Lawyers' Committee for Civil Rights Under Law
1401 New York Avenue, NW
Suite 400
Washington, DC 20005

Memo to Media

To: Reporters, Editorial Writers and Columnists Covering Florida Vote

From: Ed Jackson, Advancement Project (202) 728-9557, (202) 251-3894, edjacksonadvproj@aol.com Diane L. Gross, Lawyers' Committee for Civil Rights Under Law (202) 662-8317, dgross@lawyerscomm.org

November 17 , 2000

Democracy At Risk: Voting-Rights Complaints Mounting In Florida

For 11 days, the nation and the media have been transfixed by issues related to balloting problems in the Florida elections, and understandably so. However, there have also been substantial and credible allegations of disenfranchisement of minority voters in several Florida counties.

There are compelling reasons to address these complaints of disenfranchisement immediately, and with the utmost gravity:

First, Florida has a long and well-documented history of discrimination against African American voters.
Because of their past history of discrimination, five of Florida's counties have been declared "covered" jurisdictions under Section 5 of the Voting Rights Act (requiring them to obtain U.S. Justice Department authorization for any proposed change in voting practices in those counties).

Second, there have been reports from Florida that hundreds of African Americans, Haitian Americans and Puerto Ricans may have been denied their constitutionally guaranteed right to vote in the November 7, 2000 election.
Civil rights organizations associated with the Leadership Conference on Civil Rights (LCCR) have received complaints of widespread denial of the right to vote, predominantly affecting minority voters and heavily-minority precincts. Some of these complaints were presented at NAACP field hearings November 11 in Miami, at which leaders of several other LCCR member organizations participated. These hearings were the first step in an effort to make a public record of the reports of voting irregularities experienced by African Americans and other citizens who attempted to vote, and to ascertain the extent of the disenfranchisement.

ALLEGED ABUSES

The information gathered by civil rights organizations, including the NAACP, details allegations of several forms of outright denial of the right to vote, as well as intimidation and barriers that prevented or discouraged voting. All of the following types of disenfranchisement - alleging serious violations of the United States Constitution, the federal Voting Rights Act and the National Voter Registration Act, as well as Florida Election Law and Florida Civil Rights Laws - have been described in complaints to LCCR organizations:

Voters Turned Away at the Polls

• Minority voters who have been registered, and have voted, for many years were told when they appeared at their polling places that they did not appear on the voting lists. Some minority voters said they were turned away because they did not have photo identification, even though Florida law provides that registered voters without photo IDs may cast "affidavit ballots".
• Reports indicate that in some counties, minority voters were asked for a photo ID while white voters were not.
• Some minority voters claimed that they were turned away even when they appeared at the polling place with both their voter card and a photo ID.
• Voters who did not appear on the voting list or have a photo ID reported that they were shunted into a problem line, where they waited for long periods of time after being told that election officials were trying to telephone headquarters. However, because phone lines were jammed and many of these calls never went through, many voters said they became discouraged and left without voting.
• Some voters told of being sent from polling place to polling place, with no real effort to determine where they actually would be permitted to vote. Some claimed to have been turned away from not just one, but three or four polling places.
• Other voters reported being denied the right to vote because of minor, immaterial discrepancies in their names as they appeared on registration lists and in their proof of identification - such as their use of middle initials. Voters who were turned away said that they were not offered affidavits or challenged ballots.
• Moreover, poll workers reportedly were instructed by their supervisors to be particularly strict in challenging voter qualifications because of aggressive voter registration and turnout efforts that had been made in their communities in connection with the November 7 election.
• Large numbers of minority voters who registered before the October 10, 2000 deadline under Florida law did not receive their voting cards before November 7. When they appeared at the polls, they were told they were not on the voting list and were not permitted to vote.

Polling Places Moved Without Notice

• Witnesses also reported that one, and possibly more, polling places were moved without notice to the voters and without the placement of a sign at the site, as required by Florida law. As a result, the minority voters served by this polling place either had to overcome the barrier of locating their new polling place on their own (telephone calls to election officials were either not answered or not helpful) or were denied the right to vote because they could not locate their polling place.

Intimidation, Threats and Harassment of African American Voters

• Witnesses reported police checkpoints or police stops of voters in the vicinity of several polling places in African American neighborhoods.

Absentee Ballot Irregularities

• Voters who requested absentee ballots alleged that they did not receive them and that they then were not allowed to vote when they went to the precinct in person on election day
• In addition, a witness has reported that, in one county, hundreds of absentee ballots of registered voters were rejected by the Supervisor of Elections and not counted.

Failure to Provide Bilingual Ballots as Required by Law

• Miami-Dade County passed an ordinance in 1998 requiring that ballots in Creole be provided at 47 majority-Haitian precincts in the county. However, there are complaints that these ballots were not available at some of these 47 precincts.

Failure to Provide or Allow Assistance

• Many Haitian American voters requested the assistance of a volunteer Creole/English speaker, who was willing to translate the ballot for those with limited English proficiency, but were denied such assistance. As a result, many Haitian American voters may have been denied the right to vote, despite Florida election-law provisions requiring that voters who are not proficient in English be permitted to take an assistant into the polling booth.
• Refusal to Provide a Second Ballot: Voters also reported being denied a second ballot to correct an error in filling out the first one. This denial of the right under Florida law to a second (or even third) ballot to correct a mistake was particularly egregious.

DEMOCRACY DENIED: IS THERE A PATTERN?

When taken together, the allegations of exclusion and intimidation that civil rights investigations have thus far uncovered show a possible pattern of disenfranchisement of large numbers of minority voters in several counties. African American, Haitian American and Hispanic voters who tried to vote, and who made heroic efforts to overcome barriers and refusals, must not be left voiceless in our democracy.

We will pursue all allegations of violations of state and federal voting-rights laws and in the event we pursue litigation, we will consider all available and appropriate legal remedies under state and federal law.

VOTING-RIGHTS LAW: A BRIEF HISTORY

After the country had endured "nearly a century of systematic resistance to the Fifteenth Amendment (which guaranteed men the right to vote regardless of race or previous condition of servitude)," Congress determined to "shift the advantage of time and inertia from the perpetrators of the evil to its victims. [South Carolina v. Katzenbach, 383 U.S. 301, 327-28 (1966).] The Voting Rights Act of 1965 marked the biggest statutory change in the relationship between the federal and state governments with respect to voting since the passage of the Reconstruction Acts, which enfranchised blacks in conquered Southern states.

The new law banned such practices as poll taxes for state and local elections, literacy tests to register, and "voucher" requirements (which forced a new applicant to find a registered voter who could vouch that he or she was a person of good character).

Section 5 of the Act provides federal oversight of jurisdictions with a history of discriminatory conduct; this list currently includes Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia, and parts of California, Florida, Michigan, New Hampshire, New York City, North Carolina, and South Dakota. These jurisdictions cannot implement any election law changes until they have demonstrated to the U.S. Justice Department or a federal court that the change will not have the effect of diminishing minority voting opportunities or rights, and that the change is not intended to do so.

The Act also prohibits any voting practice that results in a denial or abridgment of the right to vote. While Section 2 of the Act has most often been applied in challenges to redistricting or at-large electoral systems, it applies to any practice that dilutes minority-voting rights. In an at-large electoral system, for example, a white majority can effectively prohibit African American voters from electing a candidate of their choice. Through litigation under the Voting Rights Act, such an electoral system could be changed to one with single-member districts, thereby giving minority voters the opportunity to cast a meaningful ballot. The Act also provides crucial protection for language minorities, such as translation of ballots and assistance at the polls.

The effect of the Voting Rights Act has been revolutionary. While in the early 1960's, the registration rates of blacks lagged behind those of whites by 22 to 63 percentage points across the Southern states, the registration rates for blacks and whites today are nearly comparable. Black-elected officials were virtually unknown in the South before 1964; now blacks hold at least one congressional seat and a large number of state legislative seats in each of the old Confederate states. Indeed, the proportion of legislative seats held by blacks is approximately equal to their share of the population in several Southern states.

VOTING RIGHTS INVESTIGATIONS

Many civil rights legal organizations investigate complaints of voting irregularities across the country. These problems may be violations of the Constitution, federal law, or state law. These may be practices carried out with a discriminatory intent, practices that have a disparate impact on minorities, or they may be errors that affect all voters equally, without regard to race. These irregularities take many forms, including:

• failure to follow the registration requirements in processing applicants;
• failure to notify residents of changes in polling place;
• disparate application of the voting procedures, such as requiring photo identification from African American voters and not from white voters;
• poor administration of the voting process, such as failing to provide voters with assistance in understanding how to cast their ballots;
• failure to follow language requirements for translation of ballots and the provision of assistance at the polls;
• fewer voting booths and election staff in precincts with large minority population;
• conducting criminal background checks at the polls for African American voters but not for white voters;
• tampering with the ballots;
• intimidation by law enforcement of voters trying to organize or exercise their right to vote; and
• harassment of voters at the polls.

DEMOCRACY AT RISK: RECENT ABUSES AND CHALLENGES IN FLORIDA

Several legal advocacy groups have sent experienced, civil rights lawyers to Florida since November 7 to investigate and document complaints received by civil rights and civic organizations and the allegations raised during last week's NAACP hearings in Miami. The hearings uncovered charges of voter intimidation, disparate treatment of voters and the denial of minorities' right to vote, all serious violations of state and federal Voting Rights laws. Starting on election day, African American, Haitian American and Latino voters placed hundreds of calls claiming to have been the victims of one or more of these offenses. Civil rights groups responded to the challenge by placing their lawyers in various Florida counties to determine both the extent of the voting irregularities in minority communities and what remedies might be available to individuals who are proven to have had their right to vote taken from them.

It is important to note that these are only the latest in a series of complaints in Florida by voters claiming to have been disenfranchised. Civil rights groups working to protect the voting rights of minorities have participated in lawsuits challenging Florida's practices several times in the past 11 years. They have won a majority of them.

In the early 1990's, the Lawyers' Committee intervened on behalf of black voters in DeGrandy v. Wetherall, a legislative and congressional redistricting case brought by a Hispanic Republican legislator. The legislative and congressional plans eventually adopted in that case were heavily influenced by the proposals of the Lawyers' Committee.

In its continuing efforts to defend the rights of all voters to have an equal opportunity in the electoral process in Florida, the Lawyers' Committee intervened on behalf of the NAACP and black voters in two redistricting cases where white voters challenged majority-black and Hispanic districts. In Johnson v. Mortham, the three-judge district court held that the congressional plan for Northern Florida violated the rights of white voters. In the Southern Florida case, Fouts v. Harris, the Lawyers' Committee and other interveners were able to defeat efforts to dismantle its redistricting plan by convincing the court that the case had been brought too late in the decade.

The Lawyers' Committee was successful in Lawyer v. United States, in which the Supreme Court upheld the constitutionality of a majority-minority state senate district in Florida and the legality of a settlement plan that resulted in a redrawn district.

The Lawyers' Committee also brought two judicial election cases in Florida - Nipper v. Smith in Duval County and Davis v. Chiles in Leon County. While unsuccessful in these cases, it was able to focus crucial public attention on the need for judicial independence and fair systems for the election of judges.

Finally, in September 2000, the Lawyers' Committee, the Brennan Center for Justice at the New York University School of Law, and private attorneys in Florida, filed suit in federal court in the Southern District of Florida on behalf of eight plaintiffs and a class of ex-felons, seeking to nullify Florida's constitutional and statutory provisions disenfranchising those convicted of felonies. The suit, Thomas Johnson v. Jeb Bush, raises claims under Section 2 of the Voting Rights Act and the Fourteenth and Twenty- fourth Amendments for intentional racial discrimination, for disproportionate impact on African Americans, for lack of a legitimate governmental purpose, and for instituting a de facto poll tax for voter registration.

PERSONAL ACCOUNT OF VOTING IRREGULARITIES
Donisse DeSouza

To interview Ms. DeSouza contact Ed Jackson, Advancement Project, (202) 728-9557, (202) 251-3894 (cell phone), edjacksonadvproj@aol.com.

Donisse DeSouza is an African-American woman who resides in Miami, Florida. She has been registered to vote in Florida since 1982 and has voted in all major elections. DeSouza has lived in the same residence for the past six years. Prior to the Nov. 7th election day, DeSouza received a new Voter ID Card because her polling place had been changed.

On Election Day, DeSouza went to the polling place listed on the new Voter ID Card - Richmond Fire Station # 43. She waited until late in the day so she could pick up her five-year old son and take him with her, to teach him about the importance of voting. DeSouza arrived in the vicinity of the polls at 6:30 pm, but a police officer was keeping voters' cars in a long line waiting for parking spaces. A small lot provided the only place for voters to park. After waiting to park for approximately 20 minutes, DeSouza entered the polling place at 6:50 p.m. DeSouza presented her driver's license and voter registration card to a poll worker who was white. The poll worker responded that DeSouza was not listed on the registration rolls. DeSouza was instructed to move to another line to address the issue. DeSouza stood in the other line where approximately fifteen other persons stood. Other persons joined the line behind DeSouza. She and others standing in line were informed at 7 p.m. that the polls were closed. The persons in this line were not offered an affidavit ballot or any other assistance; they were told that nothing could be done if their names were not on the registration rolls. These citizens were ultimately refused the right to vote. Many other voters were locked out of the polling place due to inadequate parking facilities. A majority of the residents in this precinct are African American.

As a result of this denial, DeSouza felt stripped of rights and violated. DeSouza's son had been told that he was going to help vote. He cried for a long time when DeSouza told him that they had not been allowed to vote.

After the election, Ms. DeSouza went to the Board of Elections and was told that her name actually did appear on the voter register and that she should have been allowed to vote. She was also told that all voters inside the polling place at 7 p.m. should have been permitted to vote and that the Board of Elections continued to take calls and clear up irregularities after 7 p.m.

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