U.S. Commission On Civil Rights
March 2001

The Commission has undertaken a formal investigation into allegations by Floridians of voting irregularities arising out of the November 7, 2000 Presidential election. The Commission has held two fact-finding hearings in Florida to examine whether eligible voters faced avoidable barriers that undermined their ability to cast ballots and have their ballots counted in this closely contested election. The probe is intended to uncover, for example, who made the critical decisions regarding resource allocations for Election Day activities, why were these decisions made and what specific impact these decisions had on distinct communities.

Voter disenfranchisement appears to be at the heart of the issue. It is not a question of a recount or even an accurate count, but more pointedly the issue is those whose exclusion from the right to vote amounted to a "No Count."

We emphasize that voting technology reforms and assurances that uniform and accurate standards for counting and recounting ballots shall be implemented are encouraging and significant. These measures standing alone, however, are insufficient to address the significant and distressing issues and barriers that prevented qualified voters from participating in the Presidential election. It is our hope that Florida officials, as well as officials in other jurisdictions, will promptly resolve these major problems, which they allowed to occur, instead of hoping with the passage of time the public will forget.

In total, over 100 witnesses testified under oath before the Commission, including approximately 65 scheduled witnesses who were selected for the two hearings due to their knowledge of and/or experience with the issues under investigation. The Commission heard testimony from top elected and appointed state officials, including the Governor, the Secretary of State, the Attorney General, the Director of the Florida Division of Elections and other Florida state and county officials. A representative of Database Technologies, Inc. [Choicepoint], a firm involved in the controversial, state-sponsored removal of felons from the voter registration rolls also testified.

We also heard the sworn testimony of registered voters and experts on election reform issues, election laws and procedures and voting rights. Also, the Chair and Executive Director of the Select Task Force on Election Reforms established by Governor Jeb Bush testified before the Commission. Testimony was also received from the supervisors of elections for several counties, county commission officials, law enforcement personnel, and a states attorney. In addition to the scheduled witnesses, the Commission extended an opportunity for concerned persons, including Members of Congress and members of the Florida State Legislature, to submit testimony under oath that was germane to the issues under investigation. Significantly, the Commission subpoenaed scores of relevant documents to assist with this investigation.

The evidence points to an array of problems, including those in the following categories:

• Key officials anticipated before Election Day, that there would be an increase in levels of voter turnout based upon new voter registration figures, but did not ensure that the precincts in all communities received adequate resources to meet their needs;
• At least one unauthorized law enforcement checkpoint was set up on Election Day resulting in complaints that were investigated by the Florida Highway Patrol and the Florida Attorney General;
• Non-felons were removed from voter registration rolls based upon unreliable information collected in connection with sweeping, state sponsored felony purge policies;
• Many African Americans did not cast ballots because they were assigned to polling sites that did not have adequate resources to confirm voting eligibility status;
• College students and others submitted voter registration applications on a timely basis to persons and agencies responsible for transmitting the applications to the proper officials, but in many instances these applications were not processed in a timely or proper manner under the National Voter Registration Act ("motor-voter law");
• Many Jewish and elderly voters received defective and complicated ballots that may have produced "overvotes" and "undervotes;"
• Some polling places were closed early and some polling places were moved without notice;
• Old and defective election equipment was found in poor precincts;
• Many Haitian Americans and Puerto Rican voters were not provided language assistance when required and requested;
• Persons with disabilities faced accessibility difficulties at certain polling sites;
• Too few poll workers were adequately trained and too few funds were committed to voter education activities;

The Commission's probe proceeds under the statutory duty and authority of the Commission to investigate allegations in writing under oath or affirmation relating to deprivations of the right of citizens of the United States to vote or have votes counted (PL 103-419). This investigation is also conducted pursuant to our statute which requires the Commission to investigate allegations that "citizens of the United States are being deprived of their right to vote and have that vote counted by reason of their color, race, religion, sex, age, handicap, or national origin."

In our investigation, we use as our standard the requirements of Section 2 of the Voting Rights Act for determining whether disparate impact or disparate treatment amounting to disenfranchisement has occurred. We understand clearly that violations of the Voting Rights Act do not require proof of deliberate or intentional discrimination against citizens, if differential results, disenfranchising those who the statute was designed to protect are the result. Practices can be illegal when they have the effect of restricting opportunities for people of color, language minorities, persons with disabilities, and the elderly to participate fully in the political process and to elect candidates of their choice.

The Voting Rights Act of 1965, as amended, was aimed at subtle, as well as obvious, state regulations and practices that had the effect of denying citizens their right to vote because of their race. Perhaps the most invidious barriers to the right to vote were the seemingly neutral restrictions developed by states that had debilitating and devastating results on black voter registration.

Congress has enacted additional measures to further protect the voting rights of persons of color, immigrants, the elderly, and those with disabilities from invidious discrimination. For example, an amendment to the Voting Rights Act in 1975 permanently restricted the use of tests and devices for voter registration nationwide. The 1975 amendments also include rights for language minorities, mandating bilingual ballots and oral assistance with voting. In 1983, the Voting Rights Act was amended to clarify that the proof of discriminatory intent is not required under Section 2 claims, thus making disparate impact claims valid. Congress also enacted the National Voter Registration Act after finding that "discriminatory and unfair registration laws and procedures can have a direct and damaging effect on voter participation in elections for Federal office and disproportionately harm voter participation by various groups, including racial minorities." Further, several laws have been enacted pertaining to the accessibility of the election process to persons with disabilities.

[These laws are described in an appendix to this statement].

We are deeply troubled by our preliminary review which points to differences in resource allocations, including voting technology, and in voting procedures that may have operated so that protected groups may have had less of an opportunity to have their votes counted. We will conduct complete disparate impact and treatment analyses before the report is completed, and our final conclusions will take into account the results of these analyses.

However, it appears at this phase of the investigation that the evidence may ultimately support findings of prohibited discrimination. Two particular sources of fruitful inquiry are the questionable uses of Choicepoint data and resource allocation issues. We are attempting to document whether and, if so, how long state, county and local officials knew that certain differences in resources and procedures might impact more harshly African Americans and members of other protected groups.

The staff is continuing their analysis of the voluminous testimonial and documentary evidence compiled during this investigation. Ultimately, the Commission will pinpoint whether each of the problems identified resulted from deliberate, or harmful, yet not deliberate, discrimination, or were caused by neither.

We emphasize that the implementation of voting technology reforms and uniform and accurate standards for counting and recounting ballots would be encouraging and significant. These measures standing alone, however, will not address the significant and distressing issues and barriers that prevented qualified voters from participating in the Presidential election.

In the final analysis, new recounts of old ballots are an academic exercise. Voting is the language of our democracy and regrettably, when it mattered most, real people lost real opportunities to speak truth to power in the ballot box. This must never occur again. As Dr. Martin Luther King, Jr. once stated: Social justice shall not roll in on wheels of inevitability.

It is our hope that Florida officials, as well as officials in other jurisdictions- where barriers existed, will promptly resolve these major problems that occurred on their watch.

Appendix

The most important sections of the Voting Rights Act are Section 2 and Section 5.

Section 2 of the Voting Rights Act provides:

No voting qualification or prerequisite to voting, or standard practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.

Section 5 of the Voting Rights Act outlines the federal role in election oversight by requiring federal approval of state changes in voting procedures in areas with a history of discrimination against persons of color. Section 5 is designed to prevent new forms of discrimination from taking effect that will diminish voting opportunities or rights for people of color. It also permits the Federal Government to send examiners to covered jurisdictions to ensure that registered voters are allowed to vote and that all votes are properly counted.

The Voting Rights Act has been amended since its passage to broaden its coverage and to strengthen its effectiveness. In 1975, an amendment permanently restricted the use of tests and devices for voter registration nationwide. The 1975 amendments also include rights for language minorities, mandating bilingual ballots and oral assistance with voting. In 1983 the Voting Rights Act was amended to clarify that the proof of discriminatory intent is not required under Section 2 claims, thus making disparate impact claims valid.

Also, in an effort to further protect the voting rights of all citizens, particularly members of protected groups, including persons of color, immigrants, the elderly, and those with disabilities, Congress enacted the National Voter Registration Act:

• to establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office;
• to make it possible for Federal, State and local government to implement this Act in a manner that enhances the participation of eligible citizens as voters in elections for Federal office;
• to protect the integrity of the electoral process; and
• to ensure that accurate and current voter registration rolls are maintained.

Lastly, several laws have been enacted pertaining to the accessibility of the election process to persons with disabilities:

• Section 208 of the Voting Rights Act of 1965 provides that a person of his or her choice, with the exception of his or her employer or union agent, may assist any voter who requires assistance due to blindness, disability, or illiteracy
• Section 504 of the Rehabilitation Act of 1973 requires recipients of federal funds to make their programs accessible to persons with disabilities, including state and local governments that receive funding.
• The Voter Accessibility Act for Elderly and Handicapped Persons of 1984 expressly provides for the improvement of access to registration facilities and polling places. The law requires that state election divisions assure that all polling places are accessible to the elderly and persons with disabilities or that arrangements are made for such voters to vote in accessible locations or permanent registration facilities unless the state allows for registration by mail. Finally, the law requires that states provide registration and voting aids, such as large print instructions and telecommunication devices for the deaf (TDD's).
• Title II of the Americans with Disabilities Act of 1990 prohibits discrimination by state or local entities in any services, programs, or activities, including the election process, for which state and local offices are required to ensure accessibility.

The National Voter Registration Act of 1993, except in a handful of exempted states, requires that individuals be given the opportunity to register by mail or when applying for a driver's license or public services. This specifically includes state-funded programs that provide services to individuals with disabilities.

Letter to Governor Bush from Chairperson Mary Frances Berry

March 8, 2001

Via Facsimile and U.S. Mail

The Honorable John Ellis Bush
Governor
Office of the Governor
The Florida Capitol
Tallahassee, FL 32399-0001

Dear Governor Bush:

I am writing to express my deep disappointment with your statement of priorities that was presented during the opening of the Florida legislative session, in which you did not address the most serious problems that occurred in Florida during the 2000 elections. My disappointment is based on my preliminary assessment that these problems would not be resolved even if the legislature approved your request that new technology for recording votes be acquired and put into place. Voting technology reforms are necessary and your support of them is a step in the right direction. These measures standing alone, however, are insufficient to address the significant and distressing issues and barriers that prevented qualified voters from participating in the recent Presidential election.

As you know, the Commission has undertaken a formal investigation into allegations by Floridians of voting irregularities arising out of the November 7, 2000 Presidential election. The Commission has held two fact-finding hearings in Florida to examine whether eligible voters faced avoidable barriers that undermined their ability to cast ballots and have their ballots counted in this closely contested election.

In total, over 100 witnesses testified under oath before the Commission, including approximately 65 scheduled witnesses who were selected for the two hearings due to their knowledge of and/or experience with the issues under investigation. The Commission heard testimony from top elected and appointed state officials, including your own testimony, that of the Secretary of State, the Attorney General, the Director of the Florida Division of Elections and other Florida state and county officials. A representative of Database Technologies, Inc. [Choicepoint], a firm involved in the controversial, state-sponsored removal of felons from the voter registration rolls also testified.

We also heard the sworn testimony of registered voters and experts on election reform issues, election laws and procedures and voting rights. Also, the Chair and Executive Director of the Select Task Force on Election Reforms that you established testified before the Commission. Testimony was also received from the supervisors of elections for several counties, county commission officials, law enforcement personnel, and a states attorney. In addition to the scheduled witnesses, the Commission extended an opportunity for concerned persons, including Members of Congress and members of the Florida State Legislature, to submit testimony under oath that was germane to the issues under investigation. Significantly, the Commission subpoenaed scores of relevant documents to assist with this investigation.

The evidence points to an array of problems. These problems cry out for solutions, for example, a process for insuring the equitable allocation of resources to insure that poor and or people of color areas are not disproportionately affected. They also include a better process for identifying felons who are ineligible to vote, insuring coordination between the DMV and election boards to make sure registrations are actually filed and on a timely basis, funds for better training of poll workers, improved and updated communication systems, funds for voter education, and clarifications in the law to permit provisional ballots to be cast, when appropriate. As you know, counties have uneven funding bases and priorities.

Because I believe the need to address these problems is serious, I have determined that the Commission should hold additional hearings in Florida after the conclusion of the legislative session to bring state and local officials before us to assess what changes have been legislated or enacted at the state and local level and to report to the public on what progress has been made.

I expect the Commission to formally endorse the new hearings at our meeting on March 9, 2001. We intend to keep a steady focus on these developments to ensure that the voting rights of all eligible persons are protected.

Respectfully,

Mary Frances Berry
Chairperson

Why did the US media black out the Civil Rights Commission report on the Florida vote?

March 21, 2001
By Jerry White

It would seem elementary that a report from a federal civil rights agency charging widespread voter disenfranchisement in the pivotal state of Florida during the 2000 US presidential election would be a major news item. Not so, according to the decision-makers at the US broadcast media and some of the most influential newspapers.

Twelve days ago the US Commission on Civil Rights issued the preliminary findings in its probe of the Florida election, declaring it had found evidence suggesting voting rights violations by state officials. The commission chairwoman, Mary Frances Berry, reported that, among other irregularities, state officials used an inaccurate database knowing that it would wrongly identify as convicted felons thousands of legal voters, who were then purged from the state's voter list. (See our report: "US Commission on Civil Rights charges voter disenfranchisement... at heart of Bush victory in Florida)." www.wsws.org/articles/2001/mar2001/vote-m10.shtml)

The commission's report did not name the "key officials" who it said were responsible. But from the evidence the commission presented, one could only conclude that President George W. Bush's brother, Florida Governor Jeb Bush, along with Secretary of State Katherine Harris and other Republican officials, intentionally acted to make certain that likely Democratic voters would face obstacles casting their ballots and having them counted. In particular, the commission pointed to the disenfranchisement of tens of thousands of working class and minority voters.

The commission released its politically explosive report at a press conference held on the morning of March 9 at its Washington, DC headquarters. The event was attended by reporters and photographers from the ABC, NBC, CBS, CNN and Fox television networks, as well as from the Associated Press and several radio stations and newspapers.

Initially, the report was treated as a major story. The Associated Press had an article on the news wires shortly after the report was released, and CBS radio broadcast the commission's findings as its lead story at 11 a.m. After that, however, news of the report was virtually effaced from the media.

Cable News Network's Headline News, which purports to present 24-hour coverage of the most important developments of the day, did not air a word about the Civil Rights Commission's findings. The television networks ABC, NBC, CBS and Fox followed suit, saying nothing about the report during their evening news broadcasts.

The story was either ignored or downplayed by the print media. On March 9, the day the report was to be released, the New York Times carried a small article, on page 14, which included one paragraph about the commission's charges of voter disenfranchisement.

The Washington Post was no less dismissive. On March 10 the Post published a four-paragraph article in its "Washington in Brief" column in the back pages of the edition. According to a media relations representative for the Civil Rights Commission, neither the Times nor the Post sent reporters to cover the release of the report, although, in the case of the Post, the newspaper's offices are only 11 city blocks from the commission's headquarters.

The rest of the US print media treated the release of the report as a non-event, with only about a dozen papers -- half of them located in Florida -- reporting it. USA Today ran a report on page 13 of its March 12 edition.

Given the substance of the commission's report, the World Socialist Web Site decided to contact the television networks to demand an explanation for their failure to inform the public of its release. CBS and NBC news spokespersons did not return our calls. In the case of CNN, we were transferred to an operator at the Atlanta-based station's "comment line," who said, "As far as the network is concerned, we are not obligated to give an explanation as to what news is on the air."

The WSWS did get through to an executive at ABC News headquarters in New York City, who asked that he not be named. At first he sought to justify the network's decision by saying the report was only a preliminary summary of the commission's findings. Apparently, he wasn't even certain that this was the case. "That's your understanding, isn't it?" he asked the WSWS reporter.

After the WSWS reporter outlined the substantive character of the Civil Rights Commission's findings, the ABC News executive insisted that his network had provided ample coverage about charges of discrimination against minority voters.

The following exchange ensued:

WSWS: Tell me, how does this process work? You had reporters there. A document was released from a federal agency. You had an editorial board meeting. How did you decide this should not be presented to the American public?

ABC: Actually we don't discuss our internal editorial discussions, so I'm not about to start doing it with you.

WSWS: You mean there are no objective criteria involved?

ABC: The objective criterion is whether something is newsworthy, whether it makes news.

WSWS: So this wasn't newsworthy?

ABC: Well, because it's my understanding that ... I'm not saying that at all, and if you quote me saying that, you will be incorrect. What I'm saying is this was a preliminary report, there is a more extensive report to come out, and I guess they made the judgment that when the more extensive, fuller report was ready, that is what they would use as the news hook.

WSWS: But a preliminary report that listed at least 10 items -- police roadblocks, the fact that officials did not provide resources to precincts, that legal voters were knowingly purged from the registration rolls -- in which they said explicitly that disenfranchisement was at the heart of the Florida elections -- this wasn't news? Isn't it the case that the networks don't want to present anything that challenges the legitimacy of the Bush administration?

ABC: Before you make a charge as serious as the one you just made, you need to watch our programs. If you've watched our programs, you would know that we reported for 36 days about the elections.

WSWS: Yes, but in the aftermath of the inauguration...

ABC: This conversation is coming to a very quick close.

The WSWS reporter then informed the ABC executive that the WSWS was preparing an article about why the news media suppressed the Civil Rights Commission's findings. He responded by saying we had better be careful before charging "some sort of conspiracy to withhold this information from the American people."

In fact, it is not necessary to assume the existence of a conspiracy between the networks and the rest of the media to suppress the Civil Rights Commission's report. Closed door meetings and secret phone calls would not have been required for all of them to reach the same decision, since they all share a similar political bias and a general disdain for the democratic rights of the American people. (Nor would it be correct to rule out, a priori, the possibility of collusion between the network and media moguls.)

The media played a consistently cynical and reactionary role during the 2000 election crisis and beyond. For the five weeks when the presidential election hung in the balance, the media systematically downplayed the fundamental issue at the center of the conflict: the right to vote and have one's vote counted. News coverage was generally slanted, avoiding criticism of the Bush camp for blocking the counting of votes, while placing the onus on Democratic candidate Al Gore, who, it was suggested, unreasonably and unnecessarily prolonged the political crisis by refusing to concede the election.

In the aftermath of Bush's inauguration the media has gone out of its way to promote the Republican president, refusing at press conferences or other forums to raise any questions relating to the anti-democratic manner in which he obtained the presidency, or the fact that he won fewer popular votes nationally than his Democratic rival.

In this regard, the final exchange between the WSWS and the ABC News executive was enlightening:

ABC: You had three separate news organizations, making three separate editorial judgments on a particular story, all of which happen to come to the same conclusion: that it doesn't rise to the level of the evening newscast on that particular day. What does that tell you?

WSWS: It tells me that the networks all lack any real concern for basic democratic rights. Popular sovereignty was violated. People's votes were suppressed and it took place in Florida, a state run by Bush's brother -- but for the media, that's not news.

ABC: Let me ask you a question. Are you a journalist or are you an advocate?

WSWS: I'm an advocate of democratic rights, which journalists are supposed to be. I'm not a political supporter of Gore, far from it. I'm a socialist. But when it comes to clear violations of democratic rights, I think it is the responsibility of any halfway decent journalist, any one with an ounce of integrity, to report it. This was not just any organization. This was the US Commission of Civil Rights, which charged that likely violations of the Voting Rights Act took place and documented it after 30 hours of testimony. It was decided by the major news networks not to report it. Now, that is advocacy. Your advocacy is expressed in not allowing the American public to hear news stories that challenge the legitimacy of the Bush administration.