THERE THEY GO AGAIN. In releasing their draft report on last year’s presidential election in Florida, the majority members of the United States Commission on Civil Rights have once again put their political biases on display. Earlier this year, the Commission heard three days of testimony regarding so-called voting “irregularities” in the November election. The hearings were an Alice-in-Wonderland-like spectacle, in which commissioner Christopher Edley demanded a “confession” from Florida election officials before even a fraction of the evidence had been received, and Commission chairman and left-wing provocateur Mary Frances Berry declared that the utter dearth of discrimination claims received by Florida officials constituted proof positive that discrimination had taken place. Four months later, the Commission has put together a brazenly biased document designed to substantiate Chairman Berry’s preconceived view—held in spite of evidence to the contrary—that African-American voters were disenfranchised in Florida last November. The politicization of the report is obvious from the fact that it was leaked to the Washington Post before either of the two Republican-appointed commissioners had seen it or been briefed on its contents. Commissioners are supposed to review and comment on reports before the Commission votes to approve them. Yet when commissioner Russell Redenbaugh requested that Mary Frances Berry send him a copy of the report, he received no response. Abigail Thernstrom, the only registered Republican on the Commission, learned that the report had been completed only when she received a telephone call from a reporter seeking her comments on the document. It is, of course, ironic that an organization which concerns itself with voting “irregularities” would operate with so little regard for orderly process and fairness. But this “procedural travesty,” as Commissioner Thernstrom calls it, is only half the story. The biggest problem with the Commission’s report is its substance. The document is an Orwellian exercise in distortions and half-truths. Put simply, the report’s conclusion that minority voters were the victims of discrimination in Florida’s November election has no basis in fact. To begin with, the Commission’s conclusion that black voters were nine times as likely as whites to have their votes discarded is based on an inappropriate statistical comparison of the percentage of spoiled ballots in each county with the percentage of African Americans residing in that county. (Ballots, of course, do not identify the race of the voter, so it is only through speculation and rough use of statistics that the Commission can make such a claim at all.) Even assuming, however, that black voters were more likely than white voters to have their ballots discarded, this alone would point nowhere. The critical question—which this report makes no serious attempt to answer—would be why this had occurred. The report irresponsibly implies that the reason is related to race. But it makes no attempt to explain how race might have played any role in the disqualification of anonymous ballots. Rather than rely on evidence, the report simply uses the passive voice to suggest official mischief where there is only voter error. Thus, it states that persons living in counties with high minority populations “were more likely to have their votes spoiled or discounted” than persons living in the rest of Florida. This, of course, begs the question: By whom were these ballots spoiled? The answer is that they were spoiled, accidentally, by individuals who failed to vote correctly. The most likely explanation for the high rate of spoilage in communities with large black populations is that many of these voters were inexperienced and uneducated voters. Indeed, approximately 40 percent of the African Americans who voted in Florida’s presidential election were first-time voters, who are understandably prone to make mistakes. And, as the Wall Street Journal recently noted, the county with the highest number of spoiled ballots also has the highest illiteracy rate. The report’s criticisms of Florida governor Jeb Bush and Florida secretary of state Katherine Harris are likewise without merit. The report chastises Bush and Harris for failing to standardize Florida’s voting mechanisms prior to Election Day. Yet state law, until recently, gave the governor and secretary of state little control over how elections are run in Florida’s 67 counties. Had it given them more control, imagine the outcry and charges of election tampering that these same critics would have levied if the brother of the Republican presidential candidate and the Republican secretary of state had actually tried to centralize voting procedures statewide before the election! After complaining about Florida’s decentralized process, the Berry majority on the Commission refuses to give Florida officials any credit for significantly overhauling its election system in 2001 to establish uniform standards for voting and recounts and reduce many of the technical problems that arose in Florida last year. Perhaps the document’s most compelling charge is its claim that over 1,000 eligible voters were erroneously purged from the voter rolls as ineligible felons. Florida law prohibits felons from voting and requires election officials periodically to purge the voter lists of ineligible voters in order to prevent fraud. The felon lists used in the 2000 election were compiled by Database Technologies, Inc., which purposely created an over-inclusive list, on the theory that local election supervisors would bear responsibility for pruning the list and confirming the data. The fact that local election officials failed in this task hardly indicates a conspiracy to keep minorities from the polls. An overbroad purge in some counties may indeed have affected blacks more than whites. But the failure of some election officials to even conduct the purge (required by law), combined with lax security procedures at many polling precincts, may have worked to the advantage of some African Americans and others who should not legally have been allowed to vote, but who nevertheless were able to cast ballots. The Miami Herald, no bastion of conservatism, has reported that the Florida election was “marred by illegal voting,” and has concluded that thousands of illegal ballots (from ineligible felons, dead people, people who are not residents of Florida, and people who had already voted) were cast in this closest of presidential elections. Yet the Commission has the audacity to claim that fraud was not an issue last November and that only efforts to prevent it proved problematic. Chairman Berry has publicly called upon the U.S. Department of Justice to investigate whether Florida election officials violated federal civil rights laws last November. And Democratic members of the Senate Judiciary Committee have extracted promises from Justice Department officials to investigate any credible allegations of disenfranchisement. This report provides none. Jennifer C. Braceras is an attorney and research fellow at Harvard Law School. Her article “Uncivil Commission” appeared in the February 26, 2001 Weekly Standard.
