of the Cabinet, all of whom are partisan politicians. Before the voter fraud bill passed, a black Democratic legislator proposed another bill, to grant automatic restoration of rights after completion of sentence and parole, but it never made it out of committee.
That lawmaker had good reason to worry. Blacks would bear the brunt of this voter purge. While the population of Florida is about 15 percent black, the population of Florida prisons is 54 percent black. Once released and having completed parole, former prisoners have often found clemency difficult if not impossible to achieve. According to literature provided to former prisoners by the state, individuals can be denied the restoration of their civil rights for many reasons, including the possibility that they owe child support (which a father coming out of jail probably does), a history of drug or alcohol problems and even traffic offenses.
Although the state claims the process of applying for clemency was simplified somewhat in 2000, only 927 former prisoners regained their civil rights last year, less than one-half of 1 percent of the former prisoners who had finished their sentences and parole. State Senator Meek, who has a large number of blacks in his constituency, says that of 175 former prisoners whom he has helped apply for clemency in the past decade, only nine have been approved.
According to the Washington-based Sentencing Project, a nonprofit organization specializing in corrections issues, and Human Rights Watch, Florida is currently home to more disfranchised voters than any other state. The Florida Department of Law Enforcement admits that 187,455 former prisoners in Florida have been disfranchised because of felony convictions on their records. The state confirms that 17 percent of Florida's black voting-age males have been disfranchised. In addition, according to the Justice Department, Florida leads the nation in the rate at which juveniles are charged with felonies, meaning those youths lose the right to vote before they are ever able to exercise it.
"And every year the Florida legislature is trying to make more crimes felonies," says State Senator Daryl Jones of Miami. "Why? So they can eliminate more people from the voter rolls." In 2000, according to Jones, a bill was proposed by a GOP legislator that would have increased from 365 to 366 days the jail sentence for individuals who take two welfare checks after becoming employed. The bill was eventually defeated. "What does one more day accomplish?" asks Jones. "It makes it a felony, and you take one more person off the voter rolls. That's what. It's been going on in Tallahassee for years."
By April 1998 the laws and political will were in place to perform a definitive purge of voter rolls to remove people who had died, had been judged mentally unstable, had moved and were registered in more than one county or state--and, most significantly, had ever been convicted of a felony but had not had their rights restored by Florida's partisan Cabinet members.
The first list was produced by a Tallahassee firm, Professional Analytical Services and Systems, using state databases. The results proved to be full of errors. For one thing, the Florida Office of Executive Clemency had no database, so former prisoners who had won their rights back were often included on the list of felons barred from voting. On August 18, 1998, then-director of the Division of Elections Ethel Baxter, citing confidentiality concerns, ordered county elections supervisors not to release that list to the press, which almost certainly would have discovered the gross number of errors long before Election Day, and especially the impact on the black vote.
In November of that year, the state contracted with Database Technologies (DBT) of Boca Raton, which has since merged with ChoicePoint of Atlanta. DBT eventually produced two lists--one in 1999 and the second in 2000--that included a total of 174,583 alleged felons. Later, when lists of individuals who had received clemency were produced, that number was reduced, although only by a small percentage. The majority of the people on those lists were African-Americans. DBT employees didn't always appreciate the seriousness of their task. One e-mail between two such employees referred to the former prisoners they were enumerating as the "dirtbags of the nation." When DBT started to receive complaints, sometimes directly from voters who unjustly had had their right to vote challenged, product manager Marlene Thorogood seemed surprised. "There are just some people that feel when you mess with their 'right to vote' your [sic] messing with their life," she said in an e-mail.
And complaints did come in. More than a year before Election Day 2000, it was clear the lists contained thousands of names of Florida citizens who had never been convicted of felonies--or of any crime, for that matter. In some instances, the concentration of errors was absurd: Only seven people work in the Monroe County elections supervisors' office in Key West. One of those employees, along with the husband of another employee and the father of Supervisor Harry Sawyer, were all erroneously listed as having felony convictions. "And my father is a retired Sheriff's Department captain," said Sawyer. The lists were also absurdly sloppy: Some conviction dates were in the future. Angry voters by the thousands eventually complained to county supervisors of elections, who in turn complained to Tallahassee.
The point man for the state in compiling those lists was Emmett "Bucky" Mitchell IV, an assistant general counsel to the Florida Division of Elections, who within a week of the November 2000 election was given a senior attorney's job in the state Department of Education. In an interview with The Nation, Mitchell claimed he had exercised restraint in producing the purge lists. "The division always had the policy to err on the side of caution," he insisted. But reports from county supervisors, correspondence between state officials and DBT employees, and testimony before the Civil Rights Commission tell a completely different story.
By March 1999, four months after contracts had been signed, DBT officials already had doubts about the state's ground rules. According to testimony by ChoicePoint/DBT vice president George Bruder, a person could be included on the list if his or her name, date of birth and/or Social Security number closely approximated that of a known felon. In other words, in a state with 16 million people, where many individuals share approximate names and also dates of birth, exact matches were not necessary.
In March of 1999, Thorogood expressed her doubts about those guidelines in an e-mail to Mitchell: "Unfortunately, programming in this fashion may supply you with false positives," she said, referring to names of people who did not belong on the felons list. "This seems to be the approach you would prefer to choose, rather than miss any positive true matches." Mitchell made the state's position clear in his answer to Thorogood on March 23: "Obviously, we want to capture more names that possibly aren't matches and let the supervisors [of elections] make a final determination rather than exclude certain matches altogether," Mitchell wrote. In other words, the lists were designed to include people who were not felons, some of whom eventually fell through the cracks and were unfairly purged.
When supervisors began to complain about errors, Bruder said his company told the Divison of Elections that they were caused by the loose parameters set by the search, but Mitchell ordered no substantial change in the parameters despite recommendations by DBT. "After submitting them they were not acted on by the state," said James Lee, a spokesman for ChoicePoint/DBT. In fact, the next year, as the presidential election approached, the state asked that the parameters be loosened, according to Lee. Instead of 90 percent of the letters in the name of a person on the purge list having to match with those of someone on the voting rolls, the standard was loosened to 80 percent. Although such matches were often eliminated when Social Security numbers or other data were also checked, such information was not always available, and more innocent individuals were included on the felons list.
The state officials were not content to include only former Florida prisoners. They also asked DBT to use its national databases to provide the names of felons from other states who might have moved to Florida and registered. But some of those came from the thirty-six states that have automatic restoration of civil rights, including the right to vote. More than 2,000 such individuals were included on the state's purge lists. Following press and public attention to the situation after the election, the state quietly changed its policy [see Gregory Palast, "Florida's 'Disappeared Voters,'" February 5].
In May 2000 the process went totally awry. Some 8,000 names, mostly those of former Texas prisoners who were included on a DBT list, turned out never to have been convicted of more than a misdemeanor. The new elections director, Clay Roberts, later claimed the error had been caught in time and that none of those individuals lost their rights. But Mitchell admitted that other lists of alleged felons supplied to DBT by the Florida Department of Law Enforcement also contained errors, among them the inclusion of many people convicted only of misdemeanors.
In time, an appeals process was instituted, but in some cases it required ordinary citizens to be fingerprinted in order to prove they weren't the felons they were accused of being. In the end, out of 4,847 people who appealed, 2,430 were judged not to be convicted felons. As Civil Rights Commission attorney Bernard Quarterman put it during testimony in Miami on February 16, "They were guilty until proven innocent."
Elections supervisors in the counties, who had never been consulted about how to assemble the purge lists, battled with the mandate from Tallahassee. "Our experience with the lists is that they are frequently erroneous," Leon County Elections Supervisor Ion Sancho testified before the Civil Rights Commission in Tallahassee. Sancho said he was sent one list with 690 names on it but after detailed checking by his office only thirty-three people were sent letters asking them to prove their eligibility to vote.
In its assurances to the state before contracts were signed, DBT promised, on August 14, 1998, that the lists would be checked, including "telephonic verification of random records." But this procedure was later omitted from contracts, and the state never insisted that it be done. In fact, during one meeting between Mitchell and county supervisors in 1999, Mitchell specifically told supervisors not to try to contact listed individuals by phone, but only by the legally required route of the mails. Many would-be voters later said they had never received notification. "Mr. Mitchell said we shouldn't call people on the phone, we should send letters," said Linda Howell, supervisor for Madison County in north Florida. "The best and fastest way to check these matters was by phone, personal contact, but he didn't want that." She added, "We shouldn't have had to do any of this. Elections supervisors are not investigators, and we don't have investigators. It wasn't our responsibility at all."
In his interview with The Nation, Mitchell offered this rationale for the loose standards used in assembling the purge lists: "Just as some people might have been removed from the list who shouldn't have been, some voted who shouldn't have." In other words, because an ineligible person may have voted somewhere else, it was acceptable to deny a legitimate voter the right to vote. Mitchell said the loose parameters employed to create the purge list were approved by former head of the Division of Elections Ethel Baxter, after consultation with Katherine Harris. Neither Baxter nor Harris returned phone calls requesting comment.
The lists targeted black voters in extremely disproportionate numbers. In Hillsborough County, which includes Tampa, where only 15 percent of voters are black, 54 percent of the names on the purge list were African-Americans. In Miami-Dade, where blacks make up 20 percent of the population, a list of 5,762 people contained the names of 3,794 blacks, or 66 percent. In Leon County, which includes Tallahassee, the state capital, 29 percent of the people are black, but 55 percent of the purge list names were African-Americans.
In one Leon County case, the Rev. Willie David Whiting, a black pastor from Tallahassee, arrived at his polling place to find himself listed as a convicted felon; he was refused the right to vote despite never having spent a day in jail. He says he had never received notification of his disfranchisement. It turned out that he had been confused with a Willie J. Whiting, whose birthdate was two days away from his own, and was considered a match due to a "derived" or approximate name and birthdate. "I felt like I was slingshotted back into slavery," Whiting testified to the civil rights panel. He said he was forced to consider possible motives. "Does someone have a formula for stealing this election?" he says he asked himself.
The Division of Elections and DBT were also sharing their information, some of it false, with law enforcement agencies. Whiting said he was relieved he had not been stopped "by the wrong policeman" during the time he was incorrectly listed as a convicted felon. "Who knows what would have happened?" A Jacksonville resident, Richard Haywood, whose one felony marijuana conviction in 1972 had been expunged from his record, suddenly found himself not only on a purge list but also with the record of his conviction released by the state to a school to which he had applied for student aid. "I complied with the law and my record was expunged," said Haywood. "What they did was violate the law by releasing that information, and they messed with my life." Madison County Supervisor Howell agreed. "They were not taking their job seriously," she said, referring to state officials. "That could destroy a person's life."
It is impossible to know how many voters were unfairly kept away from the voting booth because of the purge. Votes not cast are not tallied. Some former prisoners who were notified they were on the purge lists expressed interest in applying for clemency and voting, but they were often faced with daunting amounts of paperwork. For example, if they had been convicted in a different county, they had to write away for certified copies of court records, some of them decades old, and then apply to Tallahassee. "Some of them had convictions in the 1940s and 1950s and had been voting for years," said Larry Roxby, deputy elections supervisor in Bay County.
Meanwhile, according to Roxby, the Office of Executive Clemency in Tallahassee had a backlog of six months to a year. "I'd say I had about sixty such people come to me over the past three years, and only about three of them ever got their clemency," said Roxby. "Seven or eight out of ten were blacks." Other supervisors reported similar instances of former prisoners who had been active voters for years but who were discouraged by the suddenly enforced clemency process. State law enforcement officials later said that based on past voting records, only about 10 percent of former prisoners might be expected to vote. In a highly contested election such as the one in 2000, that could be expected to increase. But even if one uses the state's own figures, out of 187,000 former prisoners who had completed parole but had not received clemency, close to 20,000 might have voted if they'd been permitted. State statisticians say, based on race and economic factors, that group could be expected to vote Democratic 75 percent of the time.
But if purging was the most egregious form of disfranchisement--and possibly the one deliberate attempt to reduce the Democratic vote--it wasn't the only cause of the reduced vote total. An underfunded elections system resulted in poor equipment being used in many counties, and ill-trained and sometimes ill-informed poll workers also kept voters from casting their ballots.
For months leading up to November 7, county supervisors had been sending lists of newly registered voters to Tallahassee, and it was clear that a large turnout could be expected, especially in the black community. But Secretary of State Harris and Division of Elections chief Clay Roberts testified that they never discussed that fact and the problems that might arise. The result was chaos at many polling places. Many eligible voters were turned away. Testimony by poll workers before the Civil Rights Commission, before an NAACP hearing in Miami on November 11 and interviews by The Nation make it clear that such incidents occurred in every corner of the state.
Some poll workers said dozens of people were not allowed to vote at their polling places, while others remembered only a few. But with some 6,000 polling places in the state, the numbers are significant. The NAACP suit cites voters who registered in plenty of time for the November 7 election, but whose names were never placed on the rolls and who were not allowed to vote. Some names of residents who took advantage of motor-voter legislation and registered at the same time that they obtained licenses from the Department of Motor Vehicles were not on voter rolls. Attempts to reach the offices of supervisors to clarify voters' eligibility were foiled by clogged phone lines in many of Florida's sixty-seven counties. Supervisors in some counties, obviously suspecting that such problems might occur, provided laptop computers with which poll workers could check central voter rolls. But only a small percentage of precincts received the laptops, and almost none were used in precincts that were majority black. In Miami-Dade, for example, out of eighteen laptops, only one was used in a black precinct.
Some poll workers, faced with an unprecedented tide of complaints, did their best to help. Others acted arbitrarily. The NAACP received complaints of voters who were in line at polling places by the 7 pm closing time but were turned away without being allowed to vote, which violates state guidelines. One Miami-Dade voter, Margarita Green, 75, testified before the Civil Rights Commission that she went to vote at her regular precinct but was not on the rolls. A poll worker informed Green that she had been removed from the rolls after she herself had called and requested it. "I never made such a phone call," said Green. "And how could they ever know it was really me who called? It makes no sense."
Some widows, who in decades past had shared the same Social Security numbers as their now-deceased husbands, showed up on lists of dead voters to be purged and therefore were informed they couldn't vote. The law allows people not listed on the rolls to vote by affidavit and then prove their eligibility later, but many poll workers knew nothing of that law and turned voters away. Similarly, a voter making an error on a ballot is entitled to hand the ballot in and obtain a replacement, but those requests were sometimes denied. Leaders of organizations for the disabled also testified that some polling places were ill equipped to allow them to vote.
An attorney for the Puerto Rican Legal Defense and Education Fund testified to twenty-six specific incidents in the Orlando area where Latino voters were either denied the right to vote or were forced to argue with poll workers before they cast their ballots. PRLDEF cited polling places that could not provide bilingual ballots and had no bilingual poll workers to offer assistance, as required by the Voting Rights Act in precincts with large minority populations. The PRLDEF report said the problem may have disfranchised up to several thousand Latino voters around the state. Marlene Bastien, a Haitian leader from Miami, testified to similar problems in Haitian neighborhoods, which she said may have left hundreds of voters unable to cast ballots.
Black residents of southern Leon County complained of a Florida Highway Patrol checkpoint on a road leading to a polling place and said it amounted to harassment of black voters. Police authorities later testified that the stops involved routine vehicle inspections and pledged that no such checkpoints would be used on election days in the future.
Of the 179,855 votes that were cast but later discarded--either because they contained more than one vote for President or no detectable vote--again it is impossible to know exactly how many were cast by blacks, but statistics make it clear that African-Americans' votes were lost at much higher rates than those of other ethnic groups, involving tens of thousands of votes in total. Those statistics are directly tied to the now infamous and error-prone punch-card voting system.
In four of the counties in the state with the largest black populations--Miami-Dade, Broward, Palm Beach and Duval--punch-card systems are used. Some 100,000 votes were discarded in those counties, more than half the discards in the state. According to a study by the Miami Herald, eighteen out of the nineteen precincts in the state with the highest rate of discards were majority-black precincts, all of which used punch-card systems. Seventy percent of Florida blacks were forced to use the punch-card system, a percentage higher than other ethnic groups. Subsequently the NAACP sued state officials to end the use of the punch-card system, which they say is used disproportionately in black communities and amounts to disfranchisement of tens of thousands of black voters.
During testimony before the Civil Rights Commission on January 11, Jeb Bush swore that he had no knowledge of or involvement in the staging of elections in Florida. Bush passed the buck to Katherine Harris, who also denied direct involvement in the polling process. What is known is that $100,000 requested by county elections supervisors for voter education--which would have helped voters use the punch-card system and decipher confusing ballots--was deleted from the Division of Elections budget.
Conservative Florida Democrats didn't do much better at overseeing the electoral process. Bob Crawford, state agriculture secretary and a member of the state Elections Canvassing Committee, testified on January 12 that he had heard nothing about disfranchisement of minorities on Election Day--this despite the fact that the NAACP had made headlines with a daylong hearing in Miami on November 11 about such irregularities.
The Florida Elections Commission, a state body charged with investigating voting irregularities, reported to the Civil Rights Commission in January that it had done no investigating because no formal complaint had been received, despite the public clamor by blacks.
On November 16, in the midst of the outcry over the butterfly ballot, the Palm Beach Post quoted Florida House Speaker Tom Feeney, a Republican, as saying, "Voter confusion is not a reason for whining or crying or having a revote. It may be a reason to require literacy tests." Literacy tests for the purpose of screening voters are, of course, unconstitutional.
Although they deny they did anything wrong themselves, these Florida leaders have said they will fix what is wrong with the Florida electoral system. The NAACP, however, is not convinced. Its suit demands that federal examiners oversee elections in specific counties in Florida for the next ten years, including the next two presidential contests, so that another election isn't hijacked.