Legal Affairs – Finding Racial Bias Where There Was None

National Journal

It started right after the election. The indispensable Jesse Jackson muttered about "a pattern of irregularities and intimidation" in Florida in which "African-American voters were substantially targeted." By December 8, he was claiming that the Bush brothers had "stolen" the election by "schemes of disenfranchisement." Other "leaders" were not far behind. "Police checkpoints were set up in and around polling places to intimidate black men," imagined NAACP Chairman Kweisi Mfume, adding, "it was all part of some grand conspiracy" to keep blacks from the polls. "There was a systematic disenfranchisement of people of color and poor people," hallucinated Donna Brazile, Al Gore’s campaign manager. Gov. Jeb Bush of Florida and others put up police roadblocks to stop blacks from voting and "tampered with the results in Florida," oozed Democratic National Committee Chairman (and Clinton moneyman) Terry McAuliffe.

These were all, at best, recklessly false exercises in racial demagoguery. There was never any credible evidence for any of them. But the charges have had a big effect. Amplified in the media, this disinformation campaign has left a great many African-Americans in Florida and elsewhere believing that they were deliberately "disenfranchised" last year. In reality, the 13 percent of Florida’s registered voters who are black succeeded in casting a disproportionately large (15 percent) share of the nearly 6 million ballots there last year, and the black vote soared to 65 percent above the 1996 total. Rarely have so many been so dishonestly inveigled into so utterly unfounded a sense of victimization.

Now comes the U.S. Commission on Civil Rights-whose Clinton-appointed chairwoman, Mary Frances Berry, runs it as a propaganda mill for the victimology wing of the Democratic Party-with a relentlessly partisan 200-page "staff report" that was leaked this week and which will be discussed at the June 8 meeting of the eight commissioners. It catalogs every complaint that could be cadged from the unhappiest Democrats who could be found as evidence of "disenfranchisement" falling "most squarely on persons of color"; implies that there were massive violations of the Voting Rights Act by Jeb Bush and others; and calls for a Justice Department investigation.

While trashing Gov. Bush and the hapless Katherine Harris (Florida’s elected Secretary of State) as disenfranchisers for failing to run a perfect election, the report glosses over the inconvenient facts that, under Florida law, Bush has virtually no authority over the voting process, and the Secretary of State’s role is mainly to provide nonbinding advice to local officials. The report also ignores the fact that the local officials who run the process and are thus directly responsible for most of the problems detailed in the report-bureaucratic errors, poorly designed ballots, jammed phone lines, and other inefficiencies that caused long delays and unfortunately prevented an unknown number of voters from casting ballots-are mostly Democrats.

There were plenty of problems in Florida. Their combined effect was to block perhaps one-tenth of 1 percent of all those who went to the polls from casting votes at all. They also contributed to the confusion of the disproportionately black 2.9 percent of voters who spoiled their presidential ballots by punching or marking them erroneously. Indeed, the somewhat confusing "butterfly ballot" in Palm Beach County (designed by a Democratic official), combined with voter error, probably cost Vice President Gore some 6,000 votes-more than enough to overcome George W. Bush’s 537-vote margin.

But all of that has been known for many months. The most important (but least emphasized) revelation in this error-littered report is that Berry’s investigators have been unable to find even a shred of evidence that anyone deliberately disenfranchised a single eligible voter.

Consider the post-election clamor about "roadblocks" and police "intimidation." All that’s left of it is a pathetic four-page passage fatuously faulting the Florida Highway Patrol for conducting a single, routine vehicle checkpoint "within a few miles of a polling place in a predominantly African-American neighborhood," and preposterously suggesting that the occasional presence of troopers "in and around polling places [was] arguably in direct violation of Florida law."

But while the report stresses the complaint of one Roberta Tucker that she felt "intimidated" and "like it was sort of discriminatory" when stopped by white officers at this checkpoint while on her way to vote, the vast majority of the drivers stopped were white. Tucker acknowledged that the troopers let her proceed after briefly inspecting her driver’s license. And according to unrebutted testimony, the only reason why any troopers visited any polling places was to vote.

The report does detail one widely reported episode of gross insensitivity to voting rights that led foreseeably to the erroneous disenfranchisement of "countless" people: State officials implemented a badly written 1998 anti-fraud law in a way that contributed to the purging from the rolls of eligible voters.

The 1998 law was designed to remove ineligible felons (and dead people) from the rolls. But in their zeal to ensure that no ineligible felon go unpurged, officials in Harris’s office, with input from the staff director of the state clemency board (which Bush heads), urged an overinclusive approach that led local officials to remove 1,104 eligible voters-108 from the rolls who were not felons at all, and 996 whose civil rights had been restored by other states after they had served their sentences for felony convictions there. (These numbers come from an analysis in The Palm Beach Post, which discredits other media reports that "thousands" of people were wrongly disenfranchised.)

Forty-four percent of these people (and 49 percent of all Florida felons) were black. This racial disparity is, as the report stresses, troubling. But the roughly 500 African-American voters wrongly disenfranchised by the felon purge come to less than one one-thousandth of the 934,000 registered black voters in Florida.

Might these 500 and the rest of the 1,104 wrongly purged voters nonetheless have swung the election to Gore had they been able to vote? Possible, but doubtful. Assuming a relatively high 68 percent turnout in this group, about 750 of the 1,104 would actually have voted. They would have given Gore a net gain of 538 votes only if they had chosen him over Bush by at least 644 to 106. The felon vote may be Democratic-but not that Democratic. And, by the way, some 5,600 ineligible felons-68 percent of them registered Democrats-voted illegally in Florida last year, according to The Palm Beach Post. If officials had succeeded in purging all ineligible felons-and only ineligible felons-Bush’s 537-vote margin would have been well over 1,000.

Florida’s law disenfranchising felons who have served their sentences is a bad law that has been badly enforced. Florida is out of step with the 40 states that restore felons’ civil rights after they have served their sentences. The law should be repealed. And the wrongful disenfranchisement of 1,104 eligible voters was a gross injustice. But Bush and Harris have plausibly denied involvement in the felon purge. And even Mary Frances Berry does not claim that it was a Republican plot to steal the election.

The draft report also makes an elaborate but self-discrediting effort to imply that some kind of illegal racial discrimination must underlie the familiar fact that a far higher percentage of black voters in Florida (and elsewhere) spoil their ballots than do white voters. Contrary to the media-fostered myth that black voters are disproportionately stuck with punch-card voting machines that have higher spoilage rates than the machines used in predominantly white areas, the report notes (in passing) that the majority of white voters in Florida used the same punch-card machines as most black voters last year. It also says that the racial disparities in spoilage rates are attributable only "in a very small part" to differences among machines.

So what does explain these racial disparities? Some cite the well-known racial disparities in education and illiteracy rates and the unusually high percentage of first-time black voters in Florida last year. But the report rejects the first possibility (unconvincingly) and ignores the second, while offering no explanation of its own. Instead, it asserts that "persons living in a county with a substantial African-American or people-of-color population are more likely to have their ballots spoiled or discounted than persons living in the rest of Florida"-an odd way of summarizing evidence that black voters are more likely to make mistakes filling out their ballots than are white voters, even when using identical ballots and voting machines.

Are we supposed to think that the machines themselves are racist, that they set traps for unwary black voters while indulgently helping whites along? Or, perhaps, that the disparities in voter-error rates involve no racial discrimination at all?