The text of the response to the Florida election report prepared by the U.S. Commission on Civil Rights follows below.  It was prepared by commissioners Abigail Thernstrom & Russell G. Redenbaugh.

The 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. 

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: 

  • 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. 
  • 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. 
  • The majority reached and released its verdict, in the form of a "preliminary assessment," long before the report was ready for discussion. 
  • 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. 
  • 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. 
  • 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: 

  1. 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 
  2. 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." 
  • 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." 
  • 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." 
  • 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." 
  • 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." 
  • 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." 
  • 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."

Part III: No Attempt to Distinguish between Disfranchisement and Problems Caused by Bureaucratic Inefficiencies and Voter Error
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, some moved polling places, and other problems, but none 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. 

Other than the "quantitative evidence" of its statistical analysis, the report claims that, "the only evidence that exists is the testimony of those who have stated publicly that they were denied the right to vote and the credibility of their testimony." However, while the first-hand accounts of witnesses were helpful in describing election-day problems, they did not point to what the majority report calls a "disturbing trend of disenfranchisement." 

The majority of those witnesses who experienced problems and who came before the Commission testified that they were ultimately able to cast their vote, despite the problems they described; a few were not. A chief flaw in the majority report, however, is that it generally fails to distinguish between problems of mere inconvenience, difficulties caused by bureaucratic inefficiencies, and incidents of potential discrimination. In this way, the complaint from the white male 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 — but was denied — assistance 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. 

For the most part, those who testified before the Commission told of problems in voting, not of being prevented from voting. The most frequent problems mentioned included the following: 

1. Inability of some poll workers to confirm eligibility status 

The report argues that in the last election, "many people arrived at their polling places expecting to cast their ballots for the candidates of their choice, but many left frustrated after being denied this right." To support this charge, the report points to "consistent, uncontroverted testimony regarding the persistent and pervasive inability of election poll workers to verify voter eligibility during the November 7 presidential election." 

It is true that the Commission heard several complaints about jammed phone lines that, in many cases, prevented poll workers from getting through to headquarters to confirm the eligibility of voters whose names did not appear on the rolls. Some voters found that their names had been left off the voting lists because of bureaucratic error and through no fault of their own. In other cases, however, many voters failed to verify the location of their assigned precinct or polling place before going to vote on election day. Others failed to notify their elections board of a change in address. Some neglected to bring the necessary proof of eligibility to vote, and still others did not correctly fill out their mail-in applications through "motor voter" registration. The high turnout of voters, many of them first-time voters, only exacerbated the difficulties that arose on election day. 

Neither voters nor poll workers testified that the problems they experienced amounted to widespread disfranchisement in Florida. In fact, according to researchers at the Miami Herald, some poll workers who struggled with insufficient phone lines admitted that they erred on the side of including, rather than excluding voters. In other words, when they were unable to get through to headquarters, they found it easier to go ahead and let people vote, rather than challenge their credentials. 

What we learned in Florida was that all of these factors can contribute to an overloaded communications system on election day, and that there is no substitute for greater voter awareness and better trained elections staff to handle inquiries. 

2. Polling places closed early or moved without notice 

The Commission received no evidence that this was more than an insignificant problem. There is absolutely no evidence upon which to conclude, or even suggest, that there was a pattern of closings or movement designed to disenfranchise voters. One county supervisor testified that in some cases there are urgent reasons for moving a polling facility — i.e., there was one facility that had burned down on the Saturday before election day — but that the public is notified of the change. The Palm Beach County supervisor testified that, "Nobody has come to me to give me specifics on which precinct they were turned away from so that I could do the investigation to see what exactly happened." 

The Commission did hear testimony from one poll worker about a gated community where the gates had shut automatically at 6:15 p.m. and had to be reopened by police officers. The Palm Beach supervisor asserted that this incident was "never reported" to her but that it did not seem likely given that the facility in question was located at a water works facility that would have had a government staff person there to open the gates. As the supervisor explained, "I've heard many people tell me things and then I asked them whether they themselves experienced it and they said, no, they heard it from somebody else. And I wonder if this person [the witness about the gated community] actually experienced that themselves." 

In a letter to the General Counsel during the affected agency review, David Leahy, the Supervisor of Elections for Miami-Dade refutes the testimony of several witnesses, including one (Felix Boyle) who insisted that his voting place had been changed without prior notice. After investigating this matter, Mr. Leahy affirms in his letter that: "Felix Boyle stated that the polling place for Precinct #36 was in a different building than was used in the 2000 primary election. The same building was used for both elections." Ignoring this rebuttal altogether, the report continues to include Mr. Boyle's testimony as an example of "polling places moved without notice." 

If the Commission had been truly interested in the important issue of uniform polling-place hours, it might have made more than a single, passing mention of one of the more widely-publicized problems that emerged during the last election: the announcement by all five television networks at 7:00 p.m. Eastern time that the polls in Florida had closed, when the polls in the Panhandle counties were still open for another hour. There is no way of knowing exactly how many voters were discouraged from going to the polls because of this misinformation, but testimony before Congress from a number of poll workers and inspectors indicates that the network poll-closing announcement did have a sizeable impact on voter turnout in the panhandle. The majority's willingness to overlook such issues is consistent with its objective of reaching a predetermined conclusion. Any evidence that might tend to support a different conclusion or support the legitimacy of the election outcome is to be excluded or given only the most perfunctory treatment. 

3. Accessibility issues 

Some of the most compelling and direct testimony in Florida were those accounts regarding the problems of accessibility for disabled voters. Although the disabled voters who testified before the Commission claimed that they themselves ultimately voted, they described a range of problems facing the disabled on election day, including insufficient parking, inadequate provision for wheelchair access, and other difficulties involving ballots and voting technology. The barriers they described appear to constitute a long-standing problem that was not just confined to Florida or to this presidential election. It is unfortunate that the report does not examine the ongoing efforts of Florida state officials Governor Bush's ADA working group and a task force working under the Secretary of State to address these concerns. 

In the same chapter on "accessibility issues," the report addresses allegations that an "overwhelming number" of Haitian-American voters, "many Latino voters," and "many persons who were not literate" were "denied adequate assistance" in casting their ballots. Here, the discussion of accessibility problems is much less clear. Much of the testimony from advocacy groups was speculative and based on second-hand, anecdotal information. 

For instance, the Commission heard from a representative of a Haitian-American advocacy organization in Miami-Dade that, in addition to the problems of long lines and understaffed polling facilities, there were problems regarding a lack of bilingual ballots. However, few details were presented to help gauge the extent of this problem, and no attempt was made to properly investigate the seriousness of these alleged problems. 

When the Miami-Dade County supervisor was questioned about the allegations of the earlier witness, he referred to a county commission ordinance that requires the supervisor to determine which precincts have a significant Haitian American voter population and to provide bilingual ballots in those precincts. He testified that, for purposes of the November 2000 election, he determined there were 60 precincts with a significant Creole population. In addition to providing bilingual ballots, Miami-Dade also did sample ballots in English and Creole and publicized those in Haitian-American newspapers. The Miami Dade supervisor maintained that the earlier witness might be in a precinct that did not have a significant Haitian American population. The report makes no attempt to clear up this confusion. 

4. "Motor Voter" Problems 

The report asserts that "[m]any Floridians alleged that they registered to vote through the Department of Motor Vehicles (DMV) and learned later that they were not registered. Many of these disappointed citizens filed complaints with the attorney general's office and/or the Democratic Party." The allegation here appears to be that Republicans in Florida somehow engineered a "motor voter" conspiracy, even though there is no evidence to support that claim. The report itself points out that, according to the testimony of the director of the Division of Driver Licenses, problems often arose because voters failed to complete their motor/voter applications correctly and/or in a timely manner. References to one such individual were stricken from the report when the affected agency's responses determined that this individual had submitted an incomplete registration form. The report does not explore the concerns of "motor voter" critics that, instead of excluding voters, the "motor voter" system frequently tends to err on the side of letting voters vote when in fact they may not be eligible. 

5. Confusing Ballots 

Although some witnesses testified about the confusion caused by the "butterfly ballot" in Palm Beach County, no evidence was presented that the butterfly ballot was targeted to particular groups, as the Commission originally suggested in its "preliminary" report of March 9. During the hearings, the Commission heard varying accounts regarding "defective" ballots. A rabbi from Palm Beach County testified that when he spoke with a group of 500 people within his congregation in Palm Beach County, about 20 percent complained that they had problems with the butterfly ballot ("their arrows did not line up with the holes"); the rest of the group experienced no such problems and "simply laughed." 

The supervisor of elections for Palm Beach County supervisor later testified that, in some cases, it appeared that voters using the butterfly ballot failed to properly line up the ballot in the voting machine. The supervisor also explained that certain community groups may have mistakenly instructed voters to "punch the second hole" for Gore "when he was not the second hole; he was the third hole." Others had been told to "vote for Lieberman," but "[i]f they followed the line where Lieberman's name was, it punched another hole down because the President and Vice President are grouped together." 

The supervisor also testified that, "In Palm Beach, sample ballots were sent out to all registered voters," and she contested earlier charges regarding defective ballots. She explained that she herself had never been alerted to or received any complaints about the actual card not fitting into the machine: "The ballot cards are all purchased from the same company and they're all printed at the same time. They all come off the same press. They're all printed on the exact same size paper. You've got the candidate's name, the arrow pointing to the number and then the hole if you follow straight across then you'll hit the hole." 

Appearing before the Senate Rules Committee on March 14, Dr. Stephen Knack, testified that many of the problems affecting the largest numbers of voters in Florida were the product of good intentions gone awry and were not inherently related to questions of technology. In Palm Beach County, the major problem was a ballot designed to be printed in large type for the benefit of older voters. In Duval County, a major problem was faulty instructions to voters by party workers, which were provided with the intention of reducing roll-off in contests farther down on the ballot. The biggest problem for all kinds of ballots was the fact that, as the report explains, there were ten candidates on the ballot for President, compared with only three or four in previous years. 

Another significant issue, which the report virtually ignores, concerns the problems that occurred as a result of the high turnout of first-time voters, many of whom received faulty how-to instructions from the very groups that urged them to vote in the first place. As Isiah Rumlin, head of the NAACP in Duval County, recently stated: "We didn't do any voter education. We didn't know we needed to. In retrospect, we should have done a better job." 

As a result of the election-day confusion in Florida and many other states, there is a new emphasis on voter education initiatives and the role that can be played by advocacy groups and community organizations. In Broward County, for example, the supervisor of elections, Miriam Oliphant, has launched a program to involve local churches in the efforts to better educate voters, recruit new ones, and prevent many of the difficulties that occurred during the 2000 election. By stressing litigation rather than education, the majority report is heading in the wrong direction. 

Part IV: The Majority Report's Warped Interpretation of the Voting Rights Act
The report comes close to concluding that election procedures in Florida were in violation of the Voting Rights Act, but the Commission cannot reach such a conclusion 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. 

The majority report argues that election procedures in Florida violated the Voting Rights Act, but that conclusion depends upon bending the 1965 statute totally out of shape. 

In 1982, as the report correctly states, Section 2 of the Voting Rights Act was amended to allow minority voters to challenge any method of election on the ground of discriminatory "result." In this amended provision, a method of election is said to have a discriminatory impact when minority voters have been found to have "less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." 

The majority on the Commission does not (and cannot) find Florida in violation of the Voting Rights Act; by law, only a court could draw such a conclusion. But it strongly implies that it has proven just that, claiming that the Act was violated by the use of older, less reliable voting machinery in the poorer districts; by the disproportionately high number of spoiled ballots in counties with substantial minority populations; and by the use of the state's "purge list" of felons who are ineligible to vote. 

The "Less Reliable Voting Machinery" Issue
The less-reliable machinery argument — which gained mythic proportions in the press — has been widely disproven. It is simply not the case that poorer counties with larger minority populations have substantially inferior voting equipment that is significantly more prone to error. At worst this is a minor factor in voter error rates. 

In fact, as the Commission heard in Florida, the punch-card jurisdictions did not have the highest "spoilage" rates. The "optical central" system had the most problems — that is, the system using optical scanners with votes counted at some central location rather than in the local precinct. (Thus, the county with the highest spoilage rate, Gadsden County, used the optical central tabulation system, not the infamous punch-card machines.) And the "touchscreen" system has been found to have a spoilage rate as high as punch-card systems. 

The Commission heard a number of complaints about punch card voting machines, but these were used in many different locations throughout the state, in both poor and affluent districts, from Duvall County to Palm Beach. Testimony from expert witnesses on voting technology did seem to point to a correlation between minority populations and "drop off" rates ("drop off" being the difference between the numbers of people who went to the polls and the numbers of ballots that recorded no vote for certain offices), but not a clear or consistent correlation between technology and minority populations. 

A January 2001 study by Professor Stephen Knack of the University of Maryland and Professor Martha Kropf of the University of Missouri (Kansas City), like other recent, authoritative studies, also challenges the "widespread perception that counties in Florida and elsewhere with a greater percentage of minorities and poor people were more likely to employ antiquated voting machinery that produces a disproportionate number of undervotes and invalid ballots." The Knack & Kropf study found "little support for the view that resource constraints cause poorer counties with large minority populations to retain antiquated or inferior voting equipment. In most states, it is whites, the non-poor and Republican voters who are more likely to reside in punch card counties rather than African Americans, the poor and Democratic voters." 

There is, however, a larger problem with this whole analysis.  Even if the spoilage rate data were accurate, the Commission's allegations of Voting Rights Act violations would be close to indefensible. 

Section 2 of the Voting Rights Act of 1965
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 point of the Voting Rights Act was always to provide remedies for voters who were "isolated within a political system… 'shut out,' i.e. denied access… [without] the opportunity to participate in the electoral process," as a distinguished civil rights attorney who helped draft the amendment stated at the 1982 hearings. 

Under Section 2, plaintiffs need not find a smoking gun--clear evidence of discriminatory intent. Nevertheless, the Judiciary Committee's list of "factors" to which courts were to refer in judging the merits of a Section 2 suit were clearly intended to help judges identify those situations in which either a history of discrimination or ongoing racism had left black and Hispanic voters at a distinctive disadvantage in the electoral process. Racism is still the issue in a "results" test. And yet the Commission's majority report failed to produce a shred of evidence suggesting an electoral process infected with racial animus. 

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--constitute Section 2 violations. 

Voters have the right to equal access to the voting booth, and to have their ballots treated equally once they are cast, but the responsibility for deciding to register, to go to the polls, and to cast a valid ballot remains with the voter in America. Some countries compel their citizens to vote, which would be the only way of creating uniformly representative turnout rates; America, thankfully, does not. 

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.  

In fact, many of Florida's African American voters in the 2000 election were first-time voters, so it is not implausible to assume that many of them may have been unfamiliar with voting procedures, and consequently were more likely to commit errors in voting that would have "spoiled" their ballots. Such errors would not be the result of discrimination; they would simply be errors. The true test of discrimination is whether voters of equal ability--equally literate, and equally experienced with voting procedures and equipment--but of different races were equally able to exercise their right to vote. 

The Commission's report offers no evidence that middle class, educated black voters made ballot errors at a rate higher than their white neighbors. And if a disproportionately high number of voting errors among low-income and poorly educated blacks constitutes "disfranchisement"--a violation of voting rights--then most jurisdictions in the nation with a minority population would have long ago found themselves in court fighting charges of discrimination. 

That is not what the framers of Section 2 envisioned. The concern, the Senate Judiciary Committee informed members of Congress in 1982, was solely with those settings in which "racial politics play[ed] an excessive role," dominating the electoral process. 

There is a reason why, in contrast to Section 5 in the Act, Section 2 requires a trial in a federal court. Section 5 claims can be settled in the Justice Department itself, through the process of administrative review. That is because they pose simpler questions--namely, whether a new election procedure or practice is clearly intentionally discriminatory, or whether its impact is such as to leave minority voters worse off than they had been. A typical Section 5 question would thus be: Are newly drawn redistricting lines likely to result in fewer black officeholders than before?  

Section 2, on the other hand, demands an inquiry into the complex issue of racial fairness. Adjudicating competing claims about equal electoral opportunity, as the Supreme Court has noted, requires an "intensely local appraisal"--the specific, detailed knowledge that only a court can obtain.  And it demands the chance that only a trial can provide for the challenged jurisdiction to answer the charges. As the Chair herself has conceded many times 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 whether violations of the Voting Rights Act have actually occurred, in fact it unequivocally claims to have found "disenfranchisement," under the terms of the statute. 

The Commission's findings are likely to inspire some people to call for federally-mandated election procedures of one sort or another. This would be a grievous error. The architects of the Constitution left matters of suffrage almost entirely in state hands, although subsequent Amendments prohibited a poll tax and denial or abridgment of the right to vote on account of race, gender, or age (after eighteen). It is true that in 1965 the Voting Rights Act broke with constitutional tradition, but that was a uniquely draconian response necessitated by the persistent and egregious infringements of basic Fifteenth Amendment rights that pervaded the Jim Crow South. 

None of the Commission's findings depict a national emergency in any way resembling that in 1965. Florida itself (unlike the states of the Deep South in the 1960s) has readily acknowledged the need for reforms to its voting procedures, and has already acted to remedy problems evident in the November election. State action is appropriate; federal intrusion is not. 

Part V: The Unfair and Politicized Attack against Florida's Public Officials
The report holds Florida's public officials, including 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," is asserts. In fact, most of the authority over elections in Florida resides with officials in the state's 67 counties, and many 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. But the county supervisors are independent, constitutional officers who make their budget requests to the Boards of county commissioners. 

The majority report makes no attempt to conceal its politicized attack against Florida state officials. The report asserts that "State officials failed to fulfill their duties in a manner that would prevent this disenfranchisement," and calls on the U.S. Department of Justice to "institute formal investigations... to determine liability and to seek appropriate remedies." 

The charges the majority has directed against the Governor and the Secretary of State and other officials in Florida are particularly disturbing. The Commission's interrogation in Tallahassee (during which the Governor was the only witness during the entire set of hearings to be denied the opportunity to make an opening statement) suggested a Catch-22: The governor and other state officials would have been faulted if they had been too involved in the running of the presidential election; now they are judged to be derelict for their deference to proper local authorities. 

The majority report admits that it found no "conclusive evidence" of a state-sponsored conspiracy to keep minorities from voting. But as several independent observers have pointed out, this is malicious and misleading phrasing, since there was in fact no evidence whatsoever of a conspiracy at all, conclusive or otherwise. 

Contrary to what the majority has asserted, state and local officials have clearly and forcefully refuted the serious allegations the Commission has made against them. 

The testimony in Florida clearly explained and delineated the delegation of authority and decentralized responsibility for elections, under Florida's constitution. Testimony from all the public witnesses with jurisdiction over these matters provided no evidence of criminal misconduct in connection with the Florida 2000 elections. Testimony also revealed the seriousness accorded to the work of the Governor's bipartisan task force on election reform. Ignoring all of this available evidence the Commission insists that Florida state officials are guilty of "gross neglect" in fulfilling their responsibilities regarding election matters. By so doing, the majority again violates fundamental concepts of due process. Not only are its conclusions not based upon evidence contained in the record of the hearings, they are in direct conflict with the testimony of the witnesses who were most knowledgeable about such matters. 

The report refuses to accept a key point that emerged in testimony during the hearings--that the elections supervisors are "independent, constitutional officers." That is why, as a recent piece in The Economist ("Unfair, Again," June 9, 2001) points out, "laying so much blame on the governor and secretary of state is unrealistic." The article goes on to explain that, "Most of the key decisions were made in Florida's 67 counties rather than in Tallahassee," and, "Many of the counties with the highest number of voter errors were under Democratic control." 

The majority report criticizes Governor Bush for having "apparently delegated the responsibility" for the conduct of the election, even though that is precisely what Florida law provides. The Secretary of State is criticized for having taken a "limited" role in election oversight that is in sharp contrast to the position she took before the Supreme Court" in Bush v. Gore. The majority report fails to explain, however, that Bush v. Gore (which addressed the issue of "recounts" and the certification of the results of the election) had nothing to do with the authority of county officials as to how the elections are run on the local level in Florida. The report glosses over the inconvenient fact that, under Florida law, Governor Bush has virtually no authority over the voting process, and the Secretary of State's role is mainly to provide non-binding advice to local officials. 

The report's central theme--that the governor and other officials are to be blamed (and investigated) for not having taken full responsibility for all of the problems that occurred during the Florida election--is contravened by the arbitrary way in which these same officials were treated by the Commission's own general counsel. 

On June 8, when questioned as to why state officials were given only portions of the report to review, the general counsel explained that, "we selected the portions that are relevant... based on activities and responsibilities." The general counsel went on to say that, "we just thought it would be a bad idea [to send the full report] because there are responsibilities and activities that don't pertain to the governor's office.…" In light of the fact that the general counsel sent the governor only about 30 pages of a 200-page report, he himself must have considered the governor's activities and responsibilities to be quite limited indeed. 

It is also ironic that the Chair chose to berate Secretary Harris during the Tallahassee hearing for not having assumed more responsibility for the problems that occurred on election day. At the hearing, the Chair explained that, even though this Commission delegates to the staff director the authority to run the day-to-day operations of the Commission, she herself--as Chair--must assume ultimate responsibility for everything that happens at the Commission. That explanation stands in stark contrast to the statements issued by the Chair in the wake of the unauthorized leak of this report, when the Chair asserted that she was "only one vote" on the Commission. 

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. 

One expert who has studied voter turnout and participation for 25 years testified that, "The Florida turnout was not particularly high"--only 2.2 percent over 1996. Several supervisors of elections testified that the highest turnout occurred in 1992 (which had an 80 percent turnout compared to the 64 percent turnout in 2000). 

Other experts pointed to the 65 percent increase in African American voters and the fact that 40 percent of the African American voters who turned out were first-time voters, but characterized these as "unanticipated events." The Palm Beach County supervisor stated, "I don't think I was aware of how much larger the African American community's turnout was until really at the end of the election evening when we looked at the precincts as [the results] came in." 

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. It fails to mention the Commission also learned that, under Florida's Constitution, requesting and allocating resources is a local responsibility, one which belongs to the supervisors of elections. The county supervisors are independent, constitutional officers who make their budget requests to the Boards of county commissioners. It is up to the county commissioners to approve or reject those requests, and there is currently no process for appealing to the Florida cabinet. The majority of the supervisors of elections who came before the Commission testified that they themselves did not request additional resources prior to the election but, that even if they had, such a request would have properly been directed to their county commissioners, not to the governor or to the Division of Elections. 

Part VI: 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." Undoubtedly that is true; a higher proportion of blacks have been convicted of felonies. 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 are twice as likely as blacks to be placed on the felon 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 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 who were in fact ineligible would not have been found without the list. 

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 involving the country in a variety of jurisdictions, serious questions about voter fraud have been raised. 

Despite the majority report's extensive examination of the so-called "purge" list of alleged felons, there is no evidence of any discrimination resulting from distribution of the list, nor is there any evidence of any systematic attempt to disenfranchise black voters or any group through the use of this list. While insisting that "countless voters" were "deprived of their right to vote" as a result of the list, the report contradicts its own findings: Although the Commission record reflects that certain supervisors of elections registered general complaints regarding the use of the exclusion lists, the record does not reflect that the Division of Elections office "was flooded with specific examples of Floridians erroneously identified as felons." Indeed, as Dr. Lott report shows, whites were twice as likely as balcks to have been placed on the list erroneously. 

At the hearing in Miami, the Commission received testimony from DBT/Choicepoint, Inc., the data-base company which provided the state with a over-inclusive list of individuals who might be convicted felons, registered in more than one county or even deceased. The compilation of the list was part of an anti-fraud measure enacted by the Florida legislature in the wake of Miami's 1997 mayoral election, in which at least one dead voter and a number of felons cast ballots. 

The Commission heard from DBT that approximately 3,000 to 4,000 non-felons (out of approximately 174,000 names) were mistakenly listed on this so-called "purge" list provided to the state. The list identified 74,900 potentially dead voters, 57,770 potential felons, and 40,472 potential duplicate registrations. Under Florida law, the supervisors of elections were required to verify the ineligible-voter list by contacting the supposedly ineligible voters. Some supervisors who were concerned about the unreliability of the list did not use it to remove a single voter, but the majority report made no effort to determine how many of the 67 supervisors of elections did or did use the list. According to recent studies, the total number of wrongly-purged felons was 1,104, including 996 convicted of crimes in other states and 108 who were not felons. This number contradicts the Commission's claim that "countless" voters were wrongly disenfranchised because of inaccuracies in the list. 

Most notably, the Commission did not hear from a single witness who was prevented from voting as a result of being erroneously identified as a felon. One witness did testify that he was erroneously removed from the voter list because he had been mistaken for another individual on the felon list whose name and birth date were practically identical to his. However, he was able to convince precinct officials that there had been a clerical error, and he was allowed to vote. 

In pursuing its attack on the purge list, the Commission completely ignored the bigger story: Approximately 5,600 felons voted illegally in Florida on November 7, approximately 68 percent of whom were registered Democrats. On June 8, General Counsel Hailes was asked why the report failed to address the issue of ineligible voters who cast ballots on election day. His response was: "That's not part of the scope of our report." 

Based on extensive research, the Miami Herald discovered that, "[a]mong the felons who cast presidential ballots, there were "62 robbers, 56 drug dealers, 45 killers, 16 rapists, and 7 kidnappers. At least two who voted were pictured on the state's on-line registry of sexual offenders." According to the Herald, the biggest problem with the felon list was not that it wrongly prevented eligible voters from voting, but rather that it ended up allowing ineligible voters to cast a ballot: 

Some…claim that many legitimate voters "of all ethnic and racial groups, but particularly blacks" were illegally swept from the rolls through the state's efforts to ban felons from voting. There is no evidence of that. Instead, the evidence points to just the opposite, that election officials were mostly permissive, not obstructionist, when unregistered voters presented themselves. (Miami Herald Report, p. 105) 

The Palm Beach Post conducted its own extensive research into the problems with the flawed exceptions list. The Post's findings, which corroborate the major conclusions of the Herald's investigation, include the following: 

  • Controversy aside, most of the people the state prevented from voting probably were felons. 
  • Of the 19,398 voters removed from the rolls, more than 14,600 matched a felon by name, birth date, race and gender. 
  • More than 6,500 were convicted in counties other than where they voted, suggesting they would not have been found by local officials without the DBT list. 
  • Many of these felons were convicted years ago, and they had no idea that they did not have their civil rights [to vote]. 
  • Many had been voting and unwittingly breaking the law for years.

(Palm Beach Post, "Felon Purge Sacrificed Innocent Voters," May 27, 2001) 

With respect to the majority report's claim that the DBT list had a "disparate impact" on minority voters, there is no way to determine how many of those listed, either accurately or in error, were minorities. As DBT testified, the list was not coded by race or ethnicity. Any assumption about the race of voters improperly Included on the "purge" list is purely speculative. 

The majority report uses Miami-Dade as a "vivid example" of the problems with the list, but there is no clear evidence of how many voters in Miami-Dade were wrongly prevented from voting because of the list. The report concludes that "almost 1 out of 7 names" on this [Miami-Dade] were there in error, and risked being disenfranchised [emphasis added]." But this is pure speculation. The report later adds that, "[b]ased on the experience in Miami-Dade County, "it appears [emphasis added] as if African-Americans are more likely than whites and Hispanics to be incorrectly placed on the convicted felons list." 

The problem with this analysis is that, in order to make the "disparate impact" claim, the report centers on the discrepancy between the population and the percentage of persons of color affected by the list. But the proper comparison is not with population percentages but rather with the percentage of convicted felons in the state. In Florida, blacks make up approximately 11 percent of the population, 44 percent of those on the list, and 49 percent of convicted felons in Florida. Yet after presenting its spurious analysis of "spoiled ballots" and the speculation regarding the felon list, the report sums up by saying "there is a strong basis for concluding that Section 2 of the Voting Rights Act of 1965 has been violated." 

The report's message is that nobody in authority did enough in terms of data verification. But the Commission itself has failed to verify key arguments it makes in this report. The letter (submitted per the affected agency review) from Michael R. Ramage, General Counsel for the Florida Department of Law Enforcement, provides a lengthy clarification of the FDLE's role in verifying the felon status of voters whose names had been forwarded by the local supervisor. (Note that, according to Mr. Ramage's letter to Mr. Hailes, the FDLE was allowed to review only three pages of the 200-page report, despite the prominence the report gives to this controversial issue.) In his letter to General Counsel Hailes, dated June 6, 2001, Mr. Ramage maintains that the Commission's findings are "wrong and based on erroneous assumptions," and places undue emphasis on "anecdotal examples of problems." His letter later goes on to detail FDLE's efforts regarding verification of the "exceptions" list: 

[I]t is important to note that during the pertinent time frame, FDLE responded effectively to nearly 5,000 voters whose names matched those of convicted felon's in Florida's criminal history records. (It is not unusual for criminals when arrested to use a name, date of birth, address, social security number, etc., other than their own.).… A number of those who believed they had been wrongfully identified as not being able to vote were ultimately found to be incorrect. They were, in fact, not eligible to vote. Likewise, a number of those who raised a concern were ultimately found to be eligible to vote. The process worked to resolve issues. Of those voters who contacted FDLE to appeal the notice from a local supervisor of elections that they were ineligible to vote, approximately 50 percent were confirmed to be Florida convicted felons, and 50 percent were determined not to have a conviction in Florida for a felony. 

While the General Counsel on June 8 indicated that some revisions would be made to acknowledge the "extraordinary efforts" by the FDLE, no revision has been made in the conclusions, which are still wrong and based on erroneous assumptions. Certainly, no eligible voter should be wrongly prevented from doing so, but at the same time, election officials have a compelling interest in preventing voter fraud by convicted felons. The Commission majority has failed to look at all the facts regarding the felon list and, instead of focusing on what it calls "the reality" of list maintenance, uses anecdotes to call for an extensive and unwarranted investigation by the U.S. Department of Justice. 

There is also the additional question of voter fraud. On June 8, the Chair explained that the report did not look at the issue of voter fraud, since "fraud does not appear to be a major factor in the Florida election," and that, in any event, this was "beyond the scope" of the Commission's investigation. Thus, the report single-mindedly pursues only one kind of vote dilution (allegations that eligible voters were denied the tight to vote) while completely ignoring the other (allegations that ineligible voters were allowed to vote). 

Only in the report's introduction is there a brief mention of Complaints of Voter Fraud, "listed along with the Western Florida Time Zone Controversy and Absentee Military Ballots as "other factors" that "could have contributed to voter disenfranchisement in Florida." (In other words, the main concern is with voting irregularities that could be interpreted as having a disparate impact on Democratic voters. Factors that one could surmise might have had a disparate impact on Republican voters are simply shoved aside.) The report then goes on to explain that, "[w]hile recognizing that the above factors do raise concerns of voting irregularities, the Commission did not receive many complaints or evidence during its Tallahassee and Miami hearings pertaining to how these issues created possible voter disenfranchisement in Florida." 

This explanation is disingenuous and incorrect. First of all, at the Commission's meeting of December 8, 2000, when the Commission reached its decision to conduct an investigation of the Florida election, there was lengthy discussion of the Commission's statutory responsibility to investigate "any patterns or practice of fraud." Chair Berry herself explained that "if there are people who engaged in fraud or violated the laws, we would hand them over for prosecution." The Chair assured Commissioners that, "[e]very single allegation should be systematically pursued." 

Second, if the Commission "did not receive" evidence regarding fraud, it is because, contrary to the Chair's assurances in December, it chose not to seek any testimony on the widely-publicized allegations of fraud. Given the report's emphasis on the so-called purge list, this is an egregious omission. 

Following the November elections, specific allegations of voter fraud surfaced in a number of cities and states. For example: 

  • A grand jury in St. Louis has been investigating 3,000 suspect voter registration cards, including some for dead local officials and even a pet. 
  • In Philadelphia, the number of the city's registered voters almost equals the number of eligible voters who live in the city according to census estimates. 
  • Allegations of vote fraud in Milwaukee prompted an investigation into reports that out-of-state volunteers from one political party supplied packages of cigarettes to homeless people in exchange for their votes. 
  • The names of more than 15,000 dead people were found on Georgia's active voting rolls. 
  • In Indiana, as many as one in five voter registrations were found to be bogus.

In Florida, there were various reports regarding thousands of ballots cast by ineligible felons and unregistered voters, fraudulent absentee ballots in nursing homes, and precincts where more ballots were cast than the number of people who voted. It is unconscionable that the Commission has made no serious effort to look at these problems. 

Part 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 majority 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. This is a serious charge. 

In fact, only two persons are identified in the majority report regarding their perception of activities of the Florida Highway Patrol on election day. One testified about 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. 

As the chief of the Florida Highway Patrol, Colonel Charles C. Hall, testified in Tallahassee, there was one motor vehicle checkpoint, in Leon County, on election day. That checkpoint was not adequately authorized and resulted in one complaint. The equipment checkpoint operation lasted about 90 minutes (between 10:00 a.m. and 11:30 a.m.) and occurred more than two miles away and on a different roadway from the nearest polling facility. Of the approximately 150 cars stopped at the checkpoint, a total of 18 citations or notices of faulty equipment were issued to 16 different individuals, 12 of whom were white. The citizen who lodged the complaint testified that she had contacted the NAACP after she returned from voting, yet refused to meet with the FHP to assist their investigation. Despite this one, highly publicized incident, there has been no evidence whatsoever of police intimidation of voters. 

Writing in response to the affected agency review, the general counsel for the State of Florida's Department of Highway Safety and Motor Vehicles, Enoch J. Whitney, stands by the evidence presented by Colonel Hall at the hearing: 

Colonel Hall's testimony conclusively demonstrates that there was no intent by members of the Florida Highway Patrol to delay or prohibit any citizen from voting on Election Day. All pertinent evidence shows that in fact no one was delayed or prohibited from voting by virtue of the equipment checkpoint operation. 

The Commission majority's willingness to perpetuate a gross misperception of this issue is a disservice to the public's confidence in America's electoral and law enforcement systems, and an insult to the dedicated officers of Florida's law enforcement community. 

Part VIII: Procedural Irregularities on 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. 

In writing this report, the Commission majority has ignored not only the rules of evidence, but the agency's own procedures for gathering evidence. The procedural issues are important to the extent they relate to the policy and politics driving this report. By pretending to investigate procedural irregularities while engaging in procedural irregularities of its own, the Commission majority undermines its credibility and diminishes the value of its work. By arguing that "every voice must be heard" while in fact stifling the voice of others, the Commission is guilty of gross hypocrisy. The majority report claims the election was marked by "injustice, ineptitude and inefficiency," yet it has tarred itself with its own feather in this report. 

Republican and Independent Commissioners were never asked if they would like to call witnesses. Hearings were completely controlled by the Chair and the General Counsel, and Commissioners did not even know who the witnesses were to be at one Miami hearing; thus they could not properly prepare questions. 

When the hearings failed to provide any evidence of widespread voter disfranchisement, the Chair unilaterally approved a last-minute procurement of the services of an outside "statistician," Professor Allan Lichtman. Commissioners were never asked to approve this contract, nor were they contacted regarding any suggestions they might have for additional or alternate experts. Over the objections of the two dissenting Commissioners, the Chair now also proposes that Dr. Lichtman be tasked with producing an analysis of their dissent. No outside expert has ever before been asked to produce such an analysis, let alone have that analysis attached to the final report. 

1. Failure to follow statutory requirements for fair and objective proceedings. 

Under the Commission's regulations, all proceedings are to be conducted in a fair and objective manner. During its hearings in Florida, however, the Commission failed to ensure fair, equal and courteous treatment of witnesses. The secretary of state was treated in an insulting manner, and the governor was the only witness during the proceedings who was denied the opportunity to deliver an opening statement. 

2. Conclusions issued before all of the evidence was received. 

The Commission reached its verdict long before it had even completed its review of the evidence. On March 9, the Chair introduced a "preliminary assessment" that was not shared with Commissioners beforehand and that did not provide Florida officials with an opportunity to respond to the charges against them. These procedures are sadly reminiscent of Alison in Wonderland's court of the Red Queen: "Verdict first, trial later!" 

3. Denial of "defame and degrade" review. 

Section 702.18 of the Code of Federal Regulations requires the Commission to give parties that might be defamed or degraded by its reports a chance to respond. The majority report states that "the Commission followed its procedures by conducting a defame and degrade review." It fails to state that the Commission's general counsel denied the governor's request to be given the requisite 30 days, under defame and degrade, to review the report in its entirety (instead of select portions) and the requisite 20 days to submit a "timely, verified response." The general counsel's explanation on June 8 was that there was "no statement [in the report] that would constitute defame and degrade." In light of the Chair's statement on June 8 that the governor, the secretary of state, and other state officials were "grossly derelict in fulfilling their responsibilities," the general counsel's decision appears to indicate that the Commission has been "grossly derelict" in its treatment of those who assist its investigations. 

4. Inadequate affected agency review and consideration of affected agency comments 

The report also claims that "[a]ffected agencies were afforded an opportunity to review applicable portions." The Commission's project management system normally requires at least 30 days for affected agency review, yet the governor and other officials were given only 10 days to review the report, and the report was given to the press before affected parties could respond. In an interview with the New York Times, the general counsel claimed that anyone wishing to respond to the Florida report would have 20 days to do so. Few of the affected agency comments have actually been factored into the final report. 

To compound the seriousness of these procedural improprieties, the Commission handed out copies of the draft report at the June 8 meeting and posted the draft on its web site, thereby widely disseminating a version of the report that included none of the affected agency comments or any of the corrections and amendments discussed at the June 8 meeting. 

Affected agency review is an essential procedure to ensure fairness and accuracy of Commission reports. Contrary to the Chair's statement on June 8, it is not a mere "courtesy" that is granted or denied at the whim of the Chair or the staff. In this case, the procedure was mooted by the leak to the press and the public dissemination of a preliminary, uncorrected draft. 

5. No management controls for this agency in disarray: 

A 1997 investigation by the GAO found the Commission to be an "agency in disarray" and cited, in particular, the lack of communication and effective management controls regarding the Commission's projects. Pursuant to the GAO investigation, the Commission implemented its management information system to specify timelines for completion of the Commission's work product. In the case of the Florida report, however, no clear or consistent timeline has been maintained for this project and Commissioners' inquiries to both the Chair and the staff director have been routinely ignored. 

For example, at the March 9 meeting, instead of taking up a status report on the project (as the agenda announced), Commissioners were asked to approve, without any advance notice at all, the Chair's own personal statement of preliminary findings. At the same meeting, the Chair advised Commissioners that, "in April we expect to have the draft of the voting rights in Florida, the actual draft, in front of us." In April, however, Commissioners were given only an "Outline of the Final Document" and were advised that the draft report would be considered at the June 8 meeting. At no time were Commissioners advised they would be given only three days to read the report prior to the June 8 vote. The Chair dismissed any criticism in this regard, asserting that Commissioners should have known "that we would receive it when we did receive it." 

Instead of taking responsibility for the question of agency leaks, the Chair now proposes to legitimize the premature disclosure of Commission reports, by suggesting a change in policy for Commission reports. Specifically, the Chair proposes, for future reports, "that we release the draft of the report publicly as soon as it's available without waiting [until] even when we give it to the Commissioners." Such a procedure would be totally unacceptable and an unconscionable breach of the Commission's statutory obligations. 

6. Selection of Allan Lichtman as the Commission's Sole Statistical Analyst for the Florida Report 

This claim is based entirely on a statistical analysis conducted for the commission by Professor Allan Lichtman of American University. In the pages below, we will show that a rigorous statistical analysis of the available data clearly and convincingly contradicts Dr. Lictman's alleged findings. Dr. Lichtman's conclusions are so unsupportable, however, that it is first worth pausing to discuss the Commission's selection of him as its sole statistical analyst to carry out such crucial work. 

The choice of Dr. Lichtman to carry out this work is problematic and revealing of the Commission majority's biases. When he appeared at the June 8, 2001, meeting of the commission to present his findings, he took pains to present himself as a scholar above party, who had "worked for Democratic interests... and for Republican interests." Unfortunately, he failed to mention a highly pertinent fact that appears on the American University website--that he worked as a "consultant to Vice-President Albert Gore, Jr." 

Furthermore, although Dr. Lichtman claimed (at the June 8 Commission meeting) that he began his study of possible racial bias in the Florida election with an open--indeed, even "skeptical"--mind, in fact, evidence suggests the contrary. As early as January 11, at the very beginning of his investigation and prior to conducting any detailed statistical analysis of his own, Dr. Lichtman stated publicly that he was already convinced, on the basis of what he had read in the New York Times, that in Florida "minorities perhaps can go to the polls unimpeded, but their votes are less likely to count because of the disparate technology than are the votes of whites." He concluded: "In my view, that is a classic violation of the Voting Rights Act." Long before he examined any of the statistics, Dr. Lichtman had already concluded that Florida had disfranchised minority voters and violated the Voting Rights Act. 

A social scientist with strong partisan leanings might conceivably still conduct an even-handed, impartial analysis of a body of data. Unfortunately, that is not the case in the present instance. 

Conclusion
America's journey on the road to racial and ethnic equality is far from over.  We have traveled far, and still have far to go.  But the Commission's majority report positively sets us back.  By crying "disfranchisement" where there was confusion, bureaucratic mistakes, and voter error, the report encourages public indifference.  Real civil rights problems stir the moral conscience of Americans; inflated rhetoric depicting crimes for which there is no evidence undermines public confidence in civil rights advocates and the causes to which they devote themselves. 

The U.S. Commission on Civil Rights was once the moral conscience of the nation. Under the direction of the Chair, Mary Frances Berry, it has become an agency dedicated to furthering a partisan agenda. After six months of desperately searching for widespread disfranchisement in Florida, the Commission produced a 200-page report based on faulty analysis and echoing vague and unsubstantiated claims. 

The shoddy quality of the work, its stolen-election message, and its picture of black citizens as helpless victims in the American political process is neither in the public interest nor in the interest of black and other minority citizens.    Do we really want black Americans to believe there is no reason to get to the polls; elections are always stolen; they remain disfranchised? There is important work the Commission can do.  But not if its scholarly and procedural standards are as low as those in this Florida report. 

 

1 Report, 154
2 Report, 18.
3 Report, 21. Note that later in the report, on page 148, the majority asserts that it was highly anomalous that 63 percent of spoiled ballots in Palm Beach County were overvotes, and blames the alleged anomaly on the infamous butterfly ballot. The pattern, according to the report, was "just the opposite of what we normally observe, which is five percent or less of the spoiled ballots." How could the author of this passage possibly think that 5 percent or less was the norm for overvotes in Florida when the Lichtman cited earlier reveal earlier show that fully 59 percent of all the spoiled ballots in the state were overvotes 4 Martin Merzer, The Miami Herald Report: Democracy Held Hostage (New York: St. Martin's Press, 2001), 194
5 Ibid., 195.
6 Ibid., 230-231
7 Report, 1
8 According to the Caltech/MIT Voting Project, "state and federal voting machine certifications tolerate very low machine failure rates: no more than 1 in 250,000 ballots for federal certification and no more than 1 in 1,000,000 in some states." The problem, according to these investigators, has to do with "how people relate to the technologies...." See the Caltech/MIT Voting Project, "A Preliminary Assessment of the Reliability of Existing Voting Equipment," February 1, 2001, 13.
9 Exit polls are commonly used to estimate how particular groups voted, and even they are far from perfect. One flaw is that absentee voters are not represented at all. In any event, we can't tell from an exit poll whether someone failed to complete a valid ballot; if they thought they had erred, presumably they would have had it invalidated and received another.
10 W.G. Robinson, "Ecological Correlations and the Behavior of Individuals," American Sociological Review, vol. 15 (June, 1950), 351-357.
11 D.A. Freedman, "Ecological Inference and the Ecological Fallacy," University of California at Berkeley Department of Statistics Technical Report No. 549, Oct. 15, 1999, This paper will appear as a chapter in the forthcoming International Encyclopedia of the Social Sciences.
12 Transcript of June 8, 2001 meeting, 42.
13The explanation is that immigrants tend to be attracted to the richer states--California and New York rather than Tennessee and Mississippi. Thus their presence is associated with high average incomes at the state level, but that does not mean that their average incomes are especially high.
14 D. A. Freedman, S. P. Klein, M. Ostland, and M. Robert, "On 'Solutions' to the Ecological Inference Problem," Journal of the American Statistical Association, vol. 93 (December 1998), 1518-1523.
15 Report, 21,
16 Lichtman, "Draft Report on the Racial Impact of the Rejection of Ballots Cast in the 2000 Presidential Election in the State of Florida," June 4, 2001.
17 Lott, "Issues in the Interpretation of the Statistical Evidence Employed in the Report of the U.S. Commission on Civil Rights on the 2000 Election in Florida," 3.
18 National Center for Education Statistics, Adult Literacy in America: A First Look at the Results of the National Adult Literacy Survey, National Center for Education Statistics (Washington, D.C.: U.S. Government Printing Office, 1993), 18, 113.
19National Center for Education Statistics, NAEP 1998 Reading Report Card for the Nation and the States, NCES 1999-500 (Washington, D.C.: U.S. Department of Education, 1999), 70.
20 National Center for Education Statistics, Literacy in the Labor Force: Results from the National Adult Literacy Survey, NCES 1999-470 (Washington, D.C.: U.S. Department of Education, 1999), 57.
21NAEP 1998 Reading Report Card, 260, and data from the NAEP website.
22 Report, 22; Lichtman Report, 6.
23 Report, 34.
24 CSAS website
25 Transcript of June 8, 2001 Meeting, 44.
26 Ibid, 44.
27 Report, 141
28 U.S. Census Bureau, Profiles of General Population Characteristics, 2000 Census of Population and Housing: Florida, May 2001, Table DP-1. We state that the black population was approximately 15 percent of the total because its exact size depends upon the definition you use. Some 14.6 percent of Floridians reported that their sole race was black. If you add in people who considered themselves both black and something else, the figure increases to 15.5 percent, still substantially smaller than the Hispanic population.
29 Ibid. In addition to the 2.7 million Hispanics and the 450,000 Asians or American Indians, another 697,000 Floridians reported that they were of "other race," meaning other than white, black, American Indian, Asian, or Pacific Islander. Most of these "other race" respondents were, in all likelihood, Latinos, and thus cannot be fairly added to the total excluded from attention because it would entail double counting. All Hispanics were excluded, however they answered the race question.
30 Transcript of United States Commission on Civil Rights meeting, Washington, D.C., June 8, 2001, 46.
31 http://www.american.edu/cas/faculty.shtml#HISTORY. WMA
32Transcript of U.S. Commission on Civil Rights hearing, Tallahassee, Florida, January 11, 2001, PAGE TK