Citing Impact on Minorities, FL Voting Rights Project Urges DOJ to Object to Electoral Reform Package

MIAMI — In a letter sent today to officials at the U.S. Department of Justice (DOJ), the Florida Equal Voting Rights Project called on the DOJ to object to sections of the Florida electoral reform package that will have a discriminatory impact on minority voters if implemented.

“Rather than moving forward into the future, the provisions in question threaten to return minority voters to the Jim Crow past,” said Howard Simon, Executive Director of the ACLU of Florida, which operates the voting rights project in conjunction with the Florida Justice Institute and Florida Legal Services.

The Florida electoral reform package, passed by the Legislature and signed by the Governor this past session, was recently submitted to the DOJ for review. The DOJ’s approval of the voting changes is necessary for Florida’s five preclearance counties (Hardee, Hendry, Hillsborough, Collier, and Monroe), designated as such for their history of discrimination against minority voters. Any provisions of the legislation not approved by the DOJ for these counties will be invalid throughout the state.

The Project’s letter objects specifically to three aspects of the omnibus Florida electoral reform act as adversely affecting minority voters: (1) the posting of the Voter Responsibilities list that harkens back to literacy tests; (2) the new felony purge process; and (3) the disqualification process for provisional ballots.

In its letter, the Project objects to the establishment of a list of Voter Responsibilities for posting in all Florida polling places. Among its ten provisions, the Responsibilities list requires each voter to “study and know candidates and issues,” “know his or her precinct and its hours of operation,” and “bring proper identification to the polling station.”

“Because of the prominence of the display and based on past practices with similar signage in Florida, voters and pollworkers alike will perceive these responsibilities as the legal obligations of voters, rather than advisory goals,” said JoNel Newman, Project Attorney and Co-Director. “Therefore, these admonitions are a return to pre-Voting Rights Act literacy tests, once employed in Florida’s preclearance counties to disenfranchise African Americans.”

The letter goes on to point out that, according to the most recent census data available, blacks and Latinos are far more likely than whites to move frequently and to be impoverished. As a result, they are less likely to have photo identification or to know their correct precinct after a recent move.

“What is most striking,” according to the letter, “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.'”

“The word suggests” said Charles Elsesser, Project Attorney and Co-Director, “gives the supervisor almost limitless discretion to notify the person that he or she may be taken off the voting roll. And the use of certified mail means that highly mobile minority voters may never receive the supervisor’s letter. The result is that people who never committed a felony will once again be prevented from voting.”

The fact that minorities tend to move more frequently than whites and to be erroneously purged as felons underlies the Project’s concern over provisional ballots, the final issue addressed in the DOJ letter.

“While as a general matter provisional ballots should be seen as a progressive step,” the letter said, “…the provisional ballot system established by the [electoral reform package] ? 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.”

Under the statute, provisional ballots cast in the wrong precinct or by persons erroneously deleted from the rolls must be “Rejected as Illegal.”

Florida Equal Voting Rights Project staff are careful to underscore the positive changes made by the Legislature and Governor through electoral reform. “We aim simply to make sure the positive change is not undermined by dilution of the voting rights of minorities,” said Simon.

The full text of the 14-page letter follows.

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July 18, 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). (1) 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). (2) 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%. (3) 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. (4) Hispanics were 12% of the population but 26% of those who were unemployed. (5) 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. (6)

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. (7) 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. (8) 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 (9), 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 Creole 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 Creole were virtually non-existent. (10) 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, on-line 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. (11)

B. The Retrogressive Effect of Section 98.0977

(a) The 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) The 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. (12) 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) The 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