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Letter Urging Department of Justice to Object to Portions of Florida
Electoral Reform Package
July 22, 2001
Via Facsimile and U.S. Mail
Chief, Voting Section
Civil Rights Division, Department of Justice
P.O. Box 66128
Washington, D.C. 20035-6128
Re: Comment under §5 of the Voting Rights Act, Submission No. 2001-1693 and Request for Placement on Registry of Interested Individuals and Groups
Dear Acting Chief Rich,
On behalf of the Florida Equal Voting Rights Project, which is a collaborative project of the American Civil Liberties Union Foundation of Florida, the Florida Justice Institute and Florida Legal Services, and on behalf of numerous clients of our respective organizations who are minority voters in the State of Florida, we submit the following comment regarding Submission No. 2001-1693. For the reasons set forth below we urge the Department of Justice to object to those portions of the Submission which establish a set of Voter Responsibilities (Fla. Stat. § 101.031), which establish new voter list maintenance procedures (Fla. Stat. § 98.0977), and which establish a system of provisional balloting (Fla. Stat. § 101.048). We also request that we be placed on the Registry of Interested Individuals and Groups pursuant to 28 C.F.R. §51.32 for this Submission as well as all future submissions from the State of Florida or any of its five preclearance counties (Collier, Hardee, Hendry, Hillsborough and Monroe).
1. The Voter Responsibilities section of the Florida Election Reform Act of 2001 (Submission No. 2001-1693, hereafter "Submission"), Fla. Stat. § 101.031, imposes new, retrogressive, illegal and discriminatory voting requirements on minority voters.
The Voter Responsibilities section of the Submission will require the following admonitions to be posted and prominently displayed at each polling place:
VOTER RESPONSIBILITIES
Each registered voter in this state has the responsibility to:
1. Study and know candidates and issues.
2. Keep his or her voter address current.
3. Know his or her precinct and its hours of operation.
4. Bring proper identification to the polling station.
5. Know how to operate voting equipment properly.
6. Treat precinct workers with courtesy.
7. Respect the privacy of other voters.
8. Report problems or violations of election law.
9. Ask questions when confused.
10. Check his or her completed ballot for accuracy.
Because of the prominence of the display, along with other statutory signage advising pollworkers and voters of applicable law, and based on past practices with similar signage in Florida, it is clear that voters and pollworkers alike will perceive these responsibilities as the legal obligations of voters, rather than as advisory goals. Therefore, these admonitions are a return to pre-Voting Rights Act literacy tests, once employed in Florida's preclearance counties to disenfranchise African Americans. 40 Fed. Reg. 43746 (1975); 41 Fed. Reg. 34329 (1976); see also DeGrandy v. Wetherell, 794 F.Supp. 1076, 1079 (N.D.Fla. 1992) (three judge court) (subsequent history omitted). Today, the use of these standards in determining eligibility to vote has an enormous potential for discrimination against and deterrence of voting by both racial and language minorities, which comprise a significant segment of Florida's population.
Florida's sizeable Black and Hispanic populations suffer from socio-economic disadvantages not shared by non-Hispanic Whites. These disadvantages make it likely that the Voter Responsibilities will prevent or discourage Blacks and Latinos from voting in disproportionate numbers. Blacks and Latinos are disproportionately poor. They are less likely to have completed high school. They are more likely to be unemployed. And they are far more likely than non-Hispanic Whites to move frequently within a county. The poverty rate for both Blacks and Latinos is approximately three times the poverty rate for non-Hispanic Whites (23.6% and 22.8%, respectively, compared to 7.7% for non-Hispanic Whites). Almost half of the Hispanic population over the age of 25 has not completed high school, almost one-quarter of the Black population has not completed high school, while non-Hispanic Whites have a high school completion rate of approximately 88%. The unemployment rates for Florida's Blacks and Latinos are similarly disproportionate. In 1990, the last year for which such detailed census data is available, Blacks comprised only 14% of Florida's total population but more than one third of Florida's unemployed. Hispanics were 12% of the population but 26% of those who were unemployed. Mobility rates are also quite different. White non-Hispanics are the least likely to have moved within a calendar year, while Hispanics have the highest mobility rate (20%), closely followed by Blacks (19%). Among people who moved, Hispanics and Blacks were the most likely to have moved within the same county (63 and 61 percent, respectively). The mobility rates also increase dramatically for persons living below the poverty level.
Because of these demographic factors, the mere posting of the Voter Responsibilities is likely to deter minorities from voting in disproportionate numbers. It is axiomatic that persons who have not completed high school are less likely to be literate, less likely to have studied the candidates and issues before voting, and are more likely to be intimidated by signage in the polling place. Persons who are impoverished, who have not attended college or university, and persons who are unemployed are also far less likely to have an acceptable form of photo identification as they are less likely to drive, to have employer or school issued photo identification or credit cards. Such individuals are also more likely to be uninformed as to their precinct and its hours of operation (particularly in light of local mobility issues, discussed further at #3, below) and are less likely to know how to operate voting equipment properly. It is also important to note that none of these "responsibilities" is countenanced by Florida law. Often, for example with the identification requirement (see below), Florida law is contrary. Moreover, the responsibilities are self-contradictory: voters are required to be knowledgeable of several subjects related to voting and to ask questions when confused.
The past practices of elections officials in Florida indicate that these new requirements have enormous potential for discrimination or at least for disproportionate use. During the last election in Florida misuse of the new photo identification requirement was widespread, and its misuse is a harbinger of things to come if the Voter Responsibilities section is implemented. Florida first enacted a photo identification requirement in 1998. Fla. Stat. § 98.471. Despite a statutory requirement to do so, the Department of State issued no regulations regarding what forms of photo identification should be accepted, nor did it take any proactive role in reminding the counties that voters were entitled to vote by affidavit ballot if they did not have identification. Fla. Stat. § 101.49. Each county then independently determined what forms of photo identification were acceptable with widely variant results. On election day, whether due to intentional misreading of the statute, poorly-trained pollworkers or the ubiquitous posting of signs stating photo id was required with no exceptions noted, in many counties voters without photo identification were turned away from the polls or otherwise discouraged from voting. The posting of these Voter Responsibilities will only encourage further misuse or misreading of the identification requirement as well as other, new, requirements such as knowledge of the candidates, issues, and voting system. It will operate to prevent eligible minorities from voting. Indeed, the Voter Responsibilities operates to impose a higher requirement of knowledge of the law on voters than that which was required and expected of elections officials in the past.
For the large number of Florida's language minority citizens, the situation is likely to be even more unfair. Each of Florida's five preclearance counties is a designated Spanish language minority jurisdiction under § 4(f)(4) of the Voting Rights Act, and considering the growth in the Latino population documented by the 2000 Census it is likely that the entire State will be designated a Spanish language minority jurisdiction pursuant to § 203(b) in 2003. Certain areas in Florida, including its five preclearance counties, have a substantial Haitian Kreyol speaking population. In the last election the preclearance counties' compliance with the Spanish language requirements for bilingual materials and oral assistance was spotty, at best, and materials and assistance in Haitian Kreyol were virtually non-existent. Despite the large number of non-English speaking voters in Florida, the Voter Responsibilities section of the Submission makes no mention of language or language assistance and it imposes a new requirement, "ask questions when confused," that will be difficult, if not impossible, for language minorities.
Finally, while we recognize that a violation of § 2 in and of itself is not a basis for denying preclearance, Reno v. Bossier Parish School Board, 520 U.S. 471 (1997), here it is worthwhile to note that the requirements set forth in the Voter Responsibilities violate the express provisions of that portion of Section 2 of the Voting Rights Act which abolished all literacy tests (42 U.S.C. § 1973b(c)). The Voter Responsibilities require or have the potential for a polling official or voter determining that they require, as a prerequisite for voting, that a person (1) demonstrate the ability to read, write, understand or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class. Thus, the Voter Responsibilities are a complete retrogression to a literacy test standard that has been illegal everywhere since 1970 and, indeed, to a statewide literacy test that Florida never previously employed. Katzenbach v. Morgan, 384 U.S. 641, 656 (1966).
2. The voter list maintenance procedures established by the Submission, Fla. Stat. § 98.0977, impose new, retrogressive and discriminatory practices, and violate the National Voter Registration Act.
We urge you to object to the changed practices with respect to the removal of ex-felons from the voting rolls called for by the Submission. The legislature repealed the existing practices (set forth at Fla. Stat. § 98.0975) and replaced them with those set forth in Fla. Stat. § 98.0977. The Submission makes a needed change by eliminating the role of a private contractor in the purging process. However, it codifies for the first time two problems that will adversely affect minority voters - it substitutes a dangerously standardless ex-felon identification procedure and codifies reliance on a certified mail notification procedure that places the burden for remaining on the voter rolls on the person who is likely to be erroneously purged. Since reviews of the errors in the 2000 election demonstrate that ex-felon purging errors disproportionately impact African Americans, these revised procedures will lead to the disproportionate purging of African Americans, resulting in a retrogression in the voting rights of Blacks in Florida.
The current list maintenance practice provides that the State Division of Elections shall provide to each Supervisor of Elections a list of each person included in the State's central voter file who is a registered voter in the Supervisor's county and who "has been convicted of a felony and has not had his or her civil rights restored". That information is to be obtained by the State through a contract "with a private entity to compare information in the central voter file with available information in other computer databases, including, without limitation, databases containing reliable criminal records..."
After receiving the list, each supervisor is required to "attempt to verify the information provided. If the supervisor does not determine that the information provided by the division is incorrect, the supervisor must remove from the registration books by the next subsequent election the name of any person who is ... convicted of a felony..."
The new statute initially provides for the creation of a "statewide, online voter registration database and associated web site, to be fully operational statewide by June 1, 2002." The statewide database "shall contain voter registration information from each of the 67 supervisors of elections in this state". The database is, in an unspecified way, "to be updated on a daily basis to determine if a registered voter is ineligible to vote" due to a felony conviction. The State may not contract with a private entity to provide that information.
Each supervisor of election is responsible for reviewing registration information as contained in the database with other "relevant" databases to begin the ex-felon purging process. The statute provides that:
In administering the database, each supervisor of elections shall compare registration information provided by a voter with information held by the Department of Law Enforcement, the Board of Executive Clemency, the Office of Vital Statistics, and other relevant sources. If the supervisor of elections finds information that suggests that a voter is ineligible to register to vote, the supervisor of elections shall notify the voter by certified United States mail. The notification... shall request information from the voter on forms provided by the supervisor of elections in order to make a final determination on the voter's eligibility. After reviewing the information requested by the supervisor of elections and provided by the voter, if the supervisor of elections determines that the voter is not eligible to vote under the laws of this state, the supervisor of elections shall notify the voter by certified United States mail that he or she has been found ineligible to register to vote in this state, shall state the reason for the ineligibility, and shall inform the voter that he or she will be removed from the voter registration rolls.
An examination of the existing procedures indicates that the new procedures will disenfranchise even more Blacks. The United States Civil Rights Commission investigated these irregularities and spent a substantial amount of its time and analytical energy focused on the list maintenance legislation and procedures. In its Draft Report, Voting Irregularities in Florida During the 2000 Presidential Election, Chapter 3 (hereafter Comm. Rep.), the Commission described the inherent conflicts between the responsibilities of the Division of Elections and the Supervisor of Election's obligations and the difficulties Supervisors of Election had in implementing those procedures.
The Commission initially reviewed the obligations of the Division of Elections with respect to the development of the list of ex-felons. Comm. Rep., Ch.3, p. 4. Under existing law that list, based on "reliable" criminal records, must then be provided to each County Supervisor of Elections. Comm. Rep., Ch.3, p. 4. The Commission then rightly notes that this legislative scheme places the burden on the local Supervisor of Elections and then ultimately on the voter:
Without providing funding or appropriate assistance, the state of Florida placed the burden of list maintenance squarely on the shoulders of the supervisors of elections. This lack of resources and the statutory burden now shifted to the voters to prove their innocence creates an opportunity for voter disenfranchisement.
Comm. Rep., Ch.3, p. 4 (footnotes omitted). The Commission then details its conclusion regarding the impact on the voters' exercise of the franchise:
...It is noteworthy that inaction by an eligible voter triggers his or her removal from the registration list. Once a voter's name appears on this list, even by gross error, the burden is then shifted to the voter to prove their right to vote. [Fla. Stat. ch. 98.0975(4)] In some cases this could result in the voter being subject to fingerprinting in order to prove that he or she was erroneously placed on this list. [Footnote omitted] Even with considering the practical impact of how these lists are compiled, the statute on its face, renders the eligible voter vulnerable to disenfranchisement since it places the burden of attempting to verify proper placement on the purge list on already underfunded county supervisors. [Footnote omitted.] Moreover the burden of being removed from the purge list is on the voter.
Comm. Rep., Ch.3, p. 5.
After reviewing the myriad ways each county Supervisor of Elections responded to the list, the Commission concludes that errors in the data were greatly exacerbated by the manner in which the verification was handled by the Supervisors. Different Supervisors corresponded with voters identified on the lists in radically different manners. Several Supervisors chose to ignore the lists entirely. Comm. Rep., Ch.5, pp. 10-11. Ultimately, the Commission was forced to conclude:
The process by which each county verified its exclusion list was as varied and unique as the supervisors of elections themselves. Some supervisors of elections sent letters to the proposed felons and held hearings to allow them to produce evidence of their convictions and/or clemency status. Other Supervisors of Elections chose not to use the exclusion list at all...The Florida legislature's decision to privatize its list maintenance procedures without establishing clear guidance for these private efforts from the highest levels, coupled with the absence of uniform and reliable verification procedure, resulted in countless voters being deprived of their right to vote. [Emphasis added]
Comm. Rep., Ch. 5, p. 14.
B. The Retrogressive Effect of Section 98.0977
(a) Discriminatory Impact of Mistaken Felony Purges
The Civil Rights Commission performed a statistical analysis of the names erroneously placed on the 2000 ex felon purge list provided to Miami-Dade County by the State of Florida. According to the Commission:
African-Americans represented the majority of persons - over 65% - on both the June 1999 and the January 2000 list. This percentage far exceeds the African-American population of Miami-Dade County. African-Americans residing in Miami-Dade County account for only 20.4 percent of the population.
Comm. Rep., Ch. 1, p. 17. And directly to the point of the disproportionate error rate, the Commission found:
Indeed, the persons who successfully appealed to have their names removed from the list provided to Miami-Dade County by the Florida Division of Elections are also disproportionately African-American. One hundred and fifty five African Americans (47.4 percent of the total) successfully appealed in response to the June 1999 list and 84 African Americans (59.2 percent of the total) successfully appealed in response to the January 2000 list.
Comm. Rep., Ch. 1, p. 18.
(b) Lack of Any Standards in the New Procedures
As outlined above, the major contributing factors in the mistaken felony purges of the 2000 election were the errors in identifying ex-felons, confusion among Supervisors of Elections as to their responsibility for utilizing information, the differing ways in which they did utilize it and the placement of the burden of remaining on the voter rolls with the voter. Thus, the changes exacerbate the problems and will result in greater disenfranchisement of minority voters.
(i) The Lack of Standards for Identification of Ex-felons. Under current law, despite the chaotic implementation, there exist some standards for identification. Specifically, pursuant to Section 98.0975, Fla. Stat. 2000, the State is required to send to the Supervisors a list which contains only individuals who "ha[ve] been convicted of a felony and has not had his or her civil rights restored". This language would certainly appear to imply a requirement that the State initially verify accuracy. After the Supervisor receives it, he or she must "attempt to verify the information provided.." Then, if the Supervisor "does not determine that the information provided by the division is incorrect" he or she must remove the person's name from the registered voter rolls.
All of these standards, admittedly inadequate and limited, have been removed in the new legislation. Fla. Stat. § 98.0977 eliminates any responsibility on the part of the State for insuring the veracity of any ex-felon list. Indeed, the new Section completely eliminates any transfer of an ex-felon list from the State to the Supervisors. Instead, each Supervisor is required to make their own determination. Moreover, what is most striking is that the standard incorporated in the statute is "if the supervisor of elections finds information that suggests that a voter is ineligible to register to vote [due to ex-felon status], the supervisor of elections shall notify the voter by certified United States mail." Certainly "suggests" provides an almost limitless discretion to the supervisor to undertake the notification process. Webster's Dictionary states that a synonym for "suggests" is "hints at". It is difficult to imagine a criteria which a Supervisor could not argue "hinted at" a possible felony conviction. A match of last names with a convicted felon could certainly be argued to "suggest" a possible felony conviction (possibly even just a match of certain first names or a match of birth dates). All of these would be countenanced by the statute.
(ii) Lack of a Procedure for Verifying Eligibility. Once a supervisor determines that some information has "suggested" a possible felony conviction, the Supervisor is required to notify the voter. If the supervisor receives no response, the statute provides that the supervisor review "the information requested by the supervisor of elections and provided by the voter". If after that review the supervisor of elections determines that the voter is not eligible to vote, then the supervisor is authorized to remove the name. While again the statute does not provide any standards, it has eliminated any responsibility to make an independent investigation, as is required (although not adhered to) currently. Rather, it appears that, if the supervisor receives no information from the voter to review, the supervisor could reasonably believe that the statute authorizes or even requires the removal of that name from the list.
(iii) Certified Mail and Burden on the Voter. As discussed above, the minority population is more likely to move frequently than the non-minority population. Persons living in poverty (who are disproportionately minorities) are also less likely to pick up certified mail even when they have not moved. Codifying a certified mail notification standard to which failure to respond can result in removal from the list of registered voters will unquestionably have a disparate impact on race and language minorities.
In fact, the problems discussed above duplicate the problems documented by the Civil Rights Commission regarding the current system, i.e., "It is noteworthy that inaction by an eligible voter triggers his or her removal from the registration list. Once a voter's name appears on this list, even by gross error, the burden is then shifted to the voter to prove their right to vote." However, as opposed to the current statute, there is no longer a requirement that there be any verification of information prior to the notification process. Indeed, a Supervisor appears to be statutorily obligated to begin the notification process based solely on "suggestion".
The effect of this process is that any group of voters whose names or related information, for any standardless reason, "suggest" to a Supervisor that they could be ex-felons will be subjected to a new and additional verification procedure which will put at risk their right to vote solely for failure to return the Supervisor's inquiry and, even if they do respond, could subject them to intrusive procedures such as fingerprinting solely based on that suggestion. The possibility of having to be fingerprinted is also more likely to be a deterrence to minorities than to non-Hispanic Whites.
Given that all current evidence is that errors with respect to ex-felon determinations always disproportionately impact minorities, a trait that is particularly evident in Florida at present, one must conclude that this change is retrogressive.
3. The system of disqualifying provisional ballots established by the Submission, Fla. Stat. § 101.048, imposes a new, retrogressive and potentially discriminatory practice likely to result in the disqualification of a disproportionately high number of minority votes.
While as a general matter provisional ballots should be seen as a progressive step, the standards for disqualifying provisional ballots set forth in this Submission will actually result in more minority votes being disqualified through their use of provisional ballots both because of the mobility of the minority population and the likelihood that minorities will be erroneously purged. As previously discussed, the minority population is more likely to move than the non-Hispanic White population, and the majority of moves among Blacks and Latinos are within their present county of residence. These voters remain legally registered to vote within their counties of residence, but in all likelihood their voting precinct will change as a result of their move.
With respect to voters who move within a jurisdiction Florida's existing practice is as follows: if the voter appears at his or her old precinct to vote the voter is sent to the new precinct which corresponds to the voter's current address. Upon arrival at the new precinct the voter is permitted to vote after affirming his or her new residence. Because the voter is not permitted to vote in the wrong precinct, there is no danger that the vote will not be counted under the present procedure. Similarly, if an individual has been erroneously removed from the voter rolls (more likely for minorities, see #2, above), under the current procedure they are not permitted to vote unless and until their eligibility to vote has been determined and their status changed.
The provisional ballot system established by the Submission will change these procedures and will in all likelihood result in a substantial number of minority ballots not being counted. This is because rather than resolving the issue of where the voter is supposed to vote or whether the voter is eligible to vote, pollworkers and voters will be encouraged to utilize a provisional ballot in all cases in which the voter does not appear on the rolls. But the dictates of the provisional ballot statute are harsh. Pursuant to that statute the ballot of a voter who is a legal eligible voter but votes in the wrong precinct must be "Rejected as Illegal," Fla. Stat. §101.048(2)(b)2. Similarly, if an individual is erroneously purged from the voter rolls but casts a provisional ballot because his or her name does not appear on the voter list, and fails to resolve the question of eligibility, that provisional ballot will not be counted because the records of the Supervisor of Elections will reflect that the voter is ineligible because he or she has been purged from the rolls. At the very least, the voter who votes a provisional ballot should be warned that any question of eligibility to vote must be resolved with the supervisor of elections immediately or the provisional ballot will not be counted.
4. Analysis of relevant factors set forth in 28 C.F.R. § 51.57 weighs against preclearance of this Submission.
a. Lack of justification for changes which are unfair and subjective.
While election reform was clearly necessary in Florida, the changes discussed above are not justified. With respect to the Voter Responsibilities portion of the Submission, there was widespread interest and support for a Voter Bill of Rights among minority and civil rights groups. At the same time, a number of Florida citizens and officials recognized a contrary view, that "election officials should not be concerned with the rate of voter error, it is the responsibility of the voter to get it right; and if the voter can't figure out how to use a voting system, then they shouldn't vote at all." The Governor's Select Task Force on Elections Procedures, Standards and Technology, Transcript of proceedings, 1/08/2001, Vol. 1, p. 37:24 - 38:05. This view was echoed by the Speaker of Florida's House of Representatives who was quoted by the news media as stating that the widespread voter confusion might be a reason to require literacy tests. The provisions of the Submission echo these two contradictory views. The legislature adopted a Voter's Bill of Rights, all of which are based on Florida election law, but simultaneously enacted the Voter Responsibilities which has no basis in law and is in fact contrary to the requirements of both Florida and federal law, and, in some respects even contradicts itself and the Voter's Bill of Rights.
As to the list maintenance procedures established by the Submission, clearly the existing list maintenance procedures were in need of reform. They were scrutinized by numerous organizations including the United States Civil Rights Commission, the Florida State Legislature and the Governor's Task Force. All found problems with the existing procedures. There was general agreement that the database developed by an external database provider was inaccurate. But in addition to the problems with the names on the list provided by the external database, the United States Civil Rights Commission, which studied the problem in depth, was also particularly troubled that there were few standards for the utilization of that data by the County Supervisors of Election and with the placement of the burden on the voter to stay registered. It was all of these failures which led to the inaccurate purging of individuals, disproportionately African American, who were misidentified as ex-felons who had not had their civil rights restored. Although the new statute eliminates the ability to contract with private entities to develop ex-felon purging lists, it is not justified because it substitutes a dangerously standardless ex-felon identification procedure and increases the voter's burden to remain registered.
Finally, while provisional balloting should be a welcome change, the requirement that ballots from a voter mistaken as to precinct or who has been erroneously purged be rejected as illegal will result in the disqualification of a substantial number of minority votes and is without justification. The Legislature considered and rejected provisional ballot proposals which would have eliminated the discriminatory effect of this Submission, notably 313-1609-01, CS for SB 1118, which provided:
The provisional ballot of a voter who is otherwise entitled to vote shall not be rejected because the voter did not cast his or her ballot in the precinct of his or her legal residence. However, if the voter did not vote the ballot to which he or she was entitled, the canvassing board shall duplicate the ballot for the races that the voter was entitled to vote in his or her legal precinct and count the races for which the voter was entitled to vote.
b. Lack of attention to concerns of minorities.
On April 27, 2001 the Florida Equal Voting Rights Project contacted Legislative leaders urging them to remove the Voter Responsibilities from this Submission (copy attached). They received no response. Further, the Legislature systematically rejected or undercut the voting reforms of greatest importance to the minority community and the Black Caucus - felon disenfranchisement reform, voter's bill of rights and provisional ballots.
For all of the foregoing reasons, we urge you to interpose an objection to Fla. Stat. §§ 101.031, 98.0977 and 101.048 of the Submission. In the event that you believe there to be a dispute or question regarding any of the facts discussed in this comment, we urge the Department of Justice to request additional information. Thank you for considering our views.
Very truly yours,
The Florida Equal Voting Rights Project
By:
JoNel Newman
Florida Justice Institute, Inc.
200 S. Biscayne Blvd., Suite 2870
Miami, FL 33131
(305) 358-2081
(305) 358-0910 - facsimile
Charles F. Elsesser, Jr.
Florida Legal Services, Inc.
3000 Biscayne Blvd., Suite 450
Miami, FL 33137
(305) 573-0092
(305) 576-9664 - facsimile
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