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United States Commission on Civil Rights, charged with the statutory
duty to investigate voting rights violations in a fair and objective
manner, has produced a report that fails to serve the public interest.
Voting Irregularities Occurring in Florida During the 2000 Presidential
Election is prejudicial, divisive, and injurious to the cause
of true democracy and justice in our society. It discredits the
Commission itself and substantially diminishes its credibility as
the nation's protector of our civil rights.
The Commission's majority report is a partisan document that has
little basis in fact. Its conclusions are based on a deeply flawed
statistical analysis coupled with anecdotal evidence of limited
value, unverified by a proper factual investigation. This shaky
foundation is used to justify charges of the most serious nature
— questioning the legitimacy of the American electoral process
and the validity of the most recent presidential election. The report's
central finding — that there was "widespread disenfranchisement
and denial of voting rights" in Florida's 2000 presidential election
— does not withstand even a cursory legal or scholarly scrutiny.
Leveling such a serious charge without clear justification is an
unwarranted assault upon the public's confidence in American democracy.
Using all the variables in the statistical analysis in the majority
report, Dr. John Lott, an economist at Yale Law School, was unable
to find a consistent, statistical significant relationship between
the share of voters who were African Americans and the ballot spoilage
rate.
Furthermore, Dr. Lott conducted additional analysis beyond Lichtman's
parameters, looking at previous elections, demographic changes,
and rates of ballot spoilage. His analysis found little relationship
at all between racial population change and ballot spoilage,
and the one correlation that is found runs counter to the majority
report's argument: An increase in the black share of the
voting population is linked to a slight decrease in spoilage
rates, although the difference is not statistically significant.
Nothing is more fundamental to American democracy than the right
to vote and to have valid votes properly counted. Allegations of
disfranchisement are the fertile ground in which a dangerous distrust
of American political institutions thrives. By basing its conclusion
on allegations that are driven by partisan interests and which lack
factual basis, the majority on the Commission has needlessly fostered
public distrust, alienation and manifest cynicism. The intent of
the partisan conclusions of the report is to label the outcome of
the 2000 election as illegitimate, thereby calling into question
the most fundamental basis of American democracy.
Obvious partisan passions not only destroyed the credibility of
the report itself, but informed the entire process that led up to
the final draft. At the Florida hearings, Governor Jeb Bush was
the only witness who was not allowed to make an opening statement.
The Chair, Mary Frances Berry, was quoted in the Florida press as
comparing the Governor and Secretary of State to "Pontius Pilate…just
washing their hands of the whole thing." On March 9, six commissioners
voted to issue a "preliminary assessment" — in effect, a verdict
— long before the staff had completed its review of the evidence.
The statistical analysis upon which many of the final report's findings
are based was conducted by an historian with close ties to Albert
Gore, Jr. The report claims that "affected agencies were afforded
an opportunity to review applicable portions"; in fact, affected
parties were never given a look at the preliminary assessment, and
had only ten days to review and respond to the final report, in
violation of established procedures and previous promises. Our memoranda
to the chief of staff throughout the process regularly went unanswered.
Most recently, a request for basic data to which we — and indeed,
any member of the public — were entitled was denied to us.
The Commission hired Professor Allan Lichtman, an historian at American
University, to examine the relationship between spoiled ballots
and the race of voters. We asked for a copy of the machine-readable
data that Professor Lichtman used to run his correlations and regressions.
That is, we wanted his computer runs, the data that went into them,
and the software he used. Obviously, he could have easily given
that to us. The Commission had the temerity to tell us that it did
not exist — that the data as he organized it for purposes of
analysis was literally unavailable. Professor Lichtman, who knows
that as a matter of scholarly convention such data should be shared,
also declined to provide it. Evidently, Dr. Lichtman and the majority
on the Commission have no confidence in their own numbers and analysis.
Process matters. And that is why it is important to examine, with
integrity, violations of the electoral process in Florida and other
states. When the process is right, participants on another day can
revisit the outcome — use the procedures (fair and thus trusted)
to debate policy or to vote again. But when the process is corrupt,
the conclusions themselves (current and future) are deeply suspect.
The Commission investigated procedural irregularities in Florida;
it should have gotten its own house in order first.
Had the process been right, the substance might have been much better.
The Commission's staff would have received feedback from Florida
officials, commissioners, and other concerned parties, on the basis
of which it might have revised the report. It should be consulting
with commissioners in the course of drafting a report, including
those who do not share the majority view. As it is, at great expense,
the Commission has written a dangerous and divisive document. And
thus it certainly provides no basis upon which to reform the electoral
process in Florida or anywhere else.
In the pages below, we will argue:
I. The statistical analysis done
for the Commission by Dr. Allan Lichtman does not support the claim
of disfranchisement.
The most sensational
"finding" in the majority report is the claim that black voters
in the Florida election in 2000 were nine times as likely as other
residents of the state to have cast ballots that did not count in
the presidential contest, and that 52 percent of all disqualified
ballots were cast by black voters in a state whose population is
only 15 percent black.
The charge is unsupported by the evidence.
(a) Disfranchisement is not the same as voter error. The
report talks about voters likely to have their ballots spoiled;
in fact, the problem was undervotes and overvotes, some of which
were deliberate (the undervotes, particularly). But the rest are
due to voter error. Or machine error, which is random, and thus
cannot "disfranchise" any population group. It was certainly not
due to any conspiracy on the part of supervisors of elections; the
vast majority of spoiled ballots were cast in counties where the
supervisor was a Democrat.
The majority report argues that race was the dominant factor explaining
whose votes counted and whose were rejected. But the method used
rests on the assumption that if the proportion of spoiled ballots
in a county or precinct is higher in places with a larger black
population, it must be African American ballots that were disqualified.
That conclusion does not necessarily follow, as statisticians have
long understood.
We have no data on the race of the individual voters. And it is
impossible to develop accurate estimates about how groups of individuals
vote (or misvote) on the basis of county-level or precinct-level
averages.
(b) The majority's report assumes race had to be the decisive
factor determining which voters spoiled their ballots. Indeed,
its analysis suggests that the electoral system somehow worked to
cancel the votes of even highly educated, politically experienced
African Americans.
In fact, the size of the black population (by Dr. Lichtman's own
numbers) accounts for only one-quarter of the difference between
counties in the rate of spoiled ballots (the correlation is .5).
However it is clear we cannot make meaningful statements about the
relationship between one social factor and another without controlling
for or holding constant other variables that may affect the relationship
we are assessing.
The more complex regression analysis that Dr. Lichtman conducted
does not isolate the effect of race per se from that of other variables
that are correlated with race: poverty, income, literacy, and the
like. Or at least, he fails to provide the details — the regression
models — essential to understanding his dismissal of these
other factors. And, most important, he never reports how much of
the variance between counties in the proportion of ballots spoiled
can be explained by a more complex model, such as the one developed
by our own expert, Dr. John Lott of the Yale Law School. Our model
enables us to explain 70 percent of the variance (three times as
much as Dr. Lichtman was able to account for) without considering
racial composition at all.
In fact, using the variables provided in the report, Dr. Lott was
unable to find a consistent, statistically significant relationship
between the share of voters who were African American and the ballot
spoilage rate. Further, removing race from the equation, but leaving
in all the other variables only reduced ballot spoilage rate explained
by his regression by a trivial amount. In other words, the best
indicator of whether or not a particular county had a high or low
rate of ballot spoilage is not its racial composition. Non-racial
information is much more useful.
(c) The obvious explanation for a high number of spoiled ballots
among black voters is their lower literacy rate. Dr. Lichtman
offers only a cavalier discussion of the question, and his conclusion
that literacy rates were irrelevant makes no sense. (In fact, the
report itself recommends "effective programs of education for voters…")
Moreover, the data upon which he relies are too crude to allow meaningful
conclusions. They are not broken down by race, for one thing.
(d) First time voters: An important source of the high rate
of ballot spoilage in some Florida communities may have been that
a sizable fraction of those who turned out at the polls were there
for the first time and were unfamiliar with the electoral process.
Impressionistic evidence suggests that disproportionate numbers
of black voters fell into this category. The majority report's failure
to explore — or even mention — this factor is a serious
flaw.
(e) The Time Dimension: Most social scientists understand
that the interpretation of social patterns on the basis of observations
at just one point in time is dangerously simplistic. But that is
all the majority report offers. It focuses entirely on the 2000
election returns. Dr. Lott did two analyses that take the time dimension
into account.
He looked at spoilage rates by county for the 1996 and 2000 presidential
races, and compared them with demographic change. A rise in a county's
black population did not result in a similar rise in spoilage rates,
suggesting, again, that race is not the explanatory factor.
He also examined data from the 1992, 1996, and 2000 races, and found
that the "percent of voters in different race or ethnic categories
is never statistically related to ballot spoilage."
(f) County-level data v. Precinct data: The majority report,
as earlier noted, speaks of black ballots as nine time more likely
to be spoiled than white ballots. And it presents some precinct-level
data, providing estimates based on smaller units that are likely
to be somewhat closer to the truth than estimates based on inter-county
variations. Dr. Lichtman's own numbers show that county-level and
precinct-level data yielded quite different results. Ballot rejection
rates dropped significantly when the precinct numbers were examined,
even though looking at heavily black precincts should have sharpened
the difference between white and black voters, rather than diminishing
it. Dr. Lichtman obscures this point by shifting from ratios to
percentage point differences.
Dr. Lichtman's precinct analysis is just as vulnerable to criticism
as his county-level analysis. It employs the same methods, and again
ignores relevant variables that provide a better explanation of
the variation in ballot spoilage rates.
(g) Who Is Responsible for Elections? The majority report
charges "disenfranchisement" and lays the blame at the feet of state
officials — particularly Governor Jeb Bush and Secretary of
State Kathryn Harris. In fact, however, elections in Florida are
the responsibility of 67 county supervisors of election. And, interestingly,
in all but one of the 25 counties with the highest spoilage rates,
the election was supervised by a Democrat — the one exception
being an official with no party affiliation.
Dr. Lott added another variable to the mix: the race of the election
supervisor. And he found that having Democratic officials in charge
increases the ballot spoilage rate substantially, but the effect
is even stronger when that Democratic official is African American.
Obviously no officials were out to disfranchise black voters, and
the correlation points once again to the limitations of ecological
regressions.
The majority report argues that much of the spoiled ballot problem
was due to voting technology. But Democratic Party officials decided
on the type of machinery used, including the optical scanning system
in Gadsden County, the state's only majority-black county and the
one with the highest spoilage rate.
(h) Hispanics have been mostly forgotten. Hispanics are a
protected group under the Voting Rights Act. Moreover, the majority
report speaks repeatedly of the alleged disenfranchisement of "minorities"
or "people of color." One section is headed "Votes in Communities
of Color Less Likely to be Counted." And yet the crucial statistical
analysis provided in Chapter 1 entirely ignores Florida's largest
minority group — people of Hispanic origin. The analysis in
the Commission's report thus excluded more Floridians of minority
background than it included.
The analysis conducted by Dr. Lichtman treats not only Hispanics
but Asians and Native Americans as well as if they were, in effect,
white. He dichotomizes the Florida population into two groups, blacks
and "nonblacks."
In the revised report, Dr. Lichtman did add one graph dealing with
Hispanics in the appendix, but this addition to his statistical
analysis is clearly only an afterthought. At the June 8th Commission
hearing Dr. Lichtman stated he looked at this issue only at the
last minute (literally the night before). Obviously, his primary
analysis ignored Hispanics.
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