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II.
The Evidence Fails To Support the Claim of Systematic Disfranchisement
Based on witnesses' limited
(and often, uncorroborated) accounts, the Commission insists that
there were "countless allegations" involving "countless numbers"
of Floridians who were denied the right to vote. This anecdotal
evidence is drawn from the testimony of 26 "fact witnesses," residing
in only eight of the state's 67 counties.
In fact, however, many of those who appeared before the Commission
testified to the absence of "systemic disenfranchisement" in Florida.
Thus, a representative of the League of Women Voters testified that
there had been many administrative problems, but stated: "We don't
have any evidence of race-based problems…we actually I guess
don't have any evidence of partisan problems." And a witness from
Miami-Dade County, who said she attributed the problems she encountered
not to race but rather to inefficient poll workers: "I think [there
are] a lot of people that are on jobs that really don't fit them
or they are not fit to be in."
Without question, some voters did encounter difficulties at the
polls, but the evidence fails to support the claim of systematic
disfranchisement. Most of the complaints the Commission heard in
direct testimony involved individuals who arrived at the polls on
election day only to find that their names were not on the rolls
of registered voters. The majority of these cases many due to bureaucratic
errors, inefficiencies within the system, and/or error or confusion
on the part of the voters themselves.
III The Commission Failed to Distinguish
Between Bureaucratic Problems and Actual Discrimination
Other witnesses did offer
testimony suggesting numerous problems on election day. But the
Commission, in discussing these problems, failed to distinguish
between mere inconvenience, difficulties caused by bureaucratic
inefficiencies, and incidents of potential discrimination. In its
report, the complaint from the voter whose shoes were muddied on
the path to his polling place is accorded the same degree of seriousness
as the case of the seeing-impaired voter who required help in reading
the ballot, or the African American voter who claimed she was turned
away from the polls at closing time while a white man was not.
There were certainly jammed phone lines, confusion and error, but
none of it added up to widespread discrimination. Many of the difficulties,
like those associated with the "butterfly ballot," were the product
of good intentions gone awry or the presence of many first-time
voters. The most compelling testimony came from disabled voters
who faced a range of problems, including insufficient parking and
inadequate provision for wheelchair access. This problem, of course,
had no racial dimension at all.
IV. The Majority Report's Relies
Upon a Warped Interpretation of the Voting Rights Act
The report essentially
concludes that election procedures in Florida were in violation
of the Voting Rights Act, but the Commission found no evidence to
reach that conclusion — only a court can — and has bent
the 1965 statute totally out of shape.
The question of a Section 2 violation can only be settled in a federal
court. Plaintiffs who charge discrimination must prevail in a trial
in which the state has a full opportunity to challenge the evidence.
To prevail, plaintiffs must show that "racial politics dominate
the electoral process," as the 1982 Senate Judiciary Committee Report
stated in explaining the newly amended Section 2.
The majority's report implies that Section 2 aimed to correct all
possible inequalities in the electoral process. Had that been the
goal, racially disparate registration and turnout rates — found
nearly everywhere in the country — would constitute a Voting
Rights Act violation. Less affluent, less educated citizens tend
to register and vote at lower rates, and, for the same reasons,
are likely to make more errors in casting ballots, especially if
they are first time voters. Neither the failure to register nor
the failure to cast a ballot properly — as regrettable as they
are — are Section 2 violations.
Thus, despite the thousands of voting rights cases on the books,
the majority report cannot cite any case law that suggests punch
card ballots, for instance, are potentially discriminatory. Or that
higher error rates among black voters suggest disfranchisement.
There is good reason why claims brought under Section 2 must be
settled in a federal court. The provision requires the adjudication
of competing claims about equal electoral opportunity — an
inquiry into the complex issue of racial fairness. The Commission
is not a court and cannot arrive at verdicts that belong exclusively
to the judiciary. Yet, while the majority report does admit that
the Commission cannot determine if violations of the Voting Rights
Act have actually occurred, in fact it unequivocally claims to have
found "disenfranchisement," under the terms of the statute.
V. Misplaced Responsibility for
Election Procedures
The report holds Florida's
public officials, particularly the governor and secretary of state
responsible for the discrimination that it alleges. "State officials
failed to fulfill their duties in a manner that would prevent this
disenfranchisement," it asserts. In fact, most of the authority
over elections in Florida resides with officials in the state's
67 counties, and all of those with the highest rates of voter error
were under Democratic control.
The report charges that the governor, the secretary of state and
other state officials should have acted differently in anticipation
of the high turnout of voters. What the Commission actually heard
from "key officials" and experts was that the increase in registration,
on average, was no different than in previous years; that since
the development of "motor voter" registration, voter registration
is more of an ongoing process and does not reach the intensity it
used to just prior to an election; and that, in any event, registration
is not always a reliable predictor for turnout.
There was a 65 percent increase in African American voters, 40 percent
of whom were coming to the polls for the first time. But this was
an unanticipated event.
The majority report also faults Florida state officials with having
failed to provide the 67 supervisors of elections with "adequate
guidance or funding" for voter education and training of election
officials. What the report pointedly ignores is that the county
supervisors are independent, constitutional officers who make their
budget requests to the boards of county commissioners, not to the
state.
VI. The Commission Provides Only
A One-Sided Examination of 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. The Commission did not hear from a single witness who was
actually prevented from voting as a result of being erroneously
identified as a felon. Furthermore, whites were twice as likely
as blacks to be placed on the list erroneously not the other way
around.
The compilation of the purge list was part of an anti-fraud measure
enacted by the Florida legislature in the wake of a Miami mayoral
election in which ineligible voters cast ballots. The list for the
2000 election was overinclusive, and some supervisors made no use
of it. (The majority report did not bother to ask how many counties
relied upon it.) On the other hand, according to the Palm Beach
Post, more than 6,500 ineligible felons voted.
Based on extensive research, the Miami Herald concluded that the
biggest problem with the felon list was not that it wrongly prevented
eligible voters from casting ballots, but that it ended up allowing
ineligible voters to cast a ballot. The Commission should have looked
into allegations of voter fraud, not only with respect to ineligible
felons, but allegations involving fraudulent absentee ballots in
nursing homes, unregistered voters, and so forth. Across the country
in a variety of jurisdictions, serious questions about voter fraud
have been raised.
VII. Unwarranted Criticism of
Florida Law Enforcement
Despite clear and direct
testimony during the hearings, as well as additional information
submitted by Florida officials after the hearings, the report continues
to charge the Florida Highway Patrol with behavior that was "perceived"
by "a number of voters" as "unusual" (and thus somehow "intimidating")
on election day. In fact, only two persons are identified in the
report as giving their reactions to activities of the Florida Highway
Patrol on election day. One testified regarding a police checkpoint,
and the other testified that he found it "unusual" to see an empty
police car parked outside of a polling facility. Neither of these
witnesses' testimony indicates how their or others' ability to vote
was impaired by these events.
VIII. Procedural Irregularities
at the U.S. Commission on Civil Rights
Procedural irregularities
have seriously marred the majority report. In writing the report,
the Commission ignored not only the rules of evidence, but the agency's
own procedures for gathering evidence. By arguing that "every voice
must be heard," while in fact stifling the voice of the political
minority on the Commission itself, it is guilty of gross hypocrisy.
Among the procedural problems in the drafting of the report:
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Republican-appointed commissioners were never asked for any input
in the composition of the witness list or in the drafting of the
report itself. In fact, we were denied access to the witness lists
altogether. An outside expert, with strong partisan affiliations,
was hired to do a statistical analysis without consultation with
commissioners.
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At the hearings in Florida, the secretary of state and other Republican
witnesses were treated in a manner that fell far short of the
standard of fair, equal and courteous.
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The majority reached and released its verdict, in the form of
a "preliminary assessment," long before the report was ready for
discussion.
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Florida authorities who might be defamed or degraded by the report
were not given the proper time to review the parts of the report
sent to them — to say nothing of their right to review the
report in its entirety.
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Affected agencies were not given adequate time to review applicable
provisions, and a draft final report was made available to the
press that included no corrections or amendments on the basis
of affected agency comments.
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Commissioners were given only three days to read the report —
one less day than three major newspapers had — before its
approval by the Commission at the June 8 meeting. This and other
aspects of the process were contrary to the schedule, and made
careful, detailed feedback at the time literally impossible.
In its efforts to investigate procedural irregularities in Florida,
the Commission has clearly engaged in serious procedural irregularities
of its own. By consistently violating its own procedures for fair
and objective fact-finding, the Commission, undermines its credibility
and calls into question the validity of its work.
Part I: The Commission's Statistical
Analysis Fails to Prove Disfranchisement
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 Florida 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.
The most sensational "finding" in the majority report, and the one
that received most attention in the press, is the claim that black
voters in the Florida election in 2000 were allegedly 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. This charge was naturally newsworthy;
however, it is demonstrably false.
Dr. Lichtman's statistical analysis is badly flawed, strongly slanted
to support preconceived conclusions that cannot withstand careful
scrutiny. The bold assertion that 52 percent of disqualified ballots
were cast by blacks, and that blacks were nine times as likely to
have their ballots rejected as non-blacks, we will show in detail
below, is best described as nothing more than a wild guesstimate.
Dr. Lichtman's other estimates are not much more reliable, and he
fails to examine the impact of some variables that were of great
importance in determining the outcome.
Below we provide a broader and more sophisticated regression analysis
prepared for us by an econometrician, an analysis which clashes
with that provided in the majority report on virtually every important
point.
Playing Semantic Games: Disfranchisement,
Voter Choice, or Voter Error?
To begin with, disfranchisement is conflated with voter error.
The report talks about voters likely to have their ballots spoiled;
in fact, the problem was undervotes and overvotes, some of which
(particularly undervotes) were deliberate. 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 election; the vast
majority of spoiled ballots cast in counties where the supervisor
was a Democrat — a point to which we will return.
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 goes up at the same time that the
proportion of black voters rises, 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.
It is important to note at the outset that the majority report's
account of Dr. Lichtman's findings employs language that serves
to obscure the true nature of the phenomenon under investigation.
These pages are filled with references to the "disenfranchisement"
of black voters, as if African Americans in Florida last year were
faced with obstacles comparable to poll taxes, literacy tests, and
other devices by which southern whites in the years before the Voting
Rights Act of 1965 managed to suppress the black vote and keep political
office safely in the hands of candidates committed to the preservation
of white supremacy.
Black votes, we are told again and again, were "rejected" in vastly
disproportionate numbers. "Countless Floridians," the report concludes,
were "denied…their right to vote," and this "disenfranchisement
fell most harshly on the shoulders of African Americans." In a particularly
masterful bit of obfuscation, the majority report declares that,
"persons living in a county with a substantial African American
or people of color population are more likely to have their ballots
spoiled or discounted than persons living in the rest of Florida."
This alleged fact, the reader is told, "starts to prove the Florida
election was not 'equally open to participation' by all."
Let us be clear: According to Dr. Lichtman's data, 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. Six out of
ten of these rejected ballots (59 percent) were "overvotes" —
ballots that were disqualified because they indicated more than
one choice for president. Another 35 percent were "undervotes,"
ballots lacking any clear indication of which presidential candidate
the voter preferred. (The other 6 percent were invalid for some
other unspecified reason. Since they are ignored in the majority
report, they will be here as well.)
Hence the chief problem in Florida was voters who cast a ballot
for more than one candidate for the same office, and the second
most common problem was voters who registered no choice at all.
Ballots were "rejected," in short, because it was impossible to
determine which candidate — if any — voters meant to choose
for president.
Some of these overvotes and undervotes, it should be noted, may
have been the result of deliberate choices on the part of voters.
In fact, Chair Mary Frances Berry remarked at the hearing in Miami
that she herself has sometimes "over-voted deliberately."
Chair Berry cannot be the only voter in the United States to make
such a choice. According to the exhaustive investigation of the
ballots conducted by the Miami Herald, 10 percent of all
the overvotes in the state showed votes for both Bush and Gore.
Presumably, these were voters attempting to convey the message that
either candidate would be equally acceptable. Some voters in Citrus
County put giants X's through the names of all presidential candidates,
perhaps to indicate "none of the above."
Similarly, some of the undervotes under discussion here must been
recorded by people who could not settle on a choice for president
but who turned up to register their preferences in other contests.
We know from the Miami Herald's inspection of the 61,111
undervoted ballots in the state that almost half — 46.2 percent
— had no markings at all for president. It seems reasonable
to assume that most of them did not intend to register a
choice among the presidential candidates, and had come to the polls
to vote for other offices.
If these unmarked ballots were produced by voters who really did
not want to make a choice for president, that would reduce the number
of so-called "spoiled ballots" in the state from 180,000 to 152,000.
It would be interesting if we could make a similar statistical estimate
of the proportion of overvoters who did it deliberately; unfortunately
that is impossible.
What is clear is this: In these instances, overvoting and undervoting
are not "problems" that require "remedies." And they certainly are
not evidence that anyone is being "disenfranchised." They represent
the actual preferences of the voters in question, and it is misleading
to label them "spoiled" ballots at all.
The majority would have us believe that "countless" numbers of Floridians
who were legally entitled to vote had their ballots "spoiled." In
fact, we are not talking about "countless" ballots. We are talking
about 180,000 invalid ballots, minus those that did not indicate
a clear presidential choice because the voter had not decided on
a presidential preference. Thus the 180,000 figure, 2.9 percent
of the total, is an upper bound estimate of the true figure, which
is undoubtedly smaller by an unknown amount. The county-by-county
figures on so-called spoiled ballots are likewise exaggerations,
biased upward to an unknown amount.
Still, there are overvotes and undervotes that probably did not
reflect the will of the voters. What accounts for them? The opening
paragraph of the introduction to the majority report suggests that
the issue is whether "votes that were cast were properly tabulated."
What does this mean? Are we to believe African Americans cast their
ballots correctly on election day, but that the ballots were incorrectly
tabulated by the machines, or the people who conducted manual recounts
in some counties? There is no evidence whatsoever to support that
implication.
Some of the 180,000 rejected ballots may have the result of machine
error, of course — but very few. Machine error, according to
experts who have studied it, is rare, involving at most 1 in 250,000
votes cast. And machine error is obviously random, and thus cannot
"disenfranchise" any population group. No one has yet shown that
a VotoMatic machine can be programmed to distinguish black voters
from others and to record votes by African Americans in such a way
as to facilitate their rejection.
There is only one other explanation of what the Commission tendentiously
describes as "disenfranchisement." The problem is voter error,
a term that astonishingly appears nowhere in the majority report.
This is the central fact the majority report attempts to obscure.
Some voters simply did not fill out their ballots according to the
instructions. They failed to abide by the very elementary rule that
you must vote for one and only one candidate for the office of president
of the United States, and therefore their attempt to register their
choice failed. Their ballots were rejected, and their votes did
not count.
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 goes up at the same time that the
proportion of black voters rises, 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.
The Ecological Fallacy
Did African American
voters in the 2000 Florida election have more difficulty completing
their ballots correctly than did other citizens of the state, and
hence have a higher rate of ballot rejection? Quite possibly so,
but Dr. Lichtman's estimates upon which the Commission relied are
open to very serious doubt. At best, they are highly exaggerated
and, strong evidence (Dr. Lott's research, discussed below) suggests
they are entirely wrong.
How can we figure out whether there were major racial differences
in the rate of voter error or ballot spoilage in the 2000 election?
We have no data whatever on the race of those individuals who cast
invalid ballots. We have secret ballots in the United States, and
accordingly cannot know how any individuals actually voted. Thus
we cannot know with any precision how particular ethnic or racial
groups voted, or at what rate their ballots were actually counted.
Whatever conclusions we draw about the matter must be based on estimates
that will be susceptible to error. The question is whether the analysis
and interpretations offered in the majority report are at least
pretty good approximations of reality. There are many reasons to
doubt that they are.
The majority report attempts to draw conclusions about this important
matter by examining county-level, and to a limited extent, precinct-level
data. It argues that race was the dominant factor explaining whose
votes counted and whose votes were rejected. The method employed
to reach that conclusion rests on the assumption that if the proportion
of spoiled ballots tends to increase across counties or across precincts
as the proportion of blacks residents in those counties increases,
it must be African American voters whose ballots were disqualified.
This simple methodology may seem intuitively appealing — but
it is well established that it is often wrong.
Statisticians have long understood the difficulty of making such
inferences due to a phenomenon that is known in the social science
literature as the "ecological fallacy." The classic discussion of
this issue is in an article that was published half a century ago
in the American Sociological Review. In that paper, W.G.
Robinson reported that had examined the correlation between the
proportion of a state's population that was foreign-born and the
state's literacy rate. He found, surprisingly, a positive
correlation between the literacy rate and the proportion of immigrants
in the population. Contrary to the conventional wisdom, the larger
the foreign-born population, the higher the overall literacy rate
was in a state. The correlation was .53, a bit higher than the one
found by Dr. Lichtman between race and ballot spoilage rates.
Did that really prove that Americans born abroad were more literate,
on the average, than those born within the United States? Robinson
chose this case because he had reliable data against which to check
the ecological estimate; census data were available for individuals.
When Robinson analyzed it, he found that country of birth was negatively
correlated with literacy; the actual figure was -.11. Immigrants
were actually significantly less likely than natives to be literate,
despite the strong state-level correlation suggesting just the opposite.
The state-by-state correlation gave a completely false picture,
because it happened that the states with highly literate populations
were also more developed economically and attracted more immigrants
because jobs were available there. New York, for example, was more
literate than Arkansas. It also had a higher fraction of immigrants
in its population, but not enough to pull the state average down
very far.
A more recent example derives from the work of an eminent mathematical
statistician at the University of California at Berkeley, David
A. Freedman.
Using data from the 1995 Current Population Survey, Freedman found
that the correlation between the proportion of immigrants in the
population of the 50 states and the proportion of families with
incomes over $50,000 in 1994 was .52. Foreign-born Americans, judging
from this ecological correlation, were considerably more affluent
than their native-born neighbors. But the evidence also allowed
Freedman to look at incomes on the individual level. When you do
that, it turns out that in the nation as a whole, 35 percent of
native-born American families were in the $50,000 and over income
bracket — but only 28 percent of immigrant families were. The
true correlation between being foreign-born and having a high family
income was not the .52 estimated from state-level data; it was instead
a mildly negative correlation of -0.05.
In this instance, too, estimates based on ecological correlations
were not just a bit off, a little imprecise but still close enough
to the truth for most purposes. They were way off the mark, and
indeed had falsely transformed relationships that were actually
negative into positive ones.
The problem of the ecological fallacy afflicts all of the statistical
analyses Dr. Lichtman did for the majority report. We must remember
that counties do not vote. Precincts do not vote. Only individuals
vote. 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.
In his appearance before the June 8, 2001 meeting of the Commission
on Civil Rights, Dr. Lichtman sounded a note of caution about his
findings. He declared that a correlation does not "by itself prove"
that there were "disparate rates" at which ballots by African Americans
and "non-African Americans" were rejected. That is certainly true.
But he went on to claim that the "more advanced statistical procedures"
he employed could reliably do so. Unfortunately, that is not true.
The use of ecological regression techniques does not solve the problem
of the ecological fallacy, because it depends upon exactly the same
aggregated data as simple correlational analysis, and makes the
same, often incorrect, "constancy assumption." It assumes that there
is no relationship between the composition of geographical areas
and the relationship in question, when in fact there often is.
If the information utilized in an analysis is based on averages
for geographical units, whether they are counties or precincts,
the results will necessarily be imprecise and they may be just plain
wrong, as in the example of immigrant literacy levels given above.
When David Freedman did an ecological regression of state-level
data to assess the relationship between immigration and family income,
he found that it estimated that fully 85 percent of foreign-born
American families had 1994 family incomes above $50,000. But the
true figure, from individual-level data, was really only 28 percent.
Ecological regression, in this case, yielded results that were wildly
mistaken. In another paper, Freedman provided a similar critique
of ecological regression estimates of political behavior specifically,
in instances in which individual-level data happened to be available,
and he found ecological regression estimates to have been highly
unreliable.
In sum, inferences about individual behavior on the basis of the
average distribution of some characteristic across geographical
units are sometimes wildly inaccurate. They must be examined with
great caution and skepticism. The majority report does not display
the necessary caution about what the facts reveal. A more searching
analysis, summarized below and spelled out in Appendix I, demonstrates
how misleading Dr. Lichtman's findings are.
Factors Other Than Race May Have Explained the Percentage of
Spoiled Ballots 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).
But Dr. Lichtman knows that 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, however, 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 that our own expert, Dr. John Lott, developed. 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 the amount of 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.
Was race itself a decisive factor in determining which voters spoiled
their ballots in the 2000 election in Florida, as the majority report
contends? Did the electoral system somehow work in such a way that
even highly educated, politically experienced African Americans,
for example, cast ballots that were somehow spoiled in some unspecified
and mysterious way? The majority report claims that the answer was
yes, though it provides no indication of how the process worked
to produce that result. Dr. Lichtman's statistical analysis, the
report claims, demonstrates that such was the case.
It does nothing of the sort, even if we set aside for the sake of
argument the serious doubts most statisticians have about the accuracy
of any estimate based on an ecological regression or correlation.
The report begins with the simple correlation between the percentage
of African American registered voters in Florida's counties and
the percentage of spoiled ballots. That correlation is .50. Speaking
in statistical shorthand, that "explains" 25 percent of the total
variance across the counties. (It doesn't necessarily "explain"
anything in ordinary language, we shall see later). In other words,
if you want to know why some Florida counties have a high and some
a low rate of spoiled ballots, knowing their racial composition
only accounts for one quarter of the difference.
Social scientists know that a simple correlation of about .5 between
two variables has very little meaning. 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.
Dr. Lichtman did perform a more complex regression analysis, so
as to isolate the effect of race per se from that of other variables
that happen to be correlated with race, such as poverty, median
income levels, literacy rates and the like. But neither the account
of his work provided in the majority report nor the more detailed
discussion in June 4 technical report to the commission conform
to normal social science practice. The only regression estimates
offered are for the same two variables used in his simple correlation
— that between race and ballot rejection rates — with
the only refinement being that he separates undervotes from overvotes
and takes into account the voting system used in each county.
Dr. Lichtman raises the key question: "Is there some other factor
which better explains this disparity in ballot rejection rates?"
But he simply asserts that the answer is no and moves on, without
providing the detail necessary for anyone to know the statistical
basis for his opinion. He offers only two sentences claiming that
applying controls for education do not weaken the association between
race and ballot rejection. But he never discusses the possible influence
of any other variables, and he never provides the actual regression
models, as is common in reports of quantitative social science research.
Most striking, and most damaging to the Commission's case, Dr. Lichtman
never reports how much more of the variance can be explained by
using a more complex model that incorporates other variables.
As we will show below, it is possible to develop a regression model
that explains approximately 70 percent of the variance in
ballot spoilage rates, nearly three times as much as Dr. Lichtman
has been able to account for, without taking the racial composition
of the counties into account at all.
This conclusion derives from an analysis performed at our request
by a first-rate economist, Dr. John R. Lott, Jr. of the Yale Law
School, who was willing to take the time to evaluate the work of
the commission and of Dr. Lichtman, and even to gather additional
data of his own to further extend the analysis. Lott's report, with
accompanying figures and tables, appears as an appendix to this
statement.
Dr. Lott ran a series of regressions, varying the specifications
in an effort to replicate Dr. Lichtman's results. Using all the
variables reported in Appendix I in the majority report, he was
unable to find a consistent, statistically significant relationship
between the share of voters who were African American and the ballot
spoilage rate. The coefficient on the percent of voters who were
black was indeed positive, but it was statistically insignificant.
The chance that the relationship was real was only 50.3 percent,
just about the chance of getting tails to come up on any one coin
toss and far below the significance level commonly demanded in social
science.
Furthermore, when Dr. Lott analyzed the data using a specification
that implied that the share of African American voters in a county
was significantly related to the level of ballot spoilage,
he found that it explained hardly any of the overall variance. Removing
race from the equation but leaving in all the other explanatory
variables only reduced the amount of ballot spoilage explained by
his regression from 73.4 percent to 69.1 percent, only a mere 4.3
percentage point reduction (see Lott's Table 2 in the attachment).
Indeed, in none of the other specifications provided in his Table
2 did taking racial information out of the analysis but leaving
in other variables reduce by more than 3 percent the amount of variance
in the spoiled ballot rate that is explained. Consequently, it
simply is not true that the best indicator of whether or not a particular
county had a high or low rate of ballot spoilage is its racial composition.
One can predict that with a much higher degree of confidence by
looking at other, non-racial information.
Was Education the Problem?
The obvious explanation for a high number of spoiled ballots
among black voters is their lower literacy rate. Dr. Lichtman has
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 even broken out by race.
Although it does not take a high level of literacy to follow the
instruction, "Vote for ONE of the following," or "Fill in the box
next to the name of the candidate you wish to vote for," it does
take some reading ability. We know that some Americans today, regrettably,
find it extremely difficult to understand even the simplest written
instructions. And, unfortunately, this group is disproportionately
black. The U.S. Department of Education's 1992 Adult Literacy Study
found that 38 percent of African Americans — but only 14 percent
of whites — ranked in the lowest category of "prose literacy,"
which was defined as being unable to "make low-level inferences
based on what they read and to compare or contrast information that
can easily be found in [a] text."
Black Americans, the study found, were 2.7 times as likely as whites
to have the lowest level of literacy skills. Likewise, the 1998
National Assessment of Educational Progress found that 43 percent
of African American 12th-graders had reading skills that were "Below
Basic," as compared to just 17 percent of whites. Black students
were 2.5 times as likely as whites to lack elementary reading skills.
Among adults employed full-time, blacks are 4.1 times more likely
than whites to be in the lowest prose literacy category.
National studies provide no data on Florida specifically. However,
we know from the National Assessment of Educational Progress that
black 4th- and 8th-graders in Florida (no state-level data is available
for 12th-graders) are no better readers than their counterparts
elsewhere. Indeed, their scores are below the national average for
African Americans. No fewer than 57 percent of Florida's black 8th-graders
in 1998 were Below Basic in reading, 10 points above the national
average for African Americans, and 2.7 times as high as the white
figure.
The majority report, though, denies that racial differences in literacy
levels could be the source of the problem. It devotes only a brief
paragraph to the matter, claiming that "a multiple regression analysis
that controlled for the percentage of high school graduates and
the percentage of adults in the lowest literacy category failed
to diminish the relationship between race and ballot rejection."
But the regression results themselves are not provided for the critical
reader to assess. When one turns to Dr. Lichtman's actual report
for greater illumination, one finds nothing more than the exact
language used in the commission report. This is a cavalier way to
treat an issue as serious as this one.
The claim that the incidence of ballot spoilage or voter error is
unrelated to education is counter-intuitive. It is also extremely
puzzling, because just a few pages later in the same chapter the
report addresses possible solutions to the problem. It urges the
adoption of optical scanning systems with immediate feedback to
voters throughout Florida, but then goes on to say that this would
not "eliminate the disparity between the rates at which ballots
cast by African Americans and whites are rejected." It estimates
that it would only cut the disparity by about half. What else could
be done? The Commission's answer is "effective programs of education
for voters, for election officials, and for poll workers."
The commission majority seems to be declaring both that:
-
The lower average level of literacy among Florida's blacks has
nothing to do with the allegedly higher rate of voter error by
blacks; and
-
The solution to this problem is for the state of Florida to launch
a huge new program designed to educate black voters on how to
vote successfully.
The logic eludes us.
Dr. Lichtman's attempt to assess the role of education is cursory,
and the data upon which he relies is too crude to allow meaningful
conclusions. The "synthetic estimates of adult literacy proficiency"
he uses have wide confidence intervals — an average of 6 percent.
More important, the literacy data Dr. Lichtman used in his analysis
are not broken down by race. So they cannot tell us anything
about whether the small fraction of a county's voters who failed
to cast a ballot successfully were people who had difficulty reading
and what the racial composition of that group might be. Remember
that the highest rate of ballot spoilage in any county was 12.4
percent, and that it was below 5 percent in nearly two-thirds of
the counties. So we are talking about a very small group, and one
whose presence is not likely to show in county-wide averages.
Palm Beach County, for example, led the state in the number of spoiled
ballots — nearly 30,0000. Some 6.4 percent of all the ballots
cast there were invalid. The proportion of Palm Beach residents
who ranked in the bottom literacy category was 22 percent, a little
below the state average of 25 percent. And the proportion who had
attended college was 48 percent, again above the state average.
But this does not allow us to conclude that the 6.4 percent of Palm
Beach voters who failed to complete their ballots successfully were
not primarily people who had difficulty in reading, comprehending
and following ballot instructions.
How Many of the Spoiled Ballots
Were Cast by First-time Voters?
An important source of the high rate of ballot spoilage in some
Florida communities is that a sizable fraction of those who turned
out at the polls were there for the first time and did not grasp
the rules of the electoral game. 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 limitation.
A
closely related and complementary explanation of what the majority
report claims was a racial difference in rates of ballot spoilage
is that an unusually high proportion of the blacks who voted in
Florida in 2000 were first-time voters. According to estimates widely
cited in the press, as many as 40 percent of the African Americans
who turned up at the polls in Florida in November had never voted
before. For the first time in Florida history, it was reported,
the African American share of the total vote was larger than the
black share of the state's population. If so, it would not be surprising
if disproportionate numbers of first-time voters made mistakes,
since this was a process completely unfamiliar to them.
It is startling and very revealing that neither the majority report
nor Dr. Lichtman's report even mention this as a possible source
of voter error, much less choose to investigate it. It could easily
have been done with the help of commission staff that surely was
available to Dr. Lichtman. One would need to get the data on votes
cast by race for Florida's counties over the past three or four
presidential elections. Adding in information on demographic change
over period, one could come up with usable estimates of the minimum
proportion of black voters appearing at the polls for the first
time.
Regrettably, we did not have the time or resources necessary to
compile this information and analyze it. We strongly suspect that
an objective analysis that included information on this point would
do a great deal to explain what occurred on Election Day.
The Missing Dimension: The Failure
to Analyze Change Over Time
Most social scientists understand that the interpretation of social
patterns on the basis of observations at just one point in time
is fraught with peril. 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 the black population in a county 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."
All of the statistical analysis developed by Dr. Lichtman concerns
one moment in time — election day, November 2000. It is purely
"cross-sectional" analysis. Most social scientists and historians
recognize that the interpretation of social patterns on the basis
of observations at just one point in time is fraught with peril.
Relationships suggested by cross-sectional analysis often do not
hold up when one adds the time dimension, and looks back at earlier
data concerning the same phenomenon. It is curious that a professional
historian like Dr. Lichtman did not choose to place the 2000 election
results in broader perspective by examining earlier Florida elections
as well. Surely he did not think that there was no such thing as
an undervote or an overvote in Florida in the years prior to the
Bush v. Gore contest.
Dr. Lott did two analyses that take the time dimension into account.
First, he looked at spoilage rates by county for the 1996 and 2000
presidential races and asked how they might have been affected by
changes in the racial demographics of those counties.
If the majority report's simple link between race and "disenfranchisement"
were true, counties that had a sharp rise in the proportion of African
American residents would be expected to also see a strong increase
in rates of ballot spoilage, and those in which the black population
was shrinking proportionally would be expected to also have a declining
rate of ballot spoilage.
But when you look at the scatter plots in Dr. Lott's report (Figures
1-4), that doesn't prove to be the case. There appears to be 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.
For a second analysis, Dr. Lott compiled data on voting in the 1992
and 1996 as well as 2000 presidential elections. In the set of regressions
he provides in his Table 4, the "percent of voters in different
race or ethnic categories is never statistically related to ballot
spoilage." In the analysis supplied in his Table 5, which groups
voters by age and sex and well as race, he found a very complex
picture, with a positive link between the size of black population
in five of ten age and sex categories, but just the opposite with
the other five. To explain this strange pattern would require further
research. Suffice it to say here that it is hard to imagine how
discrimination could work against African American females in the
30-39 age bracket but in favor of black males of the same age.
Are
the Precinct-level Estimates Any More Reliable? And What Do They
Reveal?
The majority report
includes some precinct-level data, providing estimates based on
smaller units that are likely to be somewhat closer to the truth
than estimates based on intercounty variations. 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. In addition, 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.
We have every reason to believe that if we had been able to reanalyze
Dr. Lichtman's treatment of precinct-level data, we would have found
it just as problematic as his work at the county level. He seems
to have proceeded in exactly the same way, and to have ignored relevant
variables, just as he did in his county-level analysis. And here
too his account of what he did is too abbreviated for other investigators
to check his results adequately.
The precinct-level analysis presented in the majority report, we
have already noted, can yield mistaken and misleading results, because
it also depends upon averages calculated for geographic units and
yields findings tainted by the ecological fallacy. However, precincts
are much smaller units than counties and are probably usually more
homogeneous, so the results are likely to be somewhat closer to
the truth than estimates based on intercounty variations. The report
suggests that the precinct-level analyses Dr. Lichtman conducted
for Duval, Miami-Dade, and Palm Beach counties simply confirm the
estimates derived from county-level data. We read the results rather
differently.
If the results of the precinct-level regression analysis in three
counties are assumed to be accurate — and we repeat the caution
that they too are open to serious question — we note that they
show something quite interesting that the report ignores. They indicate
that the racial disparity in rates of ballot rejection was apparently
much smaller than it appeared from the county-level analysis.
As the table below indicates, using county-level data produces the
estimate that black ballots were nine times as likely to
be rejected as those cast by non-blacks. This estimate was given
much play in the report and in press reports about it. But when
you apply a more high-powered microscope to the election returns,
and examine the evidence as reported by precinct, it turns out that
this disparity was nowhere near nine to one. Instead, it ranged
from 2.7 to 4.3. Thus it was from 52 percent to 70 percent lower
than the statewide estimate about which so much was made in the
report.
Further, the racial disparity ratios are narrower still in the precincts
Dr. Lichtman examined as "extreme cases" — precincts that were
90 percent black (or 90 percent "non-black"). This data is noteworthy.
First, extreme case analysis should get us closer to the truth because
it gets us closer to measuring the variable of interest — in
this case, race. If almost everyone in these select precincts is
black, the problem of the ecological fallacy intrudes much less.
That the relationship of ballot spoilage with race weakens instead
of growing stronger is telling.
In addition, extreme case analysis tends to sharpen and exaggerate
estimated group differences. Blacks who live in all-black or virtually
all-black neighborhoods are likely to be poorer and less educated,
for example, than African Americans in precincts that have a broader
racial mix, and are thereby more likely to spoil their ballots.
And nonblacks who live in areas with few black neighbors may be
above average in their income and educational levels, and less likely
to make a mistake voting for that reason.
Remarkably, Dr. Lichtman managed to discuss the relationship between
his county-level and his precinct-level findings at the June 8,
2001 meeting of the Commission without ever calling attention to
these striking (and inconvenient) facts.
After mentioning the much publicized nine-to-one estimate that was
so prominently featured in the report, he declared before turning
to the precinct-level results that he didn't "like dealing with
ratios because they don't tell you about people." This is a very
curious statement, Lichtman provided dozens of estimates of the
alleged relationship between race and ballot rejection rates without
having examined a shred of evidence about the experience of any
individual person.
Instead of considering the ratio of estimated ballot spoilage
for black and non-black voters, Dr. Lichtman chose to look at percentage
point differences. The estimated difference for the state as a whole
was 12.8 (14.4-1.6); for Duval it was 18.1; for Miami-Dade it was
6.6; for Palm Beach it was 10.2. Dr. Lichtman apparently averaged
these when declared that the difference was "about 13 percent. It
was a "double digit difference," he declared. However, Miami-Dade's
6.6 percentage points is not a "double digit difference." More important,
shifting the focus from ratios (9 to 1) to percentage
point differences served to obscure a very important fact: If
precinct-level analysis yields better estimates than county-level
estimates, the actual racial disparity in rates of ballot
spoilage in Florida as a whole was probably far below nine to one,
and was likely on the order of three to one.
Whose Fault Was It? How Party
Affiliations of Supervisors of Elections Affected the Rate of Ballot
Spoilage
The majority report charges "disfranchisement" 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 elections.
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. His analysis reveals 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 Democratic 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.
A reader of the majority report would be led to think that many
tens of thousands of Floridians tried to register their vote for
president and failed to have it count because Governor Jeb Bush
and Secretary of State Katherine Harris didn't want their votes
to count and failed in their responsibility to ensure that they
did. "State officials," the report declares, "failed to fulfill
their duties in a manner that would prevent this disenfranchisement."
But which officials were responsible for the conduct of elections
in Florida's constitutionally decentralized system of government?
Power and responsibility were lodged almost entirely in the hands
of county officials, the most important of them the 67 county supervisors
of elections. If anyone was intent on suppressing the black vote
or to "disenfranchise" anyone else, it would have required the cooperation
of these local officials.
Thus it seems natural to inquire about the political affiliations
of Florida's supervisors of elections. If the U.S. Commission on
Civil Rights seeks to show that the presidential election was stolen
by Republicans, led by the governor and the secretary of state,
it would be logical to expect that they had the greatest success
in those counties in which the electoral machinery was in the hands
of fellow Republicans. Conversely, it is very difficult to see any
political motive that would lead Democratic local officials to try
to keep the most faithful members of their party from the polls
and to somehow spoil the ballots of those who did make it into the
voting booth.
The report never asks this question, though it seems an interesting
hypothesis to explore and the data are readily available. When we
examined the connection between rates of ballot spoilage across
counties and the political affiliation of the supervisor of elections,
we found precisely the opposite of what might be expected.
There was indeed a relationship between having a Republican running
the county's election and the ballot spoilage rate. But it was a
negative correlation of -.0467.
Having a Democratic supervisor of elections was also correlated
with the spoilage rate — by 0.424. If we are to take ecological
correlations seriously — and we do not — we could only
conclude that Republican local officials were far more interested
than Democrats in making sure that every vote counted.
Of the 25 Florida counties with the highest rate of vote spoilage,
in how many was the election supervised by a Republican? The answer
is zero. All but one of the 25 had Democratic chief election
officers, and the one exception was in the hands of an official
with no party affiliation.
Dr. Lott provides a fuller examination of the possible impact of
having a Democratic supervisor of elections in his Table 2, and
adds another related variable — whether or not the supervisor
was African American. Having Democratic officials in charge increases
the ballot spoilage rate substantially, and the effect is stronger
still when that official is African American. (All African American
supervisors of elections are Democrats.) Lott estimates that a 1
percent increase in the black share of voters in counties with Democratic
election officials increases the number of spoiled ballots by a
striking 13 percent.
We do not cite this as evidence that Democratic officials sought,
for some bizarre reason, to disenfranchise blacks, and that black
Democratic officials are even more eager to do so. That is manifestly
absurd. It is worth noting for two reasons. First, it nicely illustrates
the limitations of ecological correlations. Would anyone want to
draw the conclusion from this correlation that the solution was
to elect more Republican supervisors of elections?
Second, it has important bearing on the question of who is to
blame for the large numbers of spoiled ballots in minority areas.
The majority report argues that much of the problem was due to voting
technology — the use of punchcard machines or optical scanning
methods that did not provide feedback to the voter produced a higher
rate of ballot spoilage. But who decided that the voters
of Gadsden County (the state's only black-majority county and the
one with the highest rate of spoiled ballots) would use an optical
scanning system in which votes were centrally recorded? Who decided
that Palm Beach and Miami-Dade county voters would use punchcard
machines? Certainly it was not Jeb Bush or Katherine Harris. Nor
was it Lawton Chiles. It was Democratic local officials in those
heavily Democratic counties who made those choices.
It is easy, of course, to say with hindsight that Florida should
have had a uniform system of voting and a common technology for
all elections. The Commission recommends that. But if Governor Bush
and Republican legislators had proposed adopting such a system before
the 2000 election, we can imagine the outcry from their political
opponents, who would have seen such a move as an improper attempt
by the governor to control election procedures. Indeed, it might
well have been argued that such a decision would have had a disparate
impact on minority voters, since centralizing the electoral system
would have diminished the power of the Democratic local officials
they had chosen to put in office. It could even have been argued
that this transfer of power from officials who had the support of
most minority voters would be a violation of the Voting Right Act,
yet another attempt to deprive minorities of their opportunity to
exercise political power!
Why Did the Report Ignore Florida's
Hispanics and Other "Nonblack" Minorities?
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 titled "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 American
Indians 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.
The majority report speaks repeatedly of the alleged "exclusion"
and "disenfranchisement" of "minorities" or "people of color." One
section is headed "Votes in Communities of Color Less Likely to
be Counted." But what information are we actually given about all
those "communities of color"? We were amazed and disturbed to find
that the crucial statistical analysis provided in Chapter 1 is narrowly
focused on just one of the state's "communities of color"
— African Americans. The discussion completely ignores Florida's
largest minority group — people of Hispanic origin.
This is revealing of the Commission's constricted vision. The 2000
Census counted 2.3 million African Americans in Florida, approximately
15 percent of the total population. But the state had 2.7 million
Latinos, almost 17 percent of its population. Astonishingly, Hispanics
hardly get a mention in the majority report. How many Cuban-Americans
in Miami cast ballots that were "rejected"? An obviously important
question that the authors of the report never asked. They include
a few hasty references to correlations between the total minority
population of the counties and the rate of ballot spoilage. But
they provide no separate analysis at all of the state's largest
minority group, or of any other minority group except African Americans.
Indeed, the analysis conducted by Dr. Lichtman treats not only Hispanics
but Asians and Native Americans as well as if they were, in effect,
part of the majority. He dichotomizes the Florida population into
two groups, blacks and "nonblacks." The "nonblack" population includes,
in addition to whites, the 2.7 million Hispanics, and almost half
a million other residents who listed their race as Asian American
or American Indian.
A federal agency devoted to the protection of minority rights and
to the inclusion of all thus seems to have an extraordinarily narrow
and exclusive conception of who belongs in the minority population.
In this report, the Commission majority in fact has excluded
more Floridians of minority background — quite a lot more —
than it has included. Whenever the report speaks broadly about
"minorities," it must be remembered that the supporting statistical
analysis it provides ignores all minorities but blacks, and indeed
merges most Floridians of minority background into the "nonblack"
category along with the white majority.
An examination of the role of race in election procedures in the
Florida 2000 election that completely ignores the voting experience
of Hispanics, Asian American and Native Americans cannot be considered
a valid investigation. From the perspective of the majority report,
anyone who is not African American is just an undifferentiated part
of the vast "nonblack" population, which comprises 85 percent of
the total.
In presenting his findings at the June 8, 2001, meeting of the Commission,
Dr. Lichtman remarked that after he concluded his report he had
made an effort to examine the Hispanic vote. He did this the night
before the meeting.
We have just received the revised majority report, and a revision
of Dr. Lichtman's report to the commission. The statistical analysis
in the majority report still ignores Hispanics completely and retains
its simplistic dichotomy between black and "nonblack" Floridians.
It includes in an appendix one new graph produced by Dr. Lichtman
(Appendix II-F), but makes no comment on it. Dr. Lichtman's revised
report includes only one new paragraph on the subject. In sum, any
attention given to Florida's Latinos was only as an afterthought.
Part II: Anecdotal Evidence Fails
to Prove Widespread Discrimination
Based on witnesses' limited (and often, uncorroborated) accounts,
the Commission insists that there were "countless allegations" involving
"countless numbers" of Floridians who were denied the right to vote.
This anecdotal evidence is drawn from the testimony of 26 "fact
witnesses," residing in only eight of the state's 67 counties.
In fact, however, many of those who appeared before the Commission
testified to the absence of "systemic disenfranchisement" in Florida.
Thus, a representative of the League of Women Voters testified that
there had been many administrative problems, but stated: "We don't
have any evidence of race-based problems…we actually I guess don't
have any evidence of partisan problems." And a witness from Miami-Dade
County, who said she attributed the problems she encountered not
to race but rather to inefficient poll workers: "I think [there
are] a lot of people that are on jobs that really don't fit them
or they are not fit to be in."
Without question, some voters did encounter difficulties at the
polls, but the evidence fails to support the claim of systematic
disfranchisement. Most of the complaints the Commission heard in
direct testimony involved individuals who arrived at the polls on
election day only to find that their names were not on the rolls
of registered voters. The majority of these cases point to bureaucratic
errors, inefficiencies within the system, and/or error or confusion
on the part of the voters themselves.
When this report was presented to the Commission on June 8, Chair
Berry stated that "we don't need evidence" to prove the charges
of disfranchisement and discrimination. And in fact, the report
itself presents as anecdotal evidence the testimony of a handful
of individuals. The report concludes, based only on these selected
accounts, that not only were many Floridians denied the right to
vote, but that these denials fell most squarely on persons of color.
These claims are not supported by the testimony the Commission received
in Florida. The Commission heard from a total of 26 fact witnesses,
representing only 8 of Florida's 67 counties. During the post-hearing
review, local election officials provided information which discredited
significant portions of that testimony, but those corrections and
clarifications are not reflected in the final report.
Nonetheless, based on witnesses' limited (and mostly, uncorroborated)
accounts, the Commission majority insists that there were "countless"
allegations involving "countless numbers" of Floridians who were
denied the right to vote. Without verifiable and quantifiable evidence
to support its predetermined conclusion concerning charges of disfranchisement,
the majority is forced to rely on vague assertions that, "[i]t is
impossible to determine the total number of voters who were unable
to vote on election day." The report's conclusions, insisting that
our very democracy is threatened, are based not on solid evidence
supported by verifiable facts, but rather upon a thin tissue of
assertions that are contravened by direct testimony from other witnesses.
There is no question that some voters did encounter difficulties
at the polls, but the evidence does not support the conclusion that
there was a systematic attempt to deprive voters, particularly minorities,
of their right to vote.
Most of the complaints the Commission heard in direct testimony
at the two hearings involved individuals who arrived at the polls
on election day only to find that their names were not on the rolls
of registered voters. The majority of these cases point to bureaucratic
errors (a lack of proper assistance from misinformed or understaffed
poll workers); inefficiencies within the system (insufficient phone
lines to verify registration status); and/or error or confusion
on the part of the voters themselves. Some voters did not know the
location of their precinct before going to vote. Some did not bring
proper identification to the polling station. Others were confused
or uncertain about their right to request and receive assistance
or to ask for another ballot if they believed they had made a mistake.
According to the testimony of a majority of the witnesses at the
hearings, there was no "systematic disenfranchisement or widespread
discrimination" in Florida. Although the following excerpts are
either buried in the text of the report or omitted altogether, they
are representative of the testimony the Commission heard throughout
the three days of hearings:
-
Florida's Attorney General testified that of the 2,600 complaints
he received on the election, 2,300 were related to the confusing
butterfly ballot, and only three complaints concerned alleged
discrimination on the basis of race.
-
An expert on voting rights and election law, Professor Darryl
Paulson, testified that the problems in Florida were due to "a
system failure without systemic discrimination." He also testified:
"Across the United States, there were 2.5 million votes that were
not counted. And whenever you have an election system that requires
105 million people to vote essentially in a span of 12 hours,
you have created a system guaranteed to have voting problems."
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Professor Paulson later testified: "If the intent of state officials
was to discriminate against African-Americans, I would argue it
was a dismal failure. There was a record number of African-Americans
who participated in Florida's election — a 65-percent increase
in turnout from the 1996 presidential election. The 1990s have
also seen a tremendous explosion in the number of black elected
officials throughout the state. We now have a record number of
African-Americans in the state legislature [and on] city councils,
school boards, [and] county commissions. Florida now has a competitive
two-party structure that…in many ways makes it extremely
difficult for a systematic type of discrimination to occur."
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A representative of the League of Women Voters testified that
there had been many administrative problems, but stated: "We don't
have any evidence of race-based problems, well actually I guess
don't have any evidence of partisan problems."
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Florida's Commissioner of Agriculture, a designee to the Elections
Canvassing Commission, testified regarding the relationship of
voting problems to race and ethnicity: "I don't think it's a party
issue or a racial issue. I think it's a breakdown in the system."
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A witness from Miami-Dade County, who said she attributed the
problems she encountered not to race but rather to inefficient
poll workers, stated: "I think [there are] a lot of people that
are on jobs that really don't fit them or they are not fit to
be in."
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Another witness from Miami-Dade, who claimed she could not vote
because poll workers were unable to find her name on the voter
list: "In light of everything that's come out it's kind of hard
for me to say whether or not it was discriminatory or whether
or not it was just an inadvertent mistake."
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A witness from Broward County who claimed she was not allowed
to vote by affidavit because her name was not on the list of registered
voters: "I don't think it was a racial situation. [The poll workers]
were mostly white and they were still trying to help me. [The
system] was just not equipped to handle the job that we had over
there a lot of people were misinformed and were not being helped.
[I]t was like a big chaotic place over there. It was not about
a racial thing."
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