The United States Commission on Civil Rights, charged with the statutory duty to investigate voting rights violations in a fair and objective manner, has produced a report that fails to serve the public interest. Voting Irregularities Occurring in Florida During the 2000 Presidential Election is prejudicial, divisive, and injurious to the cause of true democracy and justice in our society. It discredits the Commission itself and substantially diminishes its credibility as the nation�s protector of our civil rights.

The Commission�s majority report is a partisan document that has little basis in fact. Its conclusions are based on a deeply flawed statistical analysis coupled with anecdotal evidence of limited value, unverified by a proper factual investigation. This shaky foundation is used to justify charges of the most serious nature-questioning the legitimacy of the American electoral process and the validity of the most recent presidential election. The report�s central finding-that there was "widespread disenfranchisement and denial of voting rights" in Florida�s 2000 presidential election-does not withstand even a cursory legal or scholarly scrutiny. Leveling such a serious charge without clear justification is an unwarranted assault upon the public�s confidence in American democracy.

Using all the variables in the statistical analysis in the majority report, Dr. John Lott, an economist at Yale Law School, was unable to find a consistent, statistical significant relationship between the share of voters who were African Americans and the ballot spoilage rate.

Furthermore, Dr. Lott conducted additional analysis beyond the report�s parameters, looking at previous elections, demographic changes, and rates of ballot spoilage. His analysis found little relationship at all between racial population change and ballot spoilage, and the one correlation that is found runs counter to the majority report�s argument: An increase in the black share of the voting population is linked to a slight decrease in spoilage rates, although the difference is not statistically significant.

Nothing is more fundamental to American democracy than the right to vote and to have valid votes properly counted. Allegations of disfranchisement are the fertile ground in which a dangerous distrust of American political institutions thrives. By basing its conclusion on allegations that are driven by partisan interests and which lack factual basis, the majority on the Commission has needlessly fostered public distrust, alienation and manifest cynicism. The intent of the partisan conclusions of the report is to label the outcome of the 2000 election as illegitimate, thereby calling into question the most fundamental basis of American democracy.

Obvious partisan passions not only destroyed the credibility of the report itself, but informed the entire process that led up to the final draft. At the Florida hearings, Governor Jeb Bush was the only witness who was not allowed to make an opening statement. The Chair, Mary Frances Berry, was quoted in the Florida press as comparing the Governor and Secretary of State to "Pontius Pilate... just washing their hands of the whole thing." On March 9, six commissioners voted to issue a "preliminary assessment"-in effect, a verdict-long before the staff had completed its review of the evidence.

The statistical analysis upon which many of the final report�s findings are based was conducted by an historian with close ties to Albert Gore, Jr. The report claims that "affected agencies were afforded an opportunity to review applicable portions"; in fact, affected parties were never given a look at the preliminary assessment, and had only ten days to review and respond to the final report, in violation of established procedures and previous promises. Our memoranda to the chief of staff throughout the process regularly went unanswered.

Most recently, a request for basic data to which we-and indeed, any member of the public-were entitled was denied to us. The Commission hired Professor Allan Lichtman, an historian at American University, to examine the relationship between spoiled ballots and the race of voters. We asked for a copy of the machine-readable data that Professor Lichtman used to run his correlations and regressions. That is, we wanted his computer runs, the data that went into them, and the software he used. Obviously, he could have easily given that to us. The Commission had the temerity to tell us that it did not exist-that the data as he organized it for purposes of analysis was literally unavailable. Professor Lichtman, who knows that as a matter of scholarly convention such data should be shared, also declined to provide it. Evidently, Dr. Lichtman and the majority on the Commission have no confidence in their own numbers and analysis.

Process matters. And that is why it is important to examine, with integrity, violations of the electoral process in Florida and other states. When the process is right, participants on another day can revisit the outcome-use the procedures (fair and thus trusted) to debate policy or to vote again. But when the process is corrupt, the conclusions themselves (current and future) are deeply suspect. The Commission investigated procedural irregularities in Florida; it should have gotten its own house in order first.

Had the process been right, the substance might have been much better. The Commission�s staff would have received feedback from Florida officials, commissioners, and other concerned parties, on the basis of which it might have revised the report. It should be consulting with commissioners in the course of drafting a report, including those who do not share the majority view. As it is, at great expense, the Commission has written a dangerous and divisive document. And thus it certainly provides no basis upon which to reform the electoral process in Florida or anywhere else.

In the pages below, we will argue:

I. The statistical analysis done for the Commission by Dr. Allan Lichtman does not support the claim of disfranchisement.

The most sensational "finding" in the majority report is the claim that black voters in the Florida election in 2000 were nine times as likely as other residents of the state to have cast ballots that did not count in the presidential contest, and that 52 percent of all disqualified ballots were cast by black voters in a state whose population is only 15 percent black.

The charge is unsupported by the evidence.

(a) Disfranchisement is not the same as voter error. The report talks about voters likely to have their ballots spoiled; in fact, the problem was undervotes and overvotes, some of which were deliberate (the undervotes, particularly). But the rest are due to voter error. Or machine error, which is random, and thus cannot "disfranchise" any population group. It was certainly not due to any conspiracy on the part of supervisors of elections; the vast majority of spoiled ballots were cast in counties where the supervisor was a Democrat.

The majority report argues that race was the dominant factor explaining whose votes counted and whose were rejected. But the method used rests on the assumption that if the proportion of spoiled ballots in a county or precinct is higher in places with a larger black population, it must be African American ballots that were disqualified. That conclusion does not necessarily follow, as statisticians have long understood.

We have no data on the race of the individual voters. And it is impossible to develop accurate estimates about how groups of individuals vote (or misvote) on the basis of county-level or precinct-level averages.

(b) The majority�s report assumes race had to be the decisive factor determining which voters spoiled their ballots. Indeed, its analysis suggests that the electoral system somehow worked to cancel the votes of even highly educated, politically experienced African Americans.

In fact, the size of the black population (by Dr. Lichtman�s own numbers) accounts for only one-quarter of the difference between counties in the rate of spoiled ballots (the correlation is .5). However it is clear we cannot make meaningful statements about the relationship between one social factor and another without controlling for or holding constant other variables that may affect the relationship we are assessing.

The more complex regression analysis that Dr. Lichtman conducted does not isolate the effect of race per se from that of other variables that are correlated with race: poverty, income, literacy, and the like. Or at least, he fails to provide the details-the regression models-essential to understanding his dismissal of these other factors. And, most important, he never reports how much of the variance between counties in the proportion of ballots spoiled can be explained by a more complex model, such as the one developed by our own expert, Dr. John Lott of the Yale Law School. Our model enables us to explain 70 percent of the variance (three times as much as Dr. Lichtman was able to account for) without considering racial composition at all.

In fact, using the variables provided in the report, Dr. Lott was unable to find a consistent, statistically significant relationship between the share of voters who were African American and the ballot spoilage rate. Further, removing race from the equation, but leaving in all the other variables only reduced ballot spoilage rate explained by his regression by a trivial amount. In other words, the best indicator of whether or not a particular county had a high or low rate of ballot spoilage is not its racial composition. Non-racial information is much more useful.

(c) The obvious explanation for a high number of spoiled ballots among black voters is their lower literacy rate. Dr. Lichtman offers only a cavalier discussion of the question, and his conclusion that literacy rates were irrelevant makes no sense. (In fact, the report itself recommends "effective programs of education for voters�") Moreover, the data upon which he relies are too crude to allow meaningful conclusions. They are not broken down by race, for one thing.

(d) First time voters: An important source of the high rate of ballot spoilage in some Florida communities may have been that a sizable fraction of those who turned out at the polls were there for the first time and were unfamiliar with the electoral process. Impressionistic evidence suggests that disproportionate numbers of black voters fell into this category. The majority report�s failure to explore-or even mention-this factor is a serious flaw.

(e) The Time Dimension: Most social scientists understand that the interpretation of social patterns on the basis of observations at just one point in time is dangerously simplistic. But that is all the majority report offers. It focuses entirely on the 2000 election returns. Dr. Lott did two analyses that take the time dimension into account.

He looked at spoilage rates by county for the 1996 and 2000 presidential races, and compared them with demographic change. A rise in a county�s black population did not result in a similar rise in spoilage rates, suggesting, again, that race is not the explanatory factor.

He also examined data from the 1992, 1996, and 2000 races, and found that the "percent of voters in different race or ethnic categories is never statistically related to ballot spoilage."

(f) County-level data v. Precinct data: The majority report, as earlier noted, speaks of black ballots as nine time more likely to be spoiled than white ballots. And it presents some precinct-level data, providing estimates based on smaller units that are likely to be somewhat closer to the truth than estimates based on inter-county variations. Dr. Lichtman�s own numbers show that county-level and precinct-level data yielded quite different results. Ballot rejection rates dropped significantly when the precinct numbers were examined, even though looking at heavily black precincts should have sharpened the difference between white and black voters, rather than diminishing it. Dr. Lichtman obscures this point by shifting from ratios to percentage point differences.

Dr. Lichtman�s precinct analysis is just as vulnerable to criticism as his county-level analysis. It employs the same methods, and again ignores relevant variables that provide a better explanation of the variation in ballot spoilage rates.

(g) Who Is Responsible for Elections? The majority report charges "disenfranchisement" and lays the blame at the feet of state officials-particularly Governor Jeb Bush and Secretary of State Kathryn Harris. In fact, however, elections in Florida are the responsibility of 67 county supervisors of election. And, interestingly, in all but one of the 25 counties with the highest spoilage rates, the election was supervised by a Democrat-the one exception being an official with no party affiliation.

Dr. Lott added another variable to the mix: the race of the election supervisor. And he found that having Democratic officials in charge increases the ballot spoilage rate substantially, but the effect is even stronger when that Democratic official is African American. Obviously no officials were out to disfranchise black voters, and the correlation points once again to the limitations of ecological regressions.

The majority report argues that much of the spoiled ballot problem was due to voting technology. But Democratic Party officials decided on the type of machinery used, including the optical scanning system in Gadsden County, the state�s only majority-black county and the one with the highest spoilage rate.

(h) Hispanics have been mostly forgotten. Hispanics are a protected group under the Voting Rights Act. Moreover, the majority report speaks repeatedly of the alleged disenfranchisement of "minorities" or "people of color." One section is headed "Votes in Communities of Color Less Likely to be Counted." And yet the crucial statistical analysis provided in Chapter 1 entirely ignores Florida�s largest minority group-people of Hispanic origin. The analysis in the Commission�s report thus excluded more Floridians of minority background than it included.

The analysis conducted by Dr. Lichtman treats not only Hispanics but Asians and Native Americans as well as if they were, in effect, white. He dichotomizes the Florida population into two groups, blacks and "nonblacks."

In the revised report, Dr. Lichtman did add one graph dealing with Hispanics in the appendix, but this addition to his statistical analysis is clearly only an afterthought. At the June 8th Commission hearing Dr. Lichtman stated he looked at this issue only at the last minute (literally the night before). Obviously, his primary analysis ignored Hispanics.

II. The Evidence Fails To Support the Claim of Systematic Disfranchisement

Based on witnesses� limited (and often, uncorroborated) accounts, the Commission insists that there were "countless allegations" involving "countless numbers" of Floridians who were denied the right to vote. This anecdotal evidence is drawn from the testimony of 26 "fact witnesses," residing in only eight of the state�s 67 counties.

In fact, however, many of those who appeared before the Commission testified to the absence of "systemic disenfranchisement" in Florida. Thus, a representative of the League of Women Voters testified that there had been many administrative problems, but stated: "We don�t have any evidence of race-based problems� we actually I guess don�t have any evidence of partisan problems." And a witness from Miami-Dade County, who said she attributed the problems she encountered not to race but rather to inefficient poll workers: "I think [there are] a lot of people that are on jobs that really don�t fit them or they are not fit to be in."

Without question, some voters did encounter difficulties at the polls, but the evidence fails to support the claim of systematic disfranchisement. Most of the complaints the Commission heard in direct testimony involved individuals who arrived at the polls on election day only to find that their names were not on the rolls of registered voters. The majority of these cases many due to bureaucratic errors, inefficiencies within the system, and/or error or confusion on the part of the voters themselves.

III The Commission Failed to Distinguish Between Bureaucratic Problems and Actual Discrimination

Other witnesses did offer testimony suggesting numerous problems on election day. But the Commission, in discussing these problems, failed to distinguish between mere inconvenience, difficulties caused by bureaucratic inefficiencies, and incidents of potential discrimination. In its report, the complaint from the voter whose shoes were muddied on the path to his polling place is accorded the same degree of seriousness as the case of the seeing-impaired voter who required help in reading the ballot, or the African American voter who claimed she was turned away from the polls at closing time while a white man was not.

There were certainly jammed phone lines, confusion and error, but none of it added up to widespread discrimination. Many of the difficulties, like those associated with the "butterfly ballot," were the product of good intentions gone awry or the presence of many first-time voters. The most compelling testimony came from disabled voters who faced a range of problems, including insufficient parking and inadequate provision for wheelchair access. This problem, of course, had no racial dimension at all.

IV. The Majority Report�s Relies Upon a Warped Interpretation of the Voting Rights Act

The report essentially concludes that election procedures in Florida were in violation of the Voting Rights Act, but the Commission found no evidence to reach that conclusion-only a court can-and has bent the 1965 statute totally out of shape.

The question of a Section 2 violation can only be settled in a federal court. Plaintiffs who charge discrimination must prevail in a trial in which the state has a full opportunity to challenge the evidence. To prevail, plaintiffs must show that "racial politics dominate the electoral process," as the 1982 Senate Judiciary Committee Report stated in explaining the newly amended Section 2.

The majority�s report implies that Section 2 aimed to correct all possible inequalities in the electoral process. Had that been the goal, racially disparate registration and turnout rates-found nearly everywhere in the country-would constitute a Voting Rights Act violation. Less affluent, less educated citizens tend to register and vote at lower rates, and, for the same reasons, are likely to make more errors in casting ballots, especially if they are first time voters. Neither the failure to register nor the failure to cast a ballot properly-as regrettable as they are-are Section 2 violations.

Thus, despite the thousands of voting rights cases on the books, the majority report cannot cite any case law that suggests punch card ballots, for instance, are potentially discriminatory. Or that higher error rates among black voters suggest disfranchisement.

There is good reason why claims brought under Section 2 must be settled in a federal court. The provision requires the adjudication of competing claims about equal electoral opportunity-an inquiry into the complex issue of racial fairness. The Commission is not a court and cannot arrive at verdicts that belong exclusively to the judiciary. Yet, while the majority report does admit that the Commission cannot determine if violations of the Voting Rights Act have actually occurred, in fact it unequivocally claims to have found "disenfranchisement," under the terms of the statute.

V. Misplaced Responsibility for Election Procedures

The report holds Florida�s public officials, particularly the governor and secretary of state responsible for the discrimination that it alleges. "State officials failed to fulfill their duties in a manner that would prevent this disenfranchisement," it asserts. In fact, most of the authority over elections in Florida resides with officials in the state�s 67 counties, and all of those with the highest rates of voter error were under Democratic control.

The report charges that the governor, the secretary of state and other state officials should have acted differently in anticipation of the high turnout of voters. What the Commission actually heard from "key officials" and experts was that the increase in registration, on average, was no different than in previous years; that since the development of "motor voter" registration, voter registration is more of an ongoing process and does not reach the intensity it used to just prior to an election; and that, in any event, registration is not always a reliable predictor for turnout.

There was a 65 percent increase in African American voters, 40 percent of whom were coming to the polls for the first time. But this was an unanticipated event.

The majority report also faults Florida state officials with having failed to provide the 67 supervisors of elections with "adequate guidance or funding" for voter education and training of election officials. What the report pointedly ignores is that the county supervisors are independent, constitutional officers who make their budget requests to the boards of county commissioners, not to the state.

VI. The Commission Provides Only A One-Sided Examination of the Felon List

The report asserts that the use of a convicted felons list "has a disparate impact on African Americans." "African Americans in Florida were more likely to find their names on the list than persons of other races." Of course, because a higher proportion of blacks have been convicted of felonies in Florida, as elsewhere in the nation. But there is no evidence that the state targeted blacks in a discriminatory manner in constructing a purge list, or that the state made less of an effort to notify listed African Americans and to correct errors than it did with whites. The Commission did not hear from a single witness who was actually prevented from voting as a result of being erroneously identified as a felon. Furthermore, whites were twice as likely as blacks to be placed on the list erroneously not the other way around.

The compilation of the purge list was part of an anti-fraud measure enacted by the Florida legislature in the wake of a Miami mayoral election in which ineligible voters cast ballots. The list for the 2000 election was overinclusive, and some supervisors made no use of it. (The majority report did not bother to ask how many counties relied upon it.) On the other hand, according to the Palm Beach Post, more than 6,500 ineligible felons voted.

Based on extensive research, the Miami Herald concluded that the biggest problem with the felon list was not that it wrongly prevented eligible voters from casting ballots, but that it ended up allowing ineligible voters to cast a ballot. The Commission should have looked into allegations of voter fraud, not only with respect to ineligible felons, but allegations involving fraudulent absentee ballots in nursing homes, unregistered voters, and so forth. Across the country in a variety of jurisdictions, serious questions about voter fraud have been raised.

VII. Unwarranted Criticism of Florida Law Enforcement

Despite clear and direct testimony during the hearings, as well as additional information submitted by Florida officials after the hearings, the report continues to charge the Florida Highway Patrol with behavior that was "perceived" by "a number of voters" as "unusual" (and thus somehow "intimidating") on election day. In fact, only two persons are identified in the report as giving their reactions to activities of the Florida Highway Patrol on election day. One testified regarding a police checkpoint, and the other testified that he found it "unusual" to see an empty police car parked outside of a polling facility. Neither of these witnesses� testimony indicates how their or others� ability to vote was impaired by these events.

VIII. Procedural Irregularities at the U.S. Commission on Civil Rights

Procedural irregularities have seriously marred the majority report. In writing the report, the Commission ignored not only the rules of evidence, but the agency�s own procedures for gathering evidence. By arguing that "every voice must be heard," while in fact stifling the voice of the political minority on the Commission itself, it is guilty of gross hypocrisy.

Among the procedural problems in the drafting of the report: