A Call for Justice

by Paul Lukasiak
August 2001

The "reform" legislation recently passed by the Florida legislature would be as discriminatory and anti-democratic as the laws being "reformed." The Department of Justice must not grant pre-clearance.

To the Department of Justice:

Among the myriad injustices discovered in the 2000 presidential election in Florida, the willful disenfranchisement of over 1000 eligible voters — a disproportionate number of whom were African Americans — stands out. Florida recently passed election "reform" bill does not merely fail to address this problem, it exacerbates it. This bill (SB1118) was submitted to you for Section 5 pre-clearance as submission #2001-1693 on June 15, 2001.

There are three relevant sections of this bill on which I hope you will take the following actions:

The Voting Rights Section's web site provides the best possible justification of these actions, where it says:

In Allen v. State Board of Elections, 393 U.S. 544, 565 (1969) [footnote omitted], the Supreme Court stated that the coverage of Section 5 was to be given a broad interpretation.

    We must reject the narrow construction that appellees would give to § 5. The Voting Rights Act was aimed at the subtle, as well as the obvious, state regulations which have the effect of denying citizens their right to vote because of their race. Moreover, compatible with the decisions of this Court, the Act gives a broad interpretation to the right to vote, recognizing that voting includes "all action to make a vote effective."

    The legislative history on the whole supports the view that Congress intended to reach any state enactment which altered the election law of a covered State in even a minor way.

Any change affecting voting, even though it appears to be minor or indirect, returns to a prior practice or procedure, ostensibly expands voting rights, or is designed to remove the elements that caused objection by the Attorney General to a prior submitted change, must meet the Section 5 pre-clearance requirement.
By permitting the current law to be repealed, and rejecting the new law, you will not only be preventing the further disenfranchisement of African American voters in the Florida's five "pre-clearance" counties (Hillsborough, Monroe, Hardee, Hendry, and Collier), you will be ensuring the rights of all Floridians to exercise their right to vote.

The reasons for pre-clearing section 73, and refusing to pre-clear sections 70 and 71, fall into three main areas.

Below is a detailed explanation of the facts cited above that do not merely support my suggestions, but indicate that criminal investigations of civil rights violations should be undertaken pursuant to the administration of the current felons list laws, and that the actions of Florida's state election officials provide cause for the Department of Justice to expand its pre-clearance jurisdiction to include the entire state.


Impact of SB2002 on pre-clearance Submission 2001-1693 (for SB1118)

On June 17, 2001, the Florida Legislature passed bill SB2002. SB2002 is an appropriations bill that, as passed in both houses of the Florida Legislature, had nothing to do with the felons purge law. However, SB2002 was amended in a House-Senate conference committee to resolve other differences in the bill-and included among the changes was the addition of Section 44, which amends the current felons purge law. According to the Department of Justice web site, there has been no pre-clearance submission associated with SB2002.

Because this bill was passed subsequent to SB1118, and became law on June 29, 2001, it creates a conflict with the provisions of SB1118.

Section 44 of SB2002 goes into effect immediately, while the relevant portions of SB1118 does not go fully into effect until June, 2002. The passage of SB2002 creates a rather confusing situation regarding determining the status quo for judging whether SB1118 has a discriminatory impact. Is "status quo" against which the provisions of SB1118 are compared the policies and procedures in place at the time that SB1118 was passed (e.g. the policies and procedures as of this moment)? Or is the "status quo" the policies and procedures that will be in effect at the time the felons purge portions of SB1118 are implemented (June 2002)? From my understanding of the law, the latter "status quo" would be the appropriate one, and thus until that "status quo" exists and it is evaluated, there is simply no way that the felons purge provisions of SB1118 can be implemented. However, regardless of which "status quo" is the appropriate one, unless and until these rather complicated questions are resolved, providing pre-clearance to the felons purge laws found in SB1118 would be wholly inappropriate.

Although the amendment in SB2002 mirrors in many ways the provisions of 98.0975 (1-4), the procedures and policies that would be used to implement the amended 98.0975 were never submitted for pre-clearance review. The history of these policies and procedures show that they were constantly evolving, often in ways that resulted in a disparate impact on African American voters in the Florida counties subject to pre-clearance review. Before permitting the felons purge portion of SB2002 to be implemented, it is incumbent upon the Justice Department to do a full review of the existing procedures and practices that will determine how this new law will be implemented.

In sum, the passage of SB2002 with an amendment concerning the felons purge laws in Florida makes it virtually impossible for the Justice Department to pre-clear the new felons purge law found in SB1118 that has been submitted for pre-clearance.

Within Florida, many officials question whether SB2002's felons purge provision is enforceable because of possible technical deficiencies with the law. But no officials will go on the record as declaring definitively that the law cannot be enforced, and these officials agree that the decision regarding the enforceability of SB2002 is up to Florida DoE Director Clay Roberts and the Florida courts. Roberts says he does not know if the law is enforceable, and is having it looked at by experts on statutory construction. But if it is enforceable, Roberts says he will implement the bills provisions.

When I brought the existence of SB2002 to the attention of attorneys in the Justice Department, it was clear that they were completely unaware that this law had been passed. Under Section 5 of the Voting Rights Act, the Department of Justice is authorized to seek an injunction against implementation of laws, policies, and procedures that have not been pre-cleared. Private citizens in Florida can also file for an injunction under Section 5, but under the circumstances a pro-active approach to this issue would not merely be appropriate under the law, but would enhance the Justice Department's credibility on civil rights issues, while the failure to seek such an injunction by the Department of Justice would raise serious questions regarding this administration's commitment to civil rights.

Instead, apparently, the Voting Rights Division is relying upon the verbal assurances of people who are not involved with the administration of election law that the law is unenforceable and/or will not be implemented. And the people being relied upon refuse to have their opinions quoted publicly. At this point, there is nothing stopping Florida from telling the Department of Justice that the law is unenforceable, then changing its mind after 98.0977 is pre-cleared and saying it is enforceable, and submitting it for pre-clearance. Such an eventuality would result in pre-clearance procedures being turned into a rather hopeless muddle. Would the status quo be the provisions of 98.0977 that have not yet been implemented? Would the status quo for pre-clearance of 98.0977 become the provisions in SB2002, and thus require a new pre-clearance submission for 98.0977. Until the question of the status of the SB2002 felons purge provisions are definitively resolved, FS 98.0977 should not be pre-cleared.


Matters Concerning the Administration of the Current Laws

Sufficiency of Pre-1998 Florida Law to Meet the State's Legitimate Needs

The net result of pre-clearing section 73 (rescinding 98.0975) and not pre-clearing Sections 70 and 71 will be to return the law to its pre-1998 state. The information provided by the State of Florida regarding submission 1998-1919 provided a partial review of the state of Florida's then-current laws when it came to removing felons, emphasizing the fact that there was no mechanism for data to be shared between Florida counties. This review completely ignored other relevant portions of Florida law.

In addition to the provisions cited by Florida in 1998 [FS 98.093 (1-4)] when it described the current state of the law, Florida also had on its books another provision [FS 98.093 (5)] that allows for the removal of voters found to be ineligible. This section reads

  1. Nothing in this section shall limit or restrict the supervisor in his or her duty to remove the names of such persons [e.g. individuals who are deceased, mentally incapacitated, or convicted of felonies without having their rights restored] from the registration books after verification of information received from other sources. [bold added]
Florida also criminalizes non-eligible voters for registering or voting despite knowing they are ineligible.
FS 104.011 (2) A person who willfully submits any false voter registration information commits a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083.

FS 104.15 Unqualified electors willfully voting. -- Whoever, knowing he or she is not a qualified elector, willfully votes at any election is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

In other words, returning the law to its pre-1998 state in no way makes it impossible for Florida to enforce its prohibition against felons voting. What it would do, however, is ensure that ONLY truly ineligible voters are removed from the rolls. There is no pressing need, therefore, for a new law whose provisions are vague, ambiguous, and represent a decided threat to the rights of black Floridians. Given the confusion caused by the passage of SB2002, the most practical way to resolve all of the various issues raised by the Florida's felons purge is to return to the status quo ante — the condition of the law prior to 1998 — by pre-clearing section 73 of SB1118 which repeals the current felons purge laws, and denying pre-clearance to new felons purge laws.

Florida's Assurances Regarding Non-Discriminatory Impact Are Not Credible

  1. A History of Deceit in the pre-clearance of Florida's Present Felons Purge Law

    There is considerable evidence that, in obtaining pre-clearance for the felons purge law currently on the books, Florida officials engaged in a campaign of deceit, deception, and misrepresentation regarding the manner in which the felons list would be implemented. An examination of the publicly available documents relating to pre-clearance submission 98-1919 reveals that during the pre-clearance period (May 29 through August 10, 1998), Florida:

    • Represented the law as "just another tool" for "normal list maintenance activity."
    • Provided documents to the Voting Rights Division that implied that the lists would be accurate.
    • Provided documents to the Voting Rights Division that the lists would be concerned with in-state felons only.

    At the same time that Florida officials were making these claims, documents that were withheld from the Voting Rights Division demonstrate that:

    • Florida was planning on taking a "wide net" approach, and had sent out an invitation to bid on May 29, 1998, that solicited data processing services that required only an approximate first name match.
    • Florida was planning on using out-of-state felons data, and had sent out a request for proposals on July 13, 1998, that solicited data processing services for data from every other state in the nation.

    And according to the publicly available documents related to submission 98-1919, despite the specific request from the Voting Rights Division for information regarding methodology and criteria to be used in compiling the lists, copies of an existing contract and other documents relating to methodology and criteria were never submitted.

  2. Failure to Pre-Clear Changes in Policies and Procedures in the Administration of the Felons Purge Law

    Florida was constantly changing its policies and procedures regarding the administration of the felons purge law once pre-clearance for that law was received. In many cases, because there were no procedures in place that properly addressed the issues raised by the administration of the felons purge laws, brand new policies and procedures were implemented. Many of these changes resulted in the enhanced likelihood of the widespread disenfranchisement of eligible voters, with strong potential for a disparate impact on minority voters.

    Among these changes in policies and procedures were:

    • At the time the law was pre-cleared, clemency status was checked manually against the files of Florida's Office of Executive Clemency prior to lists of "ineligible felons" being sent to the counties. Later, no manual verification of clemency status was done; instead clemency status was checked using a brand new database and brand new (and constantly evolving) "matching" computer software.
    • The criteria used in determining what constituted a "match" between a felon and a registered voter was constantly being changed. A "wide net" approach was consistently used that guaranteed that a high percentage of eligible voters would be listed as felons, but at no point after pre-clearance was received was the extent of the inclusion of eligible voters on the lists provided to the counties of any significant concern to Florida State Election officials when changes in criteria and methodology were being made.
    • At the time the law was pre-cleared, only individuals who had been convicted of felonies in Florida were included on the purge lists. For the lists compiled for the 2000 election cycle, individuals who had been convicted of felonies in other states were added to the lists, including those whose right to vote had been restored.

    Many of the same individuals who were directly involved in the pre-clearance of the felons purge law and were thus fully aware of the importance the Department of Justice placed on practices and procedures during the pre-clearance process were subsequently involved in changing the practices and procedures that were in place at the time the felons purge law was pre-cleared.

  3. Non-Responsibility of Florida State Election Officials

    When reviewing the pre-clearance submissions from Florida, it would be wise to keep in mind that the Secretary of State and the Director of the Division of Elections have both claimed under oath, during the hearings held by the United States Civil Rights Commission, that they have no power to prescribe and/or proscribe specific procedures or policies. The state officials claim that their functions are, for all intents and purposes, purely advisory, and that they have no power ensure that the laws themselves are followed.

    And when questioned about his own role in enforcing the election laws of the State of Florida, the Florida's Attorney General deferred to state's election officials.

    In other words, regardless of what the State tells you, or what assurances you are given regarding the manner in which the laws under review will be admitted, there are absolutely no guarantees that the policies will be followed in the counties.

    Indeed, both the testimony of county election supervisors before the Civil Rights Commission, and an examination of the email files of Emmett "Bucky" Mitchell, IV (Assistant General Counsel in Florida's Division of Elections) for the 1999–2000 period confirms this. Florida attempted to create "verification procedures" pursuant to the administration of the 1998 felons purge law, but the testimony and emails demonstrate the counties did not follow these procedures with any consistency. Although some of this may lie with the extremely complicated, confusing, and ever-changing information and instructions given to the county supervisors, the extent of the phenomenon is compelling evidence that assurances given by the state on pre-clearance matters are, for all intents and purposes, of no practical value whatsoever.

  4. Misrepresentation by Florida officials of the administration of the current felons purge laws

    The record of misrepresentation and deception by Florida officials when it comes the administration of the current felons purge law is far too massive at this point for me to provide an exhaustive review. Hopefully, two examples will suffice. An examination of the Emmett Mitchell emails demonstrate the extent to which officials from the State of Florida have attempted to cover up the discriminatory nature of the felons purge.

    Under oath, Clay Roberts claimed that data on individuals removed because of felony convictions was not compiled by the state. Yet in an email dated March 13th, 2000 from Janet Muldrow of the DoE, Mitchell was send statistics on the number of ineligible voters who had been removed, broken down by felons and duplicate registrations, and this memo indicated that "SOE's are reporting quarterly: Jan, Apr, Jul, Oct." The DoE has been extremely uncooperative with researchers attempting to determine the nature and extent of the felons purge, referring them to the counties for data — and many of the counties themselves have been equally uncooperative.

    Last February, Janet Keels claimed that the policy of the Office of Executive Clemency has always been not to insist that felons whose rights were restored automatically that they must also receive clemency in Florida. She claimed that a memo that was sent out implying that out-of-state felons must apply for clemency in Florida unless they have been given clemency by a clemency board or other such body had been misunderstood. She further claimed that the policy of her office was to assist out-of-state felons whose rights had been automatically restored in making sure they had the right to vote in Florida. But an email dated December 12, 1999, Mitchell wrote: "I spoke with Janet Keels, the head of the Clemency Office. After a recent court decision, the Office of Executive Clemency (Fla.) will accept an out-of-state restoration of civil rights, if the individual has an order or certificate from the Governor, Parole Board, Clemency Office, etc. of the applicable state. If the individual simply serves a complete sentence and doesn't have some type of certificate or order, he must apply for clemency in Florida."

    The failure of State election officials to tell the truth about the administration of the felons purge laws in 2000 raises grave issues when it comes to the credibility of any statements of information provided to the Department of Justice regarding the discriminatory impact of the current or new law.

Use of Current Law to Discriminate

  1. Florida used discriminatory criteria and methodology in creating the felons purge lists.

    According to the United States Civil Rights Commission, Florida included felons from 10 other states in compiling the list of felons sent to the counties in 2000. And according to ChoicePoint/DBT, the company who compiled the lists, Florida state election officials were solely responsible for choice of which states would be used in compiling those lists. Of the 10 states chosen by Florida, five (#3 Wisconsin, #4 Connecticut, #6 New Jersey, #9 Illinois, #10 Ohio) are among the top 10 states in terms of disproportion between the percentage of black citizens and the percentage of incarcerated blacks. In 8 of the 10 states over 40% of the incarcerated population is African American (South Carolina 69%, Virginia 68%, Illinois 65%, New Jersey 64%, Ohio 52%, Wisconsin 48%, Connecticut 47%, Texas 44%), and over 50% is nonwhite. Only three states had few than the 47% national percentage for incarcerated blacks. Texas, which has slightly less than the national percentage of incarcerated blacks, had 70% nonwhite incarcerations (the national nonwhite incarceration percentage is 66%). (Although current incarceration rates are not an exact measure of the percentage of ex-felons who are African American or nonwhite, these numbers do provide some idea of the racial disparities involved.) In 1998, the 2nd District Court of Appeals of the State of Florida issued a sweeping and unambiguous decision regarding the state's role in denying rights to individuals who had been convicted of crimes in other states, but whose rights had been restored (or never lost) in those states. In Schlenther v Florida Department of State, the Court wrote:

    At the time appellant moved to Florida in 1973, he did so in full possession of all civil rights of Connecticut citizenship. He did not arrive here under a disability. To the contrary, he arrived as any other citizen, with full rights of citizenship. Appellant must not now be required, twenty-five years later, to ask this State to restore his civil rights. They were never lost here. …Once another state restores the civil rights of one of its citizens whose rights had been lost because of a conviction in that state, they are restored and the State of Florida has no authority to suspend or restore them at that point. The matter is simply at an end. [italics added]

    This opinion was affirmed in 1999, when the 1st District Court of Appeals ruled in Doyle v Department of State.

    Despite these court decisions, and the unambiguous wording of the felons purge statute requiring lists of felons whose "rights had not been restored", Florida included in its purge of out of state felons over 2700 individuals from states (Texas, Connecticut, South Carolina, Illinois and Wisconsin) that restored the rights of felons automatically. Florida state officials also required that these individuals who arrived in Florida "with full rights of citizenship" apply to the Florida Office of Executive Clemency in order to vote in Florida.

    Among the states that did not provide clemency, Florida was far more aggressive in getting people on the felons list than on determining if they had received clemency in that state. Florida required that DBT/ChoicePoint cast the same "wide net" in these other states that it did in Florida, but the verification process for determining clemency status of those identified as felons consisted of sending each of these states a list of supposed felons, and asking those states to determine the clemency status of those individuals.

    The selective use of states with higher than average black/nonwhite felons means that a disproportionate number of blacks and nonwhites were targeted from the voting rolls in 2000. The compiling of lists of out of state felons that included states that restored rights automatically resulted in the illegal disenfranchisement of a disproportionate percentage of African Americans. And the failure to pursue clemency status data with the same enthusiasm as felon status data likely had a disproportionate impact on African American voters as well.

    Furthermore, the use of a "wide net" approach that required far less than an exact match for inclusion on the felons lists also probably had a discriminatory impact. The legacy of slavery includes the fact that there is far less variety in the surnames of African Americans than there is in the "white" population, and a far higher percentage of blacks with felony convictions in Florida than whites with felony convictions in Florida. As a result, there is an increased likelihood that African American nonfelons would match the data profile of actual felons in Florida.

    The "verification" process that was used in Florida to determine voter eligibility resulted in further likely discriminatory impact. African Americans in Florida are well aware of that state's extensive history of racial discrimination. As a result, there is a widespread perception that the people in control of the state government (and often, the county government) are hostile to the concerns of African Americans. Letters sent to those on the lists placed the burden of proof on the recipient of the letter to prove they were eligible to vote. Very often, these letters identified the recipient as criminals. The intimidation factor involved in this process should not be underestimated, insofar as it required a disproportionate percentage of African Americans to confront governmental bureaucracies perceived as hostile. Given the political climate in Florida, is it not unlikely that African Americans would disproportionately choose to not "rock the boat" in an effort to "fight City Hall", and would have acquiesced to the denial of their right to vote.

  2. Selective enforcement of Florida's anti-election fraud laws

    Florida has numerous anti-election fraud on the books, but has pursued enforcement of the felons purge law with a vigor and intensity that is unmatched.

    The exact same law that authorized the felons purge also authorized a purge of those found to be mentally incompetent to vote, yet Florida State officials took no steps at all to enforce that provision of the law. And while out-of-state databases were checked to determine felon status, there was no similar effort to compile lists of voters who were registered in more than one state.

    Florida has made no effort to ensure that individuals who vote absentee are eligible under the law to do so. And in 2000, Florida state officials not only ignored the fact that people vote absentee without a legal reason to do so, they ignored the fact that voters were encouraged to vote absentee in violation of Florida's own election laws. And Florida has also ignore the fact that absentee ballot requests were illegally tampered with in at least two counties.

    In all of these cases, the failure to take any steps to enforce the law has had a disproportionate impact on African American voters, because the individuals who cast absentee ballots as a result of these violations were overwhelming white. The solicitation from the Governor urging voters to "vote from the comfort of your own home" was sent out almost exclusively to Republicans. Democratic Party solicitations for absentee votes listed the legal reasons that voters could vote absentee. The individuals who submitted invalid absentee ballot applications that were subsequently altered by third parties in order to make them valid were overwhelmingly Republican as well. Democratic Party representatives were never afforded the same opportunities to "fix" defective absentee ballots from their own party members.

    In Florida, and in the five pre-clearance counties, African Americans make up only a small percentage of Republican voters, and only a small percentage of African American voters are Republicans. African Americans make up a much larger proportion of registered Democrats, and the vast majority of African Americans are registered as Democrats.

    The net result of this failure to enforce Florida's anti-election fraud laws was a dilution of the African American vote statewide — a dilution which affects the power of each African American vote cast in the pre-clearance county in statewide elections.

    The selective enforcement of anti-fraud laws also discourages African Americans from voting throughout Florida, including in the pre-clearance counties. A clear and unambiguous message is being sent to African American voters: if you are white, you can get away with anything — but if you are Black, we will do everything we can to keep you from exercising your right to vote.

  3. Failure to take steps to reduce discriminatory impact of felons purge

    Prior to the implementation of the felons purge laws, application for restoration of the right to vote was a complicated, time consuming, and often expensive process. Yes, despite the knowledge on the part of the state that it was about to engage in a sweeping effort to remove tens of thousands of ex-felons from the voting rolls, the Florida Clemency Board took no steps to streamline the process by which rights would be restored to former felons.

    Individuals who had lived as productive citizens for decades in the state were suddenly denied the right to vote; these individuals were usually not even aware of the fact that they were ineligible, or that a previous run-in with the law had resulted in a "felony" conviction. Yet no funds were appropriated. No special programs were set up to encourage individuals to apply for clemency, or to provide them with help in navigating the clemency bureaucracy. In sum, there was no effort to prevent these individuals from losing their right to vote, or once lost, to encourage and aid the restoration of voting rights.

    Given that the percentage of ineligible felons who are African American is much greater than the percentage of Africans in Florida as a whole (as well as in the pre-clearance counties themselves) this failure to take steps that would streamline the process at a time when Florida could expect a significant increase in applications for clemency demonstrates a decided disregard for the rights of a disproportionate percentage of African American voters.

Constitutionality of the Felons Purge

Florida has a history of using laws prohibiting felons from voting as a tool of racial discrimination. That history, and the current discriminatory impact of Florida's current law and practices, raises questions of the Constitutionality of the new felons purge statute that should be considered prior to pre-clearance of 98.0977. These issues are best addressed in the complaint filed in conjunction with a lawsuit brought by the Brennan Center for Justice at the NYU Law School on behalf of a group of Florida minority ex-felons.

Additional Information Relevant to pre-clearance Is Being Withheld

According to the Voting Rights Division Freedom of Information Office, documents that shed light on Florida's history on pre-clearance of statutes of this kind are being withheld because there is an ongoing investigation, and "disclosure" of these documents would have a "reasonable probability of interfering with enforcement proceedings." The withholding of these documents makes it virtually impossible to provide the necessary evidence to most effectively object to pre-clearance of the felons purge law.

The existence of a Justice Department investigation on possible violation of Section 5 pre-clearance laws should not contribute to the possibility that 98.0977. This is especially true, given that the specific possible violations being investigated are connected to the pre-clearance of the statute that 98.0977 is replacing. It is also highly inadvisable for the Voting Rights Section 5 pre-clearance group to make the decision to pre-clear 98.0977 when the investigation of the pre-clearance of the previous law is underway.


The above considerations provide ample justification for the Voting Rights Division to deny pre-clearance to any proposed :"felons purge law" in Florida, regardless of how innocuous it appears. Florida officials have demonstrated a willingness to use felons purge laws in a discriminatory fashion, and have shown to be less than credible regarding both their intentions and how the law has been administered. And issues of conflicting statutes, constitutionality, availability of relevant information, and ongoing investigations certainly preclude the pre-clearance of any new felons purge law at this time.


Deficiencies in the Proposed New Felons Purge Law

In addition to the general considerations cited above, there are specific deficiencies in the proposal felons purge law that in and of themselves will have a discriminatory impact. Many other aspects of the law provide additional opportunities for discriminatory impact if administered improperly.

The Florida Chapter of the American Civil Liberties Union has outlined some of these considerations in its letter of July 22nd, 2001, objecting to the pre-clearance of three sections of SB1118, including the new felons purge law. Thus those considerations do not need to be repeated here. But the Florida letter does not address two issues that must be considered before pre-clearance is granted.

The new law requires that a letter be sent to ever voter where there is a "suggestion" that the voter is ineligible to vote for a variety of reasons, among which is the conviction of a felony. This letter is required to include "a statement as to the reason for the voter's potential ineligibility to register to vote "

Given the political climate in Florida, a letter stating that someone has been identified as a potential felon who is not eligible to vote in Florida has significant potential to intimidate African American and other minority voters to a far greater extent than it would white voters. Florida's shameful history of racial discrimination not only in elections but in education, law enforcement, provision of services, and other areas has a significant impact on African American perceptions regarding the intentions of state and local authorities. This impact on perceptions is exacerbated by the current empowerment of a state legislature and governor considered to be openly hostile to African American voters by those voters themselves. And very often, local governmental official are also perceived as hostile.

The law is worded in a way that allows eligible voters to be sent these letters on the mere "suggestion" that they are felons. The intimidation factor involved in being identified as potentially ineligible to vote because of a felony conviction in an environment in which public officials are perceived as hostile cannot be underestimated, This is especially true where "out-of-state felons" are concerned, because few people are aware that if they came to Florida with their voting rights intact, Florida cannot deny those rights. Granting pre-clearance before such wording is determined to have no discriminatory impact would be unjustifiable under Section 5.

Secondly, there is a clearly implied threat to county supervisors in 98.0977 that encourages them to provide no benefit of the doubt to the citizen when there is a question regarding that individuals eligibility status. In what appears to be a unique occurrence within the Florida election code as it pertains to the duties of county supervisors, subsection 6 provides the supervisors with a direct threat of incarceration for willful failure "to perform his or her duties under this section." I can find no other instance where county supervisors duties are defined in the election code accompanied by a notice that failure to perform those duties will result in penalties.

Over 1000 fully eligible voters were removed from the registration rolls in 2000 because the lists were intentionally inaccurate. The only reasons that thousands more eligible voters were not removed was because many county supervisors "willfully ignored" the procedures outlined in the statutes. These supervisors did so because the lists were so inaccurate that they knew that by following the statutory procedures, they would be disenfranchise many eligible voters..

This open defiance of statutory procedures was the sole reason that there was not a far greater discriminatory impact against African American in Florida's 2000 election. It is clear that the intent of this specific provision of 98.0977 is to discourage county supervisors from protecting the constitutional rights of Florida citizens. Because the inaccuracies in the 2000 lists had a disparate impact on African American, and because the state legislature was well aware of claims of a disparate impact, 98.0977(6) constitutes sufficient evidence of discriminatory intent on the part of the state legislature in passing the felons purge law to completely deny pre-clearance to 98.0977 without any further consideration on the part of the Voting Rights Division.

Finally, it is highly likely that Florida officials will attempt to claim the "provisional ballot" provision of the SB1118 will operate as a "fail-safe" mechanism to prevent eligible voters erroneously removed from the voting rolls as felons from being denied the right to vote. But the provisional ballot provision is not a panacea for problems that may arise out of the implementation of 98.0977.

The existence of the provisional ballot statute does not in any way remove the discriminatory impact if there is a disproportionate impact on African Americans in the processes that lead to the erroneous removal of eligible voters. Instead of simply denying people the right to vote, it places an additional burden on them in order to exercise that right.

Ultimately, however, the provisional ballot law is simply not applicable to the question of whether or not someone has been removed from the voting rolls erroneously after being determined to be a felon by the county supervisor of elections.

The procedure outlined in the law provides provisional ballots to voters "whose eligibility cannot be determined". In the case of someone identified as a felon, the determination has been made that the individual is NOT eligible to vote, thus the law does not provide for provisional ballots for people erroneously identified as felons.

If the person is provided a provisional ballot, the law does not allow for it to be counted, The law states "(2)(a) [t]he county canvassing board shall examine each provisional ballot to determine if the person voting that ballot was entitled to vote at the precinct in the election and that the person had not already cast a ballot in the election. (b)(1) If it is determined that the person was registered and entitled to vote at the precinct in the election…" If someone was removed as a felon, they therefore were not registered, and thus the standard of "registered and entitled to vote" cannot be met. Additionally, the supervisor of elections, who is a member of the canvassing board, had already determined that the person was NOT "eligible to vote" The way the statute is written, the proper decision of the canvassing board when confronted with a provisional ballot from someone who has been removed from the roles as a felon is to simply ignore the ballot.

The form that is filled out by the voter in order to cast a provision ballot provides no opportunity for the voter to explain the basis on which they claim their eligibility. Thus, even on the off chance that the canvassing board would ignore the specific standards and procedures outlined for counting provisional ballots, there is no way for the canvassing board to determine the specific problem associated with the voters claim of eligibility. There are no standards or procedures regarding verification of eligibility to vote in cases where someone may have been erroneously identified as ineligible. There is nothing in the statute that in any way provides for or requires the state law enforcement and clemency bureaucracies to respond in a timely fashion to inquiries regarding provisional ballots. And, in the instances where the voter has been removed on the basis of an out-of-state conviction, there is no way that the State of Florida can require bureaucracies in other states to respond in a timely fashion.

It is clear from the wording of the provisional ballot statute that it is not, and is not intended to be, a panacea when it comes to the erroneous removal of voters from the registration roll. Furthermore, Florida Supreme Court precedent mitigates against the use of discretion on the part of county supervisors that would permit the use of provisional ballots in this fashion.

The assumption that county supervisors have wide discretion in the interpretation of statutes is based on the Florida Supreme Court's decision in the 1975 Boardman v Esteva case and its antecedents which expanded on Boardman. But in the 1998 Beckstrom v Volusia County Canvassing Board case, the Florida Supreme Court took note of what had become a virtual culture of "lawlessness" in the administration of election laws, and made it abundantly clear that the statutes themselves must be the basis for election administration, and that no exercise of discretion that was contrary to statutory provisions was proper. In Beckstrom, the Court wrote:

We expressly state that our decision in Boardman is not to be read as condoning anything less than strict adherence by election officials to the statutorily mandated election procedures. Such adherence is vital to safeguarding our representative form of government, which directly depends upon election officials' faithful performance of their duties.

"Strict adherence", when it comes to provisional voting, would require that no provisional ballots be given if it can be determined that a voter has been removed from the rolls for cause. If someone who has been removed from the rolls because of being identified as a felon, and is given a provisional ballot, "strict adherence" would require the canvassing board to reject the provisional ballot on the basis that the individual is not registered to vote at the time of the election.

The Justice Department would do well to keep in mind the "strict adherence" standard outlined by the Florida Supreme Court when reviewing all of Florida's changes in election law during pre-clearance proceedings. Suggestions by the state of Florida that "discretion" would be used when strict adherence to the statutory provisions would result in a discriminatory impact cannot be considered authoritative, given the Beckstrom decision.

Copyright © 2001 by Paul Lukasiak
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