SPEAKERS CONTENTS INSERTS
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U.S. COMMISSION ON CIVIL RIGHTS
SUBCOMMITTEE ON THE CONSTITUTION
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
APRIL 11, 2002
Serial No. 73
Printed for the use of the Committee on the Judiciary
Page 2 PREV PAGE TOP OF DOCAvailable via the World Wide Web: http://www.house.gov/judiciary
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, JR., WISCONSIN, Chairman
HENRY J. HYDE, Illinois
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
LINDSEY O. GRAHAM, South Carolina
SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
DARRELL E. ISSA, California
MELISSA A. HART, Pennsylvania
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
Page 3 PREV PAGE TOP OF DOCJOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
PHILIP G. KIKO, Chief of Staff-General Counsel
PERRY H. APELBAUM, Minority Chief Counsel
Subcommittee on the Constitution
STEVE CHABOT, Ohio, Chairman
WILLIAM L. JENKINS, Tennessee
LINDSEY O. GRAHAM, South Carolina
SPENCER BACHUS, Alabama
Page 4 PREV PAGE TOP OF DOCJOHN N. HOSTETTLER, Indiana
MELISSA A. HART, Pennsylvania,
LAMAR SMITH, Texas
JERROLD NADLER, New York
BARNEY FRANK, Massachusetts
JOHN CONYERS, Jr., Michigan
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
BRADLEY S. CLANTON, Chief Counsel
PAUL B. TAYLOR, Counsel
CRYSTAL M. ROBERTS, Counsel
KRISTEN SCHULTZ, Full Committee Counsel
DAVID LACHMANN, Minority Professional Staff Member
C O N T E N T S
APRIL 11, 2002
The Honorable Steve Chabot, a Representative in Congress From the State of Ohio, and Chairman, Subcommittee on the Constitution
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The Honorable Jerrold Nadler, a Representative in Congress From the State of New York, and Ranking Member, Subcommittee on the Constitution
Ms. Abigail Thernstrom, Commissioner, U.S. Commission on Civil Rights
Mr. Les Jin, Staff Director, U.S. Commission on Civil Rights
Mr. Hilary O. Shelton, Director, NAACP Washington Bureau
Mr. Thomas Schatz, President, Citizens Against Government Waste
Statements Submitted for the Hearing Record
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The Honorable Steve Chabot, a Representative in Congress From the State of Ohio, and Chairman, Subcommittee on the Constitution
The Honorable Jennifer C. Braceras, Commissioner, U.S. Commission on Civil Rights
Material Submitted for the Hearing Record
Miscellaneous documents submitted by the Honorable Abigail Thernstrom, Commissioner, U.S. Commission on Civil Rights
Miscellaneous documents submitted by Mr. Les Jin, Staff Director, U.S. Commission on Civil Rights
U.S. COMMISSION ON CIVIL RIGHTS
THURSDAY, APRIL 11, 2002
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
The Subcommittee met, pursuant to call, at 1:15 p.m., in Room 2237, Rayburn House Office Building, Hon. Steve Chabot [Chairman of the Subcommittee] presiding.
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Mr. CHABOT. [Presiding.] The Committee will come to order.
This is the Subcommittee on the Constitution of the Judiciary Committee. I will begin with my opening statement.
The purpose of this oversight hearing is to inquire into the management practices of the United States Commission on Civil Rights.
Following its inception in 1957, the commission played an important role in investigating civil rights abuses that plagued our Nation at that time. The commission has now reached a critical stage in its history.
Over time, the commission has been criticized by individuals on both sides of the civil rights debate. However, recently, the commission has come under fire from all sides at the same time by sources that include the New Republic, Salon.com, and the Washington Post, for example.
Recent press reports have criticized the Chair for engaging in a confrontation with the White House over the appointment of a new commissioner, Peter Kirsanow. I would like to recognize Commissioner Kirsanow will be attending this afternoon, although he will not be a witness, but he will be in the audience. We understand that he is on his way. He had a flight.
I'm fully confident that the appeals court will defer to the President's interpretation of the appointment power that is entrusted to President and grant Commissioner Kirsanow his rightful seat on the commission.
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The decline in public confidence in the commission has led the Subcommittee on the Constitution, this Committee, to conduct oversight to evaluate the commission's operations.
Among other things, we are concerned about the effect of poor management practices on the quality of the commission's work product, the apparent exclusion and disparagement of minority viewpoints and participation, and, after a review of documents recently produced to the Subcommittee, the failure to implement fully management reforms recommended by the GAO 5 years ago.
The 1997 GAO report entitled ''U.S. Commission on Civil Rights: Agency Lacks Basic Management Controls'' characterized the commission as, and I quote, ''an agency in disarray'' with ''broad management problems,'' unquote.
The commission has not adequately revised administrative instructions to inform staff of management policies. Despite the purported use of project reports recommended by GAO to inform commissioners of detailed project costs, staffing needs, and deadlines, commissioners remain in the dark about these basic issues.
In April 2000, the commission hired McKinney & Associates, a Washington, D.C., public relations firm, while at the same time maintaining three employees in its own public affairs office. From the extensive criticism of the commission in the press, it appears that the commission's expenditure of $170,000 on McKinney & Associates has been a waste of money. The commission, moreover, cannot explain what exactly McKinney does for the commission.
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The commission appears to operate without consultation with commissioners. The commission frequently withholds meeting transcripts from commissioners and issues letters and press releases under commissioners' names without their approval.
The commission's recent effort to suppress a book review that favorably mentioned Commissioner Abigail Thernstrom raises questions about the basic fairness of the commission and its ability to accept differing points of view.
The staff director's confirmation that the commission engages in unregulated shredding raises concerns about whether staff have received training on how to comply with the Federal Records Act.
We are concerned that the commission fails to consider commissioners' suggestions of witnesses for upcoming hearings and frequently withholds witness lists from commissioners.
The commission also fails to clarify basic hearing procedures for commissioners such as: ''What is the topic of the next hearing?'' and ''Who has been asked to testify?''
In June 2001, the commission withheld statistical data used in formulating the conclusions of the Florida report from dissenting commissioners Thernstrom and Redenbaugh and suppressed the final version of the dissent.
Page 10 PREV PAGE TOP OF DOC A preliminary report and the final report were leaked to the press before the commission released copies to the commissioners, or to Florida Governor Jeb Bush, or to Florida Secretary of State Katherine Harris. The commission then made no formal leak inquiry.
More recently, the commission disregarded OMB budget procedures and its own budgeting process by failing to submit its budget to commissioners for approval in June of 2001. And in October of 2001, it refused to forward discrimination complaints received on the commission hotline to the Justice Department for investigation.
The continued mismanagement of the commission undermines public confidence in the commission's work. The commission is now more a public spectacle than it is a serious fact-finding agency that informs the public about the state of civil rights in America.
In view of these concerns, I look forward to hearing from our witnesses today.
At this time, I'll yield to the Ranking Member, Mr. Nadler, for his opening statement.
Mr. NADLER. Thank you, Mr. Chairman.
What is a public spectacle is not the commission but the statement of the Chairman we just heard. The Chairman referred to the loss of public confidence in the commission. I see no loss of public confidence in the commission. I see a campaign of defamation against the commission launched by the right wing people who don't approve of civil rights as part of the Republican Party.
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The Chairman referred to Commissioner Kirsanow and to the campaign against the President's appointment of Commissioner Kirsanow waged by the chairman of the commission. I know of no Commissioner Kirsanow. I know of a gentleman named Mr. Kirsanow, whom the President, disobeying the law passed by Congress and signed in 1994, I think it was, changing the tenure of members of the commission, attempted to point to a nonexistent vacancy on the commission. I know that the courts upheld the opinion of the chairperson and the majority of the commission that the vacancy didn't exist.
The Chairman is entitled to his opinion that the court decision is wrong, but he's not entitled to call Mr. Kirsanow a commissioner or to berate the chairperson of the commission for following the law and for being upheld by the court on what the law is.
With all the genuine civil rights issues facing the Nation, the Subcommittee today dedicates itself to the assume task of reviewing purchase orders, organizational charts, internal administrative manuals, and the like. While I certainly take Congress' oversight responsibilities seriously, I cannot help but wonder if the petty and punitive nature of the majority's inquiries and the disrespectful almost abusive manner in which the majority has dealt with the commission belies an agenda other than ensuring that the commission is doing its job correctly.
In fact, I believe it represents an agenda prefer ensuring that the commission cannot do its job correctly.
I have often fought fraud, waste, and abuse in Government. As the majority's witness, Mr. Schatz, will recall, we worked together a few years ago to do what almost no Member of Congress would ever think of doing: We managed to kill a costly, unnecessary, and wasteful highway project in my own district. It did not make me particularly popular at home, but this was a pork-barrel project that simply, in my opinion, was not needed and would have wasted about $300 million of the taxpayers' money. And I was happy at Mr. Schatz' assistance in being able to kill the project, although people are trying to revive it and we will have to continue to oppose it if they make more attempts.
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I have no regrets. That was then.
Thousands of pages have been produced on everything from the purchase of office equipment to harassment over the very serious matter of Commissioner Wilson's tenure, a matter decided in the commission's favor by the U.S. District Court for the District of Columbia.
Mr. Chairman, back in 1995, when as part of the Republican revolution the name of the Subcommittee was changed from the Subcommittee on Civil and Constitutional Rights to the Subcommittee on the Constitution, I had hoped that the name change would not signal a change in emphasis and was only symbolic of the majority's, apparently, disregard for civil and constitutional rights. In my service on the Subcommittee in the ensuing years, I have found that this change was really truth in labeling. The work of the Subcommittee has had as much to do with its historical record as a vigorous guardian of civil and constitutional rights as it does with the future of Amtrak.
If anything, the Subcommittee has become a focal point for assaults on the constitutional rights of the American people. Whether considering constitutional amendments that would promote the suppression of free speech or the Subcommittee's tireless and often creative efforts to undermine a woman's constitutional right to choose, this Subcommittee has been anything but the proud guardian of individual liberty it was for so many years.
Mr. Chairman, somewhere on the road to Damascus the party of Lincoln has become the party of Jefferson Davis. Whatever our differences on policy, I find this transition a heartbreaking loss to the Nation.
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I will leave it to my colleagues on the other side of the aisle to count paperclips and engage in other theatrics. We are fortunate today to have Mr. Hilary Shelton, director of the Washington bureau of the NAACP, and Mr. Les Jin, the commission staff director, with us. With the indulgence of the Chair, I hope to discuss the topic of civil and constitutional rights. According to clause 1(k)(5) of House rule X, civil liberties is still within our jurisdiction, and it would be nice if we got a chance to exercise that jurisdiction one of these days.
The commission has issued a number of reports and recommendations, not all of which have been controversial, and many of which have resulted in real changes that have benefited the civil liberties of the people we represent. It might be nice if the Subcommittee could actually hold a hearing or consider legislation based on that work, based on those reports, even some of the noncontroversial reports. I would be happy to work with the Chair on such a project.
I can vouch for the fact that in my own city of New York, as a result of commission report, police Commissioner Ray Kelly recently issued a tough new order against racial profiling and ordered that it be read and posted in every precinct in the city.
Mr. Chairman, I hope the current fascination with the commission, rather than with the civil rights issues it reports on, is not a form of partisan retribution for its incisive and clarifying report on the illegal disenfranchisement of Florida voters in the 2000 election.
Page 14 PREV PAGE TOP OF DOC Using the power of Congress to harass or kill the messenger should be beneath us.
I would urge my colleagues to remember why we are here and the fundamental rights with whose guardianship we are entrusted, so that we may rise above some of these administrative issues and get on with the work of safeguarding civil liberties.
Thank you, Mr. Chairman.
Mr. CHABOT. Thank you.
At this time I would like to welcome and introduce our panel. And our first witness this afternoon will be Commissioner Abigail Thernstrom, appointed to the commission by House Speaker Dennis Hastert in January of 2001.
Commissioner Thernstrom is a senior fellow at the Manhattan Institute in New York, where she has researched and published extensively on civil rights issues. She is the author of the 1997 award-winning work ''Whose Votes Count? Affirmative Action and Minority Voting Rights.'' Thernstrom and her husband, Harvard historian Stephan Thernstrom, are co-authors of the New York Times-acclaimed book ''America in Black and White: One Nation Indivisible.''
Commissioner Thernstrom serves on the boards of the Center for Equal Opportunity and the Institute for Justice. She has appeared on ''Fox News Sunday,'' ''Good Morning America,'' and the ''Jim Lehrer Newshour.'' She has published articles in the Wall Street Journal, New York Times and Washington Post.
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She holds a Ph.D. from the Harvard University Department of Government.
Our second witness this afternoon will be Les Jin, appointed staff director for the commission by President Clinton in October 2000. Mr. Jin is responsible for the day-to-day operations of the commission. He is a former general counsel with the U.S. Information Agency and more recently with the U.S. Broadcasting Board of Governors. He served as a trial attorney with the U.S. Equal Employment Opportunity Commission in Chicago and as a hearings officer with the Chicago Commission on Human Relations. He has also worked for the Legal Assistance Foundation of Chicago.
He has served on the board of the National Asian-Pacific American Bar Association and was general counsel for the Organization of Chinese-Americans.
Mr. Jin received his law degree from the University of Oregon and earned a master's in public administration from the John F. Kennedy School of Government at Harvard University.
Our third witness will be Hilary O. Shelton, director of the NAACP Washington Bureau. Prior to working for the NAACP, Mr. Shelton served as the Federal liaison assistant director of the government affairs department of the United Negro College Fund.
Prior to serving the college fund, Mr. Shelton served as program director for the United Methodist Church's Social Justice Advocacy Agency and the General Board of Church and Society.
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Mr. Shelton serves on the boards of the National Center for Democratic Renewal, the Leadership Conference on Civil Rights, and the National Violence Against Women Task Force.
Mr. Shelton holds a B.A. in communication and political science from the University of Missouri and an A.A. in legal sciences from Northeastern University.
Our fourth and final witness will be Thomas A. Schatz, the president of Citizens Against Government Waste, the CAGW. Mr. Schatz is a nationally recognized spokesperson on Government waste.
During his 15 years with CAGW, Mr. Schatz has testified numerous times on Government waste issues before the Committees of the United States Senate and the House of Representatives. He has appeared as an expert on ABC News with Peter Jennings, CBS News with Dan Rather, NBC News with Tom Brokaw, ''Larry King Live,'' and the ''McNeil-Lehrer Newshour.''
Prior to joining Citizens Against Government Waste in 1986, he spent 6 years as the legislative director for Congressman Hamilton Fish and 2 years practicing law and lobbying. Mr. Schatz holds a law degree from George Washington University.
We'd like to welcome all four of the witnesses here this afternoon. We would ask the witnesses, if possible, to confine their testimony to within 5 minutes. We have a lighting system before you there. When the yellow light comes on, that means you've used up 4 minutes and try to wrap up in the final minute and we'll give a little leeway here and there, but we'd appreciate it if you'd try to keep it within 5 minutes. When the red light comes on, that means the 5 minutes has been used up.
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And we'll begin with Commissioner Thernstrom.
STATEMENT OF ABIGAIL THERNSTROM, COMMISSIONER, U.S. COMMISSION ON CIVIL RIGHTS
Ms. THERNSTROM. Mr. Chairman, Members of the Subcommittee, I thank you for holding this hearing and for inviting me to testify.
My name is Abigail Thernstrom, as you know. And as the Chairman mentioned, I am a political scientist by training, a senior fellow at the Manhattan Institute in New York, a member of the State Board of Education in Massachusetts, where I live, and a commissioner on the U.S. Commission for Civil Rights since January 2001.
I'm also the author of numerous books and articles on race and ethnicity.
I'm going to speak briefly, and I ask that a more detailed testimony be entered into the record.
Mr. CHABOT. Without objection.
And all the statements of all four witnesses will be entered into the record.
Ms. THERNSTROM. Thank you.
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In the decades since 1957 when the commission was first formed, a revolution in the status of blacks and the state of race relations has occurred in this country. But on the road to racial equality, there's obviously still much to do. And the commission can play an important part, in theory.
In practice, however, the commission hurts more than it helps. It sullies the drive for civil rights, and it taints a cause to which every American should be committed.
This is the picture that I've seen in the 15 months that I've served, and a review of the historical record shows that this has been the case for years.
Here are some of the reasons. The commission's hearings and briefings make a mockery of intellectual inquiry. Its reports are never circulated in draft form to distinguished scholars with a variety of perspectives. And as a consequence, the work is shoddy and ideologically driven.
The conclusions drawn by the commission in its reports are so crude and so predictable that I could write them myself before any hearing or briefing took place.
Press releases are issued in the name of all commissioners, although I have not seen them beforehand and I often find them objectionable. Moreover, they can be woefully inaccurate. They state facts that are not facts about actions taken by the commission and about the American racial and ethnic landscape.
Page 19 PREV PAGE TOP OF DOC The chairman, Mary Frances Berry, has a public relations agency funded with taxpayer money that works only for her. I believe I have fiduciary responsibility for such decisions, although I am never consulted.
Commission meetings are marked by procedural chaos. Rules are changed arbitrarily. I'm never sure what will be on the agenda until I get there, and topics and speakers are switched without warning with the result that I cannot adequately prepare for meetings and I waste time on issues that will not be addressed.
I lack basic access to the staff and its work. Direct conversations with anybody outside the staff director, Les Jin, office are explicitly prohibited. Moreover, memos to Mr. Jin containing vital questions are regularly unanswered or only very partially answered.
Communications from Mr. Jin can be, well, let's say just totally bewildering. For instance, July 20th, 2001, I received a memo stating I did not participate in a meeting between Commissioner Redenbaugh and the general counsel, and that the deadline to discuss the issues at hand had passed. In fact, there was no meeting and no deadline, as I made clear in an uncontested memo of July 23.
Alas, this incident did not surprise me. A contempt for facts runs through much of the commission's work.
Grandstanding substitutes for effective work. The hotline established to record instances of discrimination against Arab-Americans and Muslims was a disaster as Time magazine accurately reported. It was basically useless.
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That did not bother Chairman Berry, who on October 12 said, quote, ''People around the country have expressed their gratitude, so I think we ought to be proud that we're doing this rather than worrying about whether it's helping anybody,'' end quote.
Reports take years to complete, as shown on the chart on the easel. And often the information that has been gathered is obsolete. For instance, the racial and ethnic tension report was supposed to take 3 to 5 years; it took 11 years to complete.
Most important, secrecy and a fear of dissenting voices pervades all of the commission's work. That was evident in the recent cancellation of important hearings on education. Instead, the staff is writing a report behind closed doors, although three commissioners have considerable expertise on the subject.
This fear of dissenting voices was most obvious in connection with the commission's Florida report, a report the Washington Post editorial described as, quote, ''highly politicized, contributing little beyond noise to the national discussion of the problems in the 2000 election.''
The extraordinary secrecy extended to the witness list at one of the Florida hearings, although, in fact, that list, I subsequently learned, had been released to the press by the public relations agency that works solely for the chairman. I hadn't seen the list, however.
Fear of input from affected parties in Florida, from scholars outside the commission, from commissioners themselves, drove a process that lacked even bare-bones integrity. Process and substance cannot be separated. A corrupt process ensures a worthless result.
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In the minutes I have left, I will confine myself to just a few words about the suppression of the Thernstrom-Redenbaugh dissent on totally specious legal grounds. That the U.S. Commission on Civil Rights should even think about suppressing a dissent is of course jaw-dropping. This commission thought and it acted. Indeed, the commission contemplated a speech code for dissents, which would have restricted them to two or three pages and prohibited independent research.
Chairman Berry often claims the dissent has not in factthat the dissent has in fact been published by the commission. Not so. It has never been published by the commission.
A crude first draft of the dissent has been included in a pile of material taken from Senate hearings on election reform. I was not permitted to submit the polished and quite amended version. I was given no opportunity to submit my rejoinder to the work of the commission's statistical expert, although I had been promised a chance to do so. And the dissent does not appear labeled as such in the proper place for dissents.
Mr. CHABOT. Commissioner, could you wrap up?
Ms. THERNSTROM. Yes.
Mr. CHABOT. Thank you.
Ms. THERNSTROM. I have offered the briefest outline of the extraordinary number of problems that plague the commission. I will provide many others, supported by documents, in my written testimony.
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Final word: It has been a long time, in my view, since the commission did any meaningful work to advance the cause of civil rights. The commission should be a source of hard facts on current civil rights issues and a place of robust debate. It is neither. It is a national embarrassment.
Thank you very much.
[The prepared statement of Ms. Thernstrom follows:]
PREPARED STATEMENT OF ABIGAIL THERNSTROM
Mr. Chairman and members of the Subcommittee, thank you for holding this hearing and for inviting me to testify.
My name is Abigail Thernstrom. I am a political scientist by training, a senior fellow at the Manhattan Institute in New York, a member of the state board of education in Massachusetts where I live, and a commissioner on the U.S. Commission on Civil Rights, appointed in January 2001.
I am the author of a multiple-award winning book, Whose Votes Count? Affirmative Action and Minority Voting Rights, and the co-author of America in Black and White: One Nation, Indivisible, a history of race relations and racial change in the decades since World War II. I am presently working on a book entitled Getting the Answers Right: Race, Class and Academic Achievement, which will be published by Simon and Schuster in 2003.
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I will speak briefly and ask that a more detailed testimony be entered into the record.
A revolution in the status of blacks and the state of race relations has occurred in the decades since the Commission was formed in 1957. But on the road to racial equality, there is still much to do, and the Commission can play an important partin theory.
In practice, however, it hurts more than it helps. It sullies the drive for civil rightstaints a cause to which every American should be committed. Or at least that is the picture I have seen in the fifteen months I have served.
Here are some of the reasons:
Its hearings and briefings make a mockery of intellectual inquiry. Its reports are never circulated in draft form to distinguished scholars with a variety of perspectives and, as a consequence, the work is shoddy and ideologically-driven. Preliminary findings are issued without following basic scholarly or collegial process. Reports are leaked to the press before being given to Commissioners.
During the two Florida Hearings (January 1112 and February 16, 2001), the most basic processes that would have guaranteed a fair and balanced hearing were not followed.
Chairman Berry and the staff director, Les Jin, refused to disclose the list of witnesses before the hearings on February 16.(see footnote 1) The rationale given: the witnesses were afraid, and had requested that their names be kept under wraps. However, McKinney and McDowell, a public relations firm retained by the Commission, has acknowledged in print that it had prior access to the witness list, which it distributed to the press before the hearings.(see footnote 2)
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Commissioner THERNSTROM: It is correct that I had an agenda, but all the witnessI have no idea who any of the witnesses are before the lunch break
Chairperson BERRY: None of us do. Do you want to know why? I'll tell you.
You know as many witnesses as the rest of us. Some of the witnesses for their own protection did not want to be identified in any documents before they appeared today. They feared for reasons of their own that their names not be disclosed. So in order to protect them their names haven't been written down anywhere. The Commission has done that in the past to protect people and so it was thought necessary, as I am told, to do that.
Further, it is absurd to say that these witnesses feared for their well-being. They had been interviewed by the staff attorneys and told that their testimony would be public; hearings were open to the press and filmed by C-Span. Had the procedure been proper, all commissioners would have been given an opportunity to suggest witnesses and would have known precisely who was appearing in order to adequately prepare for questioning.
Before the Commission had closed the record for the Florida hearings, the chairman issued preliminary findings and leaked her personal statement to the New York Times. Although it was described as an official Commission statement, in fact commissioners had not seen it. I attach the New York Times article of March 8, 2001, and the statement subsequently released to the Commission itself on March 9, 2001.(see footnote 3)
Page 25 PREV PAGE TOP OF DOC On March 9, the Commission also issued a press release, attached, that obfuscates the distinction between a personal statement issued by the chairman and one voted on by the Commission, prior to publication.
Before the chairman released her preliminary statement, I had asked to see the documents that staff attorneys had received in response to questions raised by the Florida election. They were attorney-work products and not available for review, I was informed. Basic documents were for staff-eyes only. I attach the memoranda recording my requests and responses from the staff director.
During the drafting process, only the office of the general counsel had access to the Florida report. On several occasions, to no avail, Commissioner Redenbaugh and I requested the timeline for the release of the report.(see footnote 4) Ultimately, stories on the report were published in the Washington Post, New York Times and the Los Angeles Times before I had even received a copy of the draft. In other words, the media were privy to the report's conclusions before I was. On June 9, 2001, the Washington Post called this leak ''stupid and destructive.''(see footnote 5)
On May 22, Commissioners Thernstrom and Redenbaugh sent a memo to the Chair and asked two questions: when exactly Commissioners could expect to receive the report, and what was the status (begin and end dates) of the affected agency review?
On May 23, Les Jin's special assistant, Kim Alton left a voice mail in Redenbaugh's assistant voice mail saying that the staff director said that Commissioners should refer to the April transcript.
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On May 24, Commissioner Redenbaugh sent another memo to the chairman protesting this lack of response, and reiterating the two questions. That memo was acknowledged (on or about May 31) by Dr. Berry's assistant, Krishna Toolsie, who again referred Commissioner Redenbaugh's assistant to the April transcript in which Dr. Berry informed the Commissioners that they would have the report in early June.
On June 1, Les Jin sent Commissioners a brief memo stating only that the report ''was not quite ready for distribution to the Commissioners''; it would be sent out ''in accordance with the timeline discussed during the April Commission meeting''; and the Commission was ''proceeding with the requirements for legal sufficiency and affected agency review . . .''
On Monday June 4, at approximately 9:30 a.m., Commissioner Redenbaugh's assistant, Charlie Ponticelli, met with staff director Jin's special assistant, Kim Alton, in the anteroom of the staff director's office. Ponticelli stressed the Commissioners' concern that all Commissioners be given adequate time to review the draft report, and she again asked when exactly they would receive the report. Kim Alton said the report was downstairs with the General Counsel and that she did not know when Commissioners would receive the report but that she would check with the staff director for further details. At approximately 5:00 p.m.Kim Alton left a voice mail message indicating that the report would be available ''at 6:30 today.'' At 6:00 p.m., Ponticelli received a call from New York Times' reporter Katharine Seelye asking for Commissioner Redenbaugh's number so that she could get his reaction to the report. Seelye was told that neither had yet received the report. At 11:00 p.m. that evening, a messenger sent by the Commission arrived at Ponticelli's house with a copy of the report. Commissioner Thernstrom's assistant received her copy of the report about the same time. Commissioner Thernstrom received her copy of the report, the next day, Tuesday, June 5 after noon. That morning the New York Times, the Washington Post and the Los Angeles Times ran stories about the report which had been leaked to those papers by the Commission.
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Press releases are issued including my name, although I have not seen them beforehand and in fact often disagree with their substance. Moreover, they can be woefully inaccurate. For instance, following its meeting this past September, a press release stated that commissioners had voted for a hotline to solicit and catalogue complaints of discrimination involving Arabs and Muslims. In fact, this vote never took place.(see footnote 6) Moreover, there had been no discussion of the matter at any Commission meeting. I include the text of the transcript and the discussion of this issue.
Chairperson BERRY: Well, I think that the first thing is that the staff should find out what the Community Relation Service is doing. Because they're small too, and they don't have much money, but their mandate as I understand it, unless it's changed in the last couple of years, is to be conciliators. And they used to do reports all the time, because I used to use them on incidents that were happening in various places and their efforts to try to go out and conciliate. So we need to find out what they're doing.
And usually RDs in the past have operated in tandem with them. I don't know whether they're doing that now anymore, but they should be in consultation with them.
I hear Ivy saying in the background that they are, so that's good. And they should be, and they should report to us on what's going on. Because my gut reaction is that CRS is the place that ought to be doing this job of actually out on the ground conciliating and collecting information and data and passing it along. And RD's ought to be working with them, and our SACs and coordinating that. And until we get some other advice to do something else, why don't we simply say to our staff that that ought to be happening and they ought to make sure that it is. Unless somebody has an objection.
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Vice Chairperson REYNOSO: Vice Chair.
Chairperson BERRY: Yes, Vice Chair?
Vice Chairperson REYNOSO: I think that the gathering of data is very important because there's such a tendency of denial in terms of anything negative that's happening in our country.
Commissioner EDLEY: Exactly.
Vice Chairperson REYNOSO: That's probably very important.
Secondly, I just want to point out that somehow the description of the Near East of part of this world has been expanded. Because I heard concerns by Indians
Chairperson BERRY: Yes.
Vice Chairperson REYNOSO:and people of Indian ancestry. I never knew that India was in the Near East, but somehow that they too apparently have come under harassment. So it's a large body of Americans that are potentially coming under this type of fellow citizen or police type of heightened scrutiny and harassment. So I think it's very important.
Chairperson BERRY: Well, the history of all this is that that's what usually happens. People who look like or people think are, and they have no idea anyway because we have such a faulty knowledge as Americans of geography anyway, so we hardly know where anyplace is and where anybody came from.
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One of my students yesterday who is Hispanic, Mexican he calls himself, was saying he needs to get a big sign to put in front of him to carry around saying ''I'm Mexican,'' because people are harassing him because they thought he was an Arab. He was Arab-looking they said. They didn't know what that was, but that's what he was doing.
So, in any case, I think the statement nowso what we'll do is tell the staff, CRS, work with them, find out what they're doing, the data collection and all the rest of it, and the RDs out there with the SACs to the extent we can do it, is being another place where people can complain and getting the message out.
The statement, we will rewrite the statement and it will have several elements. It will commend those who have made statements and who have encouraged people. It will commend the President for his statement about the need to not harass people and discriminate against them.
It will say something about the law enforcement and their efforts, and the need to take care as we go forward on this.
And we will try to get this into all the right hands today.
And then the staff will consider Christopher's suggestion about getting someone to write a paper about this and what suggestions we might make.
Now, today if we want to or we can wait until the next time, make the suggestion to EEOC that they start thinking about guidelines. I don't know, is that something you wanted to do now or you wanted the staff to look into, or to what, Christopher? The one about trying to give guidance to
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Commissioner EDLEY: I think we ought to do it. In other words, I would like us to instruct the staff to formulate such a memo for you to send over
Chairperson BERRY: Okay.
Commissioner EDLEY:calling onmaybe to send it to the AG and the Chair of the EEOC asking them to put something together.
You know, I'm sitting here just thinking again about that example in Florida, and I don'tyou know, I'm a Harvard law professor and I don't know what the legal answer. I don't know as a matter of current doctrine. That bothers me.
Chairperson BERRY: You mean that the flying school would
Commissioner EDLEY: Would automatically send somebody's information over to the FBI just because they look likejust because they're fromso I think there's a lot of murkiness here, and I think it'll take a couple of months to, obviously, produce any kind of a document of guidance. But I think that sending them something now saying we think you need to get on this would show that at least we're being forward thinking.
Chairperson BERRY: Well, coming from the presence of Philadelphia and Penn as opposed to Cambridge, I am also puzzled about it. But in terms of what I know legally, if there is a declaration of war, of course, all bets are off.
Page 31 PREV PAGE TOP OF DOC Commissioner EDLEY: Right.
Chairperson BERRY: Because then people can do anything they want to almostalmost to anyone including the bar is somewhat lowered as for what you can do in time of war. But, of course, we don't have a declaration of war, so that's a different situation.
And even in time of war, one wonders whether just because someone looks a certain way, they should somehow be harassed or have law enforcement officials sicked on them as a person.
So let's have the staff look into all these questions and try to come up with something for us.
Is the staff clear on what we're asking the staff to do?
Staff Director JIN: I think we are.
Records show that other commissioners in past years (before my time) have protested the practice of the chairman to release statements without consultation. I attach a memo dated August 10, 1995 written by Commissioner Robert George addressing the use of the press office in releasing statements made by Chairman Berry.
The chairman, Mary Frances Berry, has a public relations agency, funded with taxpayer money, that only works for her.(see footnote 7)
Page 32 PREV PAGE TOP OF DOC On August 15, 2001, Scripps Howard published an article stating that the Commission had paid $135,000 to a private public relations firm, McKinney & McDowell. A survey conducted by Scripps Howard of twelve other government commissions of similar size found that only one agency had hired a public relations consultant and that was five years ago for one specific project.(see footnote 8)
I am not an expert in government contracting, but I do suspect that, as a commissioner, I am responsible when taxpayer money is being used to pay an outside public relations firm. Furthermore, the contract had no obvious justification; the Commission has a Public Affairs Unit whose job McKinney & McDowell assumed.
Until a month ago, the Commission had a Public Affairs Unit staffed by three career employees. Les Jin, however, has slowly stripped this unit of all authority, removing (in November 2001) its ability even to answer its own phones. Media cannot reach the PAU directly. They work through Jin's office, which screens calls. The unit has become a very expensive clipping servicenothing more. Two of its employees have quit recently.
According to a cumulative cost analysis issued by McKinney & McDowell, senior staff at the public relations agency charge the Commission $200 an hour. However, I have never seen an accounting, although I suspect I have fiduciary responsibility as a Commissioner.
I have asked, at a minimum, to receive copies of the press releases issued at taxpayer expense and including my name. McKinney & McDowell told my assistant, Kristina Arriaga, that they worked only for the chairman. Often, I have had to request copies of press releases after I see them posted on the internet or quoted in news articles.
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Commission meetings are marked by procedural chaos. Rules are changed arbitrarily. I can't be sure of what will be on the agenda until I arrive at a monthly meeting, and topics and speakers are switched without warning. As a result I cannot adequately prepare for meetings, and I waste time on issues that will not be addressed. Thus, a hearing on welfare was scheduled for the meeting in March; at the very last moment, the chairman substituted a speaker on bioterrorism.
This problem has risen several times in years prior to my service on the Commission. I include sections of the transcripts of two meetingsone in 1996 and another in 1999at which commissioners protested this practice on the record.(see footnote 9) In spite of assurances by the chairman and memoranda requesting an explanation, this practice continues.
Chairperson Berry stated: ''Well, you will know at least at the meeting before the meeting, if there's some emergency thing added.'' Commissioner George asked: ''So nothing will be added unless it's added at a meeting before that meeting at which the briefing will be held.'' And the Chairperson replied: ''Yes, Yes. And if it's an emergency and we have to for some other way do it that way, somebody will call you and tell you. Okay? The staff director. How's that?''
USCCR transcript, June 18, 1999.
Chairperson Berry stated: ''There may be emergencies from time to time, or items that happened and that Commissioners would be notified when they occurred . . . we will try to make sure that in the future . . . the staff director will be instructed to make sure that people know a month in advance if there is a briefing scheduled for already for something.'' She reiterated: ''So the general rule then, as I understand it, will be that Commissioners will be notified a month in advance.''
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On March 8, the chairman justified the last minute change by stating that the briefing was being conducted by a ''speaker''(see footnote 10) even though the agenda and the Federal Register indicated there would be a ''briefing.'' At the meeting, I asked for a clarification of the distinction between speakers and briefings. That question was subsequently posed as well in a memo to the staff director. I have yet to receive an answer.
Chairperson BERRY:whatever else you guys want to do, you can do it, but we want to do this. Maybe that would have been okay.
Commissioner BRACERAS: I actually have a question about the briefing for today, and actually how it came about. Because
Chairperson BERRY: I'd be happy to tell you.
Commissioner BRACERAS: Okay. Well, great. Because I had spent some time, actuallyand my special assistant had spent some timepreparing for a briefing on welfare reform and educating ourselves on that. And I think that this topic that we have for today is interesting, and I'm pleased to welcome the witness here today to talk about it. But in terms of process, I have to say I was a little concerned about how this came about and the timing of it, because we did not have time to educate ourselves about this issue the way we had started to do on welfare.
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So from the memorandum that came over my fax, it indicated that somebody on the staff had, I guess, fallen ill, and that was the reason for the change on the welfare briefing. And I was just wondering if you could tell me who it waswho on the staff was responsible for welfare that fell ill that made it impossible to have that briefing.
Chairperson BERRY: Do you want to name the person that's
Staff Director JIN: I don't think I wouldunless my counsel tells me, I don't think I would be appropriate in this kind of forum.
Commissioner BRACERAS: Okay. You don't have to tell me who's ill, but can you tell me who was responsible for welfare?
Staff Director JIN: Well, the way you phrased the question, I mean, once I say that
Commissioner BRACERAS: Well, there's only one person who was responsible for the briefing?
Staff Director JIN: Well, there's a person who was responsible for taking the initiative to do the early work to get it to a second point, and others would have jumped in and helped.
Commissioner BRACERAS: And there was no one else who could take over when that person fell ill?
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Staff Director JIN: And the situation was that a number of things happened sequentially so thatwhen we were going through it, we thought that the person wouldwe knew there were some major things, but we didn't think that they would last this long. And it just kept on piling up.
Commissioner BRACERAS: Okay. Well, that's fine. And I obviously wish the person well. But my question is more of an institutional one as to why there wasn't somebody who could have taken over and shepherded the project to completion, since we had allor at least some of us had spent time preparing for that project?
Chairperson BERRY: Commissioner Braceras, the staff director, I think he's responded. But let me respond to how this came about. And I had planned to do it when we introduced our guest.
Commissioner BRACERAS: Well, I'd actually like the staff director to answer that question.
Chairperson BERRY: He doesn't know; I do. He knows why it came about, but I had a role to play in it. So I would like to express what that role is.
Commissioner BRACERAS: Great.
Chairperson BERRY: And I had planned to do it when I introduced our guest, who I'm pleased to have here. And it's not time to do that yet. But in any case, we had a discussion in November about bioterrorism and healthcare issues and underserved populations and the Office of Homeland Security, which was just being established.
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The staff after thatthere were a lot of questions in our discussion that were unanswered. And the staff, as they continued to monitor this, I was speaking with the staff director about the possibility that OCRE might write a memo for us to read at some point about these issues.
And they did that. And then when we came to set the agenda for this meeting, having time available, I said, well, you could send a memo out, and we could just discuss the memo and see where we are on it. Then I said, well, maybe rather than doing that, we shouldn't have a briefing. Because the way we do briefings is we get names, and we do panels, and we do all of that, and there wasn't time for that. But that we should just ask someone who is an expert on public health delivery systems to come in and briefly talk with us about it. And then if the commissioners wanted to have a formal briefing after that in which they invited witnesses or did whatever they could, and that this was a wise and best use of our time.
So I took it as my responsibility in setting the agenda, which is one of the two responsibilities I have to do that. So I'm the one who
Commissioner BRACERAS: Well, that's all great. My only question was, why was that now instead of welfare. And my other question goes to not only the timing but how we were informed of it. Because in looking over some transcripts from this commission in the past, I noticed that you had in 1996 promised Commissioner George that commissioners would always be given a month's notice before they were going to have a speaker or a briefing, and that nobody would come and give testimony to this commission without us having a chance to prepare. And that commissioners would know at the meeting before who was coming to speak at the following meeting. And you reiterated that in 1999. And that's readily available in the transcript.
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So I'm curious to know why that didn't happen this time. Because like you said, this is an issue that the Commission has been discussing since November. It's clearly not an emergency. It could have been put on the calendar for April, and that would have given us some time to brief ourselves and familiarize ourselves with the issues, which I would like to do before the gentleman speaks so that I can better understand what he has to say and formulate some more intelligent questions.
So given your previous statements and assurances that business would not be conducted that way, I'm wondering why it was.
Chairperson BERRY: The first answer is, I did not state that no speaker would come before the Commission without this happening. I said there would not be a briefing without people being given notice.
Commissioner BRACERAS: So change the title of what's been proposed instead of what are the rules?
Chairperson BERRY: Commissioner Braceras, you spoke; I'm speaking.
May I speak?
Commissioner BRACERAS: Feel free.
Chairperson BERRY: Are you in charge?
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Now, I did not state that no speaker would ever come to the Commission. I know I didn't say that, and you know I didn't say it. And I have just told you
Commissioner BRACERAS: I'm happy to pull up the transcript.
Chairperson BERRY: The transcriptread the transcript. Read where I said no speakers will come.
Commissioner BRACERAS: I don't have it in front of me, but when I
Chairperson BERRY: Well, you throw out these things that are not true.
Commissioner BRACERAS: Well, when I go back to my office, I'll fax it to you.
Chairperson BERRY: Okay. Do that. Do that. Because I know I didn't say that.
Now, the second thing is, I have just told you this is not a briefing; that we could have just discussed the memo, since we have time available when we were going to have welfare reform. This is not an issue where we're making a decision; we're just having a discussion. And it seemed entirely reasonable to have someone who was an expert on short notice come in and just discuss it with us.
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Now, if you object
Commissioner BRACERAS: Oh, I don't object at all. I don't know whyI actually
Chairperson BERRY: If commissioners object, you may move that you object. And the
Commissioner BRACERAS: I don't object at all.
Chairperson BERRY:Commissioners can vote on it. And we will ask the speaker to leave.
Commissioner BRACERAS: And actuallyno, I'm very interested in hearing this speaker. But I'm actually baffled as to why you're so angry about this. Because all I'm asking for as going forward, a little more notice so that I can have time and other commissioners can have time to educate themselves
Chairperson BERRY: Do you
Commissioner BRACERAS: Excuse me.
Chairperson BERRY:have a motion, Commissioner Braceras?
Page 41 PREV PAGE TOP OF DOC Commissioner BRACERAS: No. I'd like to finish speaking.
Chairperson BERRY: Do you have a motion?
Commissioner BRACERAS: I'd like to finish speaking.
Chairperson BERRY: Do you have a motion?
Commissioner BRACERAS: I have a point of order, which has to do with the way this commission conducts business. And I would like to request that in the future commissioners are given better notice than we've received in this case. And by that, I mean a month's notice of what is going to happen at the next meeting so that we can inform ourselves appropriately.
It baffles me that that request angers you so.
Chairperson BERRY: Do you have a motion on that? Because our procedure now is not to notify commissioners a month ahead of what the agenda is for the meeting. I don't even know what it is a month ahead. But if you'd like to change the procedure, you may move to do so.
Commissioner BRACERAS: I'm not asking for a complete agenda. I'm asking, if there's going to be a speaker or a substantive discussion of a civil rights issue, to have notice of that so that we may prepare. The fact that this has angered you so is really, I think, quite revealing to anybody who's watched this commission. Because I don't understand why you would be against commissioners
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Chairperson BERRY: Do you have a motion?
Commissioner BRACERAS:preparing and having information.
Chairperson BERRY: Do you have a motion?
Commissioner BRACERAS: No. I think I've said what I need to say.
Chairperson BERRY: Okay.
Are we going to proceed or not? Or are we
Commissioner THERNSTROM: Well, I just have a question.
Chairperson BERRY:simply going to keep discussing all these procedural questions for the rest of the day.
Commissioner BRACERAS: I'm not.
Commissioner THERNSTROM: I just have a question.
I don't reallythere seems to beI don't understand the categories of people coming before this commission, the categories of events. That is, there seems to be hearings. Commissioner Edley referred this morning to a forum, but by that I think he means the hearings. Then there are briefings. Then there is another category in which there are speakers, but I don't know what that category is; I don't know what the context is.
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And I justI don't understand the structure of how this commission operates. And I think we do need to have some understandable rules so that there isn'tand some regular structure. I don't understand what a speaker is. Is a speaker just somebody who appears? Can they appear at the last moment, invited at the last moment, and we don't prepare for it?
Chairperson BERRY: Do the commissioners wish to hear from Dr. Akhter or not?
I lack basic access to the staff and its work. Direct conversations with anyone outside of the Les Jin's office are prohibited.
I was told by the former general counsel that this prohibition was detailed in the Administrative Instructions, but I find no language in the AIs that creates a fire wall between commissioners and staff other than Les Jin.(see footnote 11) Moreover, memos to Jin containing vital questions are regularly unanswered or only very partially answered. Communications from him can be . . . well, let's say, just totally bewildering. For instance, on July 20, 2001 I received a memo stating that I did not participate in a meeting between Commissioner Redenbaugh and the general counsel, and that the deadline to discuss the issues at hand had passed. In fact, there was never a meeting, and never a deadline, as I made clear in an uncontested memo of July 23. He has yet to respond to that memorandum.
Grandstanding substitutes for effective work. The hotline to record instances of discrimination experienced by Muslims and Arab-Americans was a disaster, as Time magazine accurately reported on February 9, 2002. It was basically useless. That did not bother Chairman Berry who, on October 12, said: ''People around the country have expressed their gratitude, so I think we ought to be proud that we're doing this rather than worrying about whether it's helping anybody.''(see footnote 12)
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Most important, an apparent fear of dissenting voices pervades all of the Commission's work. That was evident in the recent cancellation of important hearings on education; the staff is writing an education report behind closed doors.
This fear of dissenting voices was most obvious in connection with the Commission's Florida report, of coursea report that an unsigned Washington Post editorial described as ''highly politicized,'' contributing little ''beyond noise, to the national discussion of the problems in the 2000 election.''(see footnote 13)
Fear of input from affected parties in Florida, from scholars outside the Commission, and from Commissioners themselves drove a process that lacked even bare-bones integrity. And a corrupt process insured a worthless result.
I would like to speak briefly about the suppression of the Thernstrom-Redenbaugh dissenton totally specious legal grounds. That the U.S. Commission on Civil Rights should even think about suppressing a dissent is of course jaw-dropping. This Commission not only thought about silencing a dissenter; it acted.
Chairman Berry often claims the dissent has in fact been published by the Commission. Not so. A crude first draft of the dissent has been included in a pile of material taken from Senate hearings on election reform. I was not permitted to submit the polished and quite amended version. And that crude first draft does not appear labeled as a dissent, published in its proper place. Furthermore, The Commission's statistical expert, Dr. Allan J. Lichtman, wrote a rejoinder to my dissent, although I had been told no rejoinder was forthcoming without a notational vote. His work was thus inserted into the Senate record (unbeknownst to me), despite the fact that I had been promised a chance to respond to anything he wrote.(see footnote 14)
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Commissioner THERNSTROM: Commissioner Redenbaugh has something on this point.
Commissioner REDENBAUGH: On this matter.
Chairperson BERRY: Oh, yes, Commissioner Redenbaugh.
Commissioner REDENBAUGH: Yes, I am baffled byno, concerned, really, by having a Commissioner's dissent reviewed and analyzed. I mean I think we have and should have a one-bite policy or we get in a situation where then are we going to then analyze the analysis?
Chairperson BERRY: Commissioner Redenbaugh, the majority report of this Commission, by the vote of six to two, is a report which includes a particular statistical analysis. The vote was six to two.
Commissioner REDENBAUGH: Yes, I'm aware.
Chairperson BERRY: And if the dissenters want to challenge the statistical analysis, at least there ought to be a possibility for the statistician to look at it and to comment on it since the majority of this Commission agrees to it. Now, if Commissioner Thernstrom would then like to look at his analysis and analyze it, and then if he would like to look at hers and analyze that, fine, I don't care. You can analyze it till the cows come home. But, in any case, since it is by a majority vote of this Commission, that it is the position of this Commission, it seems to me all together fitting and proper that this be done.
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Yes, Commissioner Thernstrom? Do you have a point on that or something else?
Commissioner THERNSTROM: No, on this. I just wondered if there was any precedent on this matter? It seems to me that you have a report, it's going to be perfectly clear it was supported by six Commissioners, and then you have a dissent to the report. And my understanding is that's always the way it's been done. And because otherwise, yes, I'm going look at Professor Lichtman, and I'm going to say, ''Well, Allan, I want to respond to that.'' I agree with Commissioner Redenbaugh, one bite of the apple. That's what we've always done, to the best of my knowledge.
Chairperson BERRY: That's not what we've always done.
Commissioner EDLEY: Madam Chair?
Chairperson BERRY: And do Commissionersjust so we can get out of thisthis is a democracy, can I have a motion that we permit Professor Lichtman to analyze the materials in the document that will be submitted?
Commissioner EDLEY: Madam Chair, I'd make that motion and clarify that if he does do an analysis and circulates the analysis, that you then just do sort of a notational vote to find out if there's a majority of the Commissioners that would like his analysis included in the report.
Chairperson BERRY: Okay. All right.
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Commissioner EDLEY: Because it may be that the majority would conclude that there's no need for it to be.
Chairperson BERRY: Right. So if that's the case, then why don't you make that motion?
Vice Chairperson REYNOSO: Say ''So moved.''
Commissioner EDLEY: So moved. (Laughter.)
Chairperson BERRY: Could I get a second?
Commissioner LEE: Second.
Commissioner EDLEY: Whatever the transcript says I said.
Chairperson BERRY: All in favor indicate by saying aye.
(Commissioners vote aye.)
Chairperson BERRY: So ordered.
Finally, I would like to address the issue of who manages the operations of this agency. During the House Budget Subcommittee hearing on July 17, 1997, Chairman Berry repeatedly stated that she did not manage the ''day-to-day'' operations of the agency. Further, she said: ''I clearly believe there should be better management at the Commission, that's why we have a new staff director.'' It is true that the statute has delegated day-to-day responsibility to the staff director. However, the chairman and the Commission as a whole are responsible for the operations of the Commission. Under 42 U.S.C. §1975d(3) the Commission appoints personnel it deems advisable and under §1975h(1) the Commission has the power to make rules and regulations necessary to carry out the purposes of the Commission.
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Therefore, contrary to the testimony of the chairman in the 1997 hearings the Commission does not merely supervise the staff director, but rather, has ultimate authority over all personnel, and sets polices and rules governing such personnel. The Commission has a fiduciary obligation to oversee the staff director's management and set the terms by which he does so. Indeed, under 45 CFR §701.12 the staff director is the chief executive officer of the agency. That term has a specific meaning. The staff director is answerable to the Commission just as a CEO is answerable to a Board of Directors, and just as a Board of Directors cannot absolve itself of responsibility for malfeasance, misfeasance or nonfeasance of the CEO, the Commission cannot absolve itself of the malfeasance, misfeasance or nonfeasance of the staff director, nor, by virtue of §1975d(3), any other staff member. In this regard, and by virtue of the responsibilities charged to the Chair under 45 CFR §701.11(c), the Chair has a special responsibility for ensuring that the staff director discharges his responsibilities in accordance with the directives of the Commission.
The Commission, and most particularly the chairman, cannot be blind to or disclaim responsibility for the day-to-day operational failures of the staff director in an Enronesque fashion.
Other management issues plague the Commission. On April 13, 2001, after I had protested the staff director's lack of responsiveness to my concerns, the chairman stated that the staff director does not work for any particular commissioner. He works collectively ''for the Commission'' and does not answer to individual commissioners.(see footnote 15)
Page 49 PREV PAGE TOP OF DOC Chairperson BERRY: [C]ommissioners only have two-one employee as individual Commissioners. That one employee is your assistant, if you have one. We collectively have one employee that we supervise. That is the staff director. The Commissioners collectively do not supervise the staff. The staff director supervises the staff, but we supervise the staff director collectively.
What that means is the staff director is not responsible for responding to any individual Commissioner's direction. The staff director will of course respond to factual inquiries on matters made by Commissioners, but the staff director does not routinelydoes not take direction from any individual Commissioner. The staff director does take direction from the Commission as a whole. That is the way the statute is set up. That is the way the regulations are set up.
The staff director does have a close working relationship with the Chair of the Commission, whoever that is, primarily because the Chair of the commission is responsible for setting the Commission's agenda each month, and has to determine whether or not, for example, materials are ready to go on the agenda, the status of issues, and whether or not things should go forward. The Commissioners have expressed orally in meetings and in other ways that that is the way they understand the relationship to go.
The staff director has not routinely responded in writing to inquiries from individual Commissioners. First of all, if would be too time consuming. Secondly, the staff director does not report to any individual Commissioner but the Commission as a whole.
Although the staff director or his assistant will respond orally to anything anybody wants to knowany Commissioner wants to know, to their special assistant if they have one. If not, to them, if they prefer.
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Finally, contrary to the chairman's statement, as CEO the staff director is unequivocably responsible for responding to an individual Commissioner (not just the Chair or the Commission as a whole) where such Commissioner is performing his or her fiduciary obligations under §1975.
Mr. Chairman, every year the Commission has requested a substantial budget increase. However, the Commission is unable to plan the year, let alone month to month. The chairman's penchant for secretiveness and her desire to control the discourse and the terms of the discussion are such that the entire staff of the Commission floats from day to day.
Being an independent Commission should not mean that the agency is unaccountable for the $9 million dollars it spends every year. At the Commission meeting, last month, Commissioner Braceras asked what might be on the agenda in April. The response from the chairman was: ''I have no idea''(see footnote 16) and the staff director was unable or unwilling to answer either.
Commissioner BRACERAS: I have a question as to what may be coming on the agenda for April.
Chairperson BERRY: I have no idea.
Commissioner BRACERAS: Well, I'm asking staff or whoever might know, because, obviously, somebody's planned something.
Page 51 PREV PAGE TOP OF DOC Chairperson BERRY: Do you know yet, Staff Director?
Commissioner BRACERAS: I hope somebody's planning something.
Staff Director JIN: Well, I mean
Chairperson BERRY: Something will come. I just don't know what.
Staff Director JIN: I guess I'm kind of reminded, at the last meeting we were talking about this meeting. And the chair was saying that we hope to have welfare reform.
Commissioner BRACERAS: Okay, great.
Staff Director JIN: No. My point is this. My point was, like, we try to plan ahead, but you never know what comes up. Okay?
Commissioner BRACERAS: Okay. Well, in a noncommittal way
Staff Director JIN: No, no. Okay, no
Commissioner BRACERAS:can you tell me what you may be planning
Staff Director JIN: II
Page 52 PREV PAGE TOP OF DOC Commissioner BRACERAS: Here's why I ask
Staff Director JIN: I hope to have
Commissioner BRACERAS: Let me just say something.
Staff Director JIN: I hope to have the Alaska Report up by next month.
Commissioner BRACERAS: Okay.
Staff Director JIN: I hope to have that. I'm optimistic, but we'll just have to see.
Commissioner BRACERAS: But are there any briefings, hearings, speakers, anything of that nature
Staff Director JIN: Well, I mean, what I will do is
Commissioner BRACERAS:planned for April?
Staff Director JIN: At this moment, no. But I will do isI mean, we're always looking at different things. If certain things come up where I think there's an opportunity, then I will raise it with the chair. Because as the chair indicated, she's the person responsible who determines what goes on the agenda. And if she feels that it makes sense to come up, then maybe I can persuade her to do that. If not, then not.
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Commissioner BRACERAS: Okay. Well, two things. If there are going to be any briefings, speakers or hearings, I would just appreciate as much notice as possible so I can educate myself on the issues.
The main reason I raise it, frankly, if I know we've talked about going to Florida, probably not as early as April. But I know that's been on the agenda. And just having two toddlers at home, if I'm going to be making a more lengthy trip or a trip that's farther away, I need to make arrangements. So to the extent there were
Chairperson BERRY: Commissioner Braceras, we will meet here in April.
Commissioner BRACERAS: Okay. I'm just making sure.
Chairperson BERRY: I know that.
Commissioner BRACERAS: That's fine. But I'm just asking the staff to take into consideration that, obviously, everybody at this table has personal commitments and personalother areas of work and things in their lives. So if we're going to Florida at a scheduled meeting or otherwise, I really would like four weeks notice to make whatever personal arrangements I need to make.
And I'm telling you that now, because if it comes up in July, I don't want to hear about the trip on July 1st; I'd like to hear about it in May, if possible. So I'm just asking for that consideration.
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Chairperson BERRY: Understood.
Commissioner BRACERAS: And I think all of us could use that.
Chairperson BERRY: Understood.
Yes, Commissioner Wilson?
Commissioner WILSON: I just want to assure Commissioner Braceras that usually we vote on a date when we're going someplace.
Commissioner BRACERAS: Okay, great.
Commissioner WILSON: Way in advance.
Chairperson BERRY: But we're not going anywhere in April.
Commissioner BRACERAS: All right.
Chairperson BERRY: We'll be here. I don't know what we're going to do, but we'll be here.
Commissioner BRACERAS: I mean, my point was two-fold, Madam Chair.
Page 55 PREV PAGE TOP OF DOC First of all, assuming we were going to be here, I wanted to be prepared and informed for whatever substantive issue we're discussing. And then the other point was more of a forward-looking point, that we've had this discussion about going to Florida for several months now. And to the extent thatas soon as this narrows down, I think the commissioners need to be informed quickly so that we can make those arrangements, because it may be a longer period of time than usual, and we need to plan for that in our personal lives. So that was just a second FYI.
Chairperson BERRY: All right. Anyone else have anything else?
The problems I have outlined are, frankly, the tip of a very large iceberg. Obviously, the Commission should function in a responsible manner. It should be a place of procedural integrity, a forum for robust debate, and a source of hard facts on current civil rights issues. It fails on all these counts. Indeed, it has become a national embarrassment.
Thank you very much.
Mr. CHABOT. Thank you, Commissioner Thernstrom.
STATEMENT OF LES JIN, STAFF DIRECTOR, U.S. COMMISSION ON CIVIL RIGHTS
Mr. JIN. Thank you, Chairman Chabot, Congressman Nadler, and Members of the Subcommittee.
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I am Les Jin, the staff director for the U.S. Commission on Civil Rights. I have served in this position, as you noted, for a year and a half. And I thank you for this invitation to provide testimony on the management practices of this agency.
As the Subcommittee knows, over the last 9 or 10 months, we have gotten six sets of inquiries from the Subcommittee. We have responded fully to each of them. They've covered most all if not every one of the topics that have been raised here so far. Among those submissions are the three full boxes over there that we have provided. And we have been totally responsive.
I am proud of the work of the managers and staff of the commission. They perform in a generally exemplary fashion, despite the challenging constraints brought about by the commission's diminished resources.
In your letter of invitation, Mr. Chairman, you indicated that you wanted me to provide testimony on my thoughts on the management practices of the Civil Rights Commission. I am pleased to provide you and the Subcommittee with this information. I look forward to discussing the substantive results of the management practices.
The ultimate test of good management is that the commission has produced quality work in a timely manner, covering a broad range of civil rights topics.
Ms. THERNSTROM. Oh my.
Page 57 PREV PAGE TOP OF DOC Mr. JIN. Two issues in which the commission has made enormous contributions to the public discussions are civil rights issues and, with respect to election reform
Ms. THERNSTROM. No.
Mr. JIN [continuing]. And the post-September 11th issues.
Beyond holding public forums and issuing reports, the commission has worked to monitor and track the impact of our activities, since it is our hope that our work leads to positive changes and progress for the struggle for equality.
Although the results of the commission's activities are not always quantifiable, primarily because we are a study commission and do not possess enforcement powers, there are many instances where the commission's activities played a role in creating substantive change that have improved the area of civil rights. They include:
First, the commission held high-profile hearings in Florida in January and February of 2001, highlighting many of the shortcomings in the Florida November 2000 election.
In May 2001, Governor Jeb Bush signed into law the Florida Election Reform Act of 2001. State legislation as well as the national election reform proposal currently being debated in this Congress address some of the recommendations and concerns raised in the commission's two reports, one on Florida and the other on election reform.
Page 58 PREV PAGE TOP OF DOC Second, in August of 2000, the commission studied the issue of racial profiling and police-community relations in a report titled ''Police Practices and Civil Rights in New York City.'' And as Congressman Nadler noted, since that time, the New York Police Department commissioners issued a strongly worded order against the use of any racial profiling for arrests, car stops, or any other law enforcement actions.
In 1986, this Subcommittee convened oversight hearings in response to a GAO audit report entitled ''Operations of the U.S. Commission on Civil Rights,'' which found that from approximately 1984 to 1986, the agency issued one report, no State advisory committee reports, and no reports analyzing Federal civil rights enforcement. That was a dismal record.
I am pleased to report to you that in addition to all of the other work conducted by this commission currently, including many, many reports being issued the last several years, it has issued a civil rights enforcement report every year since 1989.
Nearly 10 years later, in July 1997, the GAO providedperformed another audit of the agency that recommended some areas of improvement for the commission. These 1997 recommendations pale in comparison to the 1986 findings of improper personnel practices, operating procedures, and changesand charges of financial mismanagement.
I emphasize that these GAOI emphasize these GAO reports because I believe that it is crucial that this Subcommittee's review of today's management issues be placed in proper context when considering where this commission has been and how far it has come.
To appraise the management of the commission, it is important to understand that, under the statute and commission policy, the commissioners are part-time officials who meet once a month and maintain policy guidance and review, and approve or disapprove the work of the staff.
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The civil service staff under the supervision of the staff director produce the work products of the commission. This includes directing investigations, selecting witnesses for hearings, and experts and advocates for briefings and consultations.
Commissioners make suggestions, but the staff decides how proceedings may be most effectively conducted.
The staff also handles civil rights complaints about the activities of other Government agencies from the public and monitors the work of the Federal civil rights enforcement agencies. In addition, it provides support to State and local civil rights forums conducted by the 51 State advisory committees.
As a matter of commission policy, commissioners do not involve themselves in the day-to-day operation of the commission. Each commissioner has the same information access to drafts of the reports, witness lists, agendas, and other materials, at the same time. The policies and procedures ensure that the work is not biased in the direction of any of the commissioner's views and protects the integrity of the commission's work.
The current commission operates according to these long-established policies and has expressed no desire to change them.
It is no secret that, at times, the commission disagrees overthe commissioners disagree over commission policies, practices, and procedures.
Page 60 PREV PAGE TOP OF DOC I suggest to the Subcommittee that what has been described as alleged mismanagement issues are in fact disagreements about the policies, practices, and procedures.
Mr. Chairman, I request that my prepared statement be inserted into the record. And I would also ask that the six sets of questions from the Subcommittee, dated June 22, 2001; July 10, 2001; July 20, 2001; August 21, 2001; February 14, 2002; and March 17, 2002; and our responses, be inserted into the record as well.
Thank you, Mr. Chairman.
Mr. CHABOT. Without objection, they'll be accepted into the record.
[The prepared statement of Mr. Jin follows:]
PREPARED STATEMENT OF LES JIN
Chairman Chabot, Congressman Nadler and members of the Subcommittee, I am Les Jin, the Staff Director of the United States Commission on Civil Rights. I have served in this position for approximately 1-1/2 years and I thank you for this invitation to provide testimony on the management practices of the agency.
As an independent, bipartisan, fact-finding agency of the federal government, the Commission is mandated to collect, study, and publish information concerning denials of equal protection of the laws because of race, color, religion, sex, age, disability, or national origin, or in the administration of justice. More specifically, the Commission is charged to investigate allegations in writing under oath or affirmation relating to deprivations (A) because of color, race, religion, sex, age, disability, or national origin; or (B) as a result of any pattern or practice of fraud; of the right of citizens of the United States to vote and have those votes counted. The Commission reports its findings and recommendations to the President and Congress.
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As the Staff Director of the Commission, I serve as the administrative head of the agency and am responsible for its day-to-day activities. The Commissioners meet each month, with the exception of August, in order to establish the agenda of the agency. It is my responsibility to execute the Commission's agreed upon agenda by working with the agency's management team. I regularly meet each week, if not more often, with the managers in order to discuss the status of ongoing activities.
I am proud of the work of the managers and staff of the Commission. They perform in an exemplary fashion, despite the challenging constraints brought upon by the Commission's diminished resources over the past almost decade. The agency has received flat-lined appropriations since its last reauthorization. In 1995, the Commission received $9,000,000 and was authorized at 95 FTEs. Under our most recent appropriation (FY 2002), the Commission received $9,096,000 and was authorized at 76 FTEs. Adjusted for inflation, the Commission would be appropriated $10,459,934 if the 1995 appropriation were reflected in 2002 dollars.
In your letter of invitation Mr. Chairman, you indicated that you wanted me to provide testimony on my ''thoughts on the management practices of the Civil Rights Commission.'' I am pleased to provide you and the Subcommittee with this information, and I also look forward to discussing the substantive results of these ''management practices.'' It is no secret that at times the Commission is very divided based on political philosophy. Sometimes these philosophical differences get translated into other arenas, such as management issues. Thus, I believe that the Subcommittee will find that many of the alleged management issues are the result of disagreements based on civil rights policy that have spilled over into a debate on Commission management. The ultimate test of good management is that the Commission has produced quality work in a timely manner, covering a broad range of civil rights topics.
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Two issues on which the Commission has made enormous contributions to the public discussion are civil rights issues with respect to election reform and post-September 11. I would encourage the Subcommittee to schedule hearings before this Congress adjourns on both topics and invite the Commission to present testimony on these issues that are so fundamental to the civil rights of our citizens.
II. ACCOMPLISHMENTS OF COMMISSION
As the nation's conscience on matters of civil rights, the Commission strives to keep the President, the Congress, and the public informed about civil rights issues that deserve concentrated attention. In doing so, the agency continually reminds all Americans why vigorous civil rights enforcement is in our national interest. Within the past two years, the Commission has approved and published several reports on a diverse range of topics that include studies on the enforcement of the Americans with Disabilities Act, police practices, voting irregularities during the 2000 presidential election and proposed recommendations for election reform legislation. Attached to this statement is a full list of projects the Commission has produced recently and on which it is currently working.
As America confronts the tragic circumstances surrounding September 11, incidents of harassment and direct attacks against Arab and Muslim Americans and others perceived as members of these groups continue to emerge. The Commission is uniquely situated to respond to the Muslim and Arab American communities by offering assistance in addressing incidents of religious and ethnic intolerance. To date, the Commission has established a complaint hotline to solicit and catalogue discrimination complaints from members of the affected communities; held a briefing on U.S. immigration policies in the aftermath of recent terrorist activities; sought the advice of a renowned expert on bioterrorism and its relationship to access to health care; and had its State Advisory Committees organize forums or engage in other efforts on post September 11 civil rights issues. As they are completed, summaries of the Advisory Committees' reviews will be posted on the Commission's Web site. To our knowledge, this collection of projects and efforts by the Commission and its advisory committees comprise the broadest and most extensive examination of these civil rights issues by any public or private entity. Such reviews bolster the greatness of our nation, which rests on our exceptional diversity of religions, nationalities, and ethnic backgrounds.
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In 1996, the Commission created a Web site that continues to increase in popularity as we work to make it more user friendly. Hits to our Web site have increased more than ten fold between 2000 and 2001. Visitors to the Web site can download Commission reports, order publications, file a civil rights complaint, and view certain briefings online.
Beyond holding public forums and issuing reports, the Commission has worked to monitor and track the impact of our activities, since it is our hope that our work leads to positive changes and progress in the struggle for equality. Although the results of the Commission's activities are not always quantifiable, primarily because we are a study commission and do not possess enforcement powers, there are many instances where the Commission's activities played a role in creating substantive changes that improved the area of civil rights. These include:
The Commission held high profile hearings in Florida in January and February, 2001, highlighting many of the shortcomings in the Florida November 2000 election. In May of 2001, Governor Jeb Bush signed into law the Florida Election Reform Act of 2001. This state legislation as well as the national election reform proposal currently being debated in this Congress address some of the recommendations and concerns raised in the Commission's reports, Voting Irregularities in Florida During the 2000 Presidential Election and Election Reform: An Analysis of Proposals and the Commission's Recommendations for Improving America's Election System.
In August 2000, the Commission studied the issue of racial profiling and police-community relations in a report titled Police Practices and Civil Rights in New York City. Since that time the NYPD chief has issued a strongly worded order against the use of any racial profiling for arrests, car stops, or any other law enforcement actions.
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In March 1999, as a result of recommendations made in a Commission report titled Helping Employers Comply with the ADA, the EEOC issued enforcement guidance on reasonable accommodation and undue hardship under the ADA.
In a 1992 report titled Civil Rights Issues Facing Asian Americans in the 1990s, the Commission recommended that the Department of Justice prepare and disseminate a ''civil rights handbook'' that informs all groups, particularly recent immigrants, of their civil rights. Subsequent to this recommendation, the Justice Department published a brochure that resembles our recommendation entitled ''Federal Protections Against National Origin Discrimination,'' which is printed in 12 languages and is available on Justice's Web site.
In 1999, the Justice Department issued a major policy guidance and established a formal technical assistance and training program on Title VI requirements and enforcement. The Department of Justice's Coordination and Review Section attributed this development to the recommendation made in the Commission's report, Federal Title VI Enforcement to Ensure Nondiscrimination in Federally Assisted Programs.
While conducting studies and issuing reports are the Commission's main vehicles for fulfilling its civil rights mission, they are not its only tools. Other tools include the Commission's Web site, national complaints tracking and referral unit, library, and public service announcements, as well as other publications.
Page 65 PREV PAGE TOP OF DOC In preparing for today's hearing, I reviewed some of the records from the 1986 oversight hearings this Subcommittee convened. These hearings were held in response to a GAO audit and observations by the Subcommittee, which found that from approximately 1984 to 1986, the agency issued only one report, which was on comparable worth, no State Advisory Committee reports, and no reports analyzing federal civil rights enforcement. With this unfortunate track record, I am pleased to report that the Commission has issued a civil rights enforcement report every year since 1989.
Nearly 10 years later in July 1997, the GAO performed another audit of the agency that recommended some areas of improvement for the Commission. These 1997 recommendations pale in comparison to the 1986 findings of improper personnel practices and operating procedures and charges of financial mismanagement. I emphasize these GAO reports because I believe that it is crucial that the Subcommittee's review of today's management issues be placed in proper context when considering where this Commission has been and how far it has come. Moreover, as noted in the next section, these accomplishments have occurred in a most difficult budgetary environment that becomes more precarious every year.
IV. BUDGETARY NEEDS
The Commission's appropriations have remained stagnant for close to a decade. It has received level or ''flat-lined'' funding since it was last authorized in 1994. The requests that the Commission has submitted have been well justified, but these flat-lined appropriations have had a significant effect on the agency.
Further, funding cuts in the mid to late eighties forced the Commission to eliminate or consolidate five major offices: the Office of Program and Policy, the Office of Research, the Planning and Coordination Unit, the Solicitor's Unit, and the Equal Employment Opportunity Unit. The duties of the staff assigned to these offices have placed a greater workload on the remaining Commission staff.
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Managing and working in such an environment are difficult for a number of other reasons. Planning is hard with a stagnant budget that does not account for inflation. As a result, our budget shrinks each year. Additionally, our diminishing budget makes it difficult to recruit and retain committed and qualified staff.
A review of the positions that we have had to leave vacant illustrates an important story. The Commission does not have a director of Congressional Affairs. In fact it does not have one full time staff dedicated to Congressional Affairs. The director of our Budget and Finance Division is also serving as the director of Human Resources. Further stretching the management team is the fact that the Commission's deputy director position has been vacant for many years. In most agencies, this position is responsible for the organization's day-to-day management.
Another consequence of being a small agency with poor and inadequate funding levels is a significant portion of our staff resources is used toward fundamental administrative support functions, rather than services or programs. No matter how small an agency, the Commission remains a federal agency with the same fixed costs and responsibilities to operate in accordance to all the rules and requirements applicable to all federal agencies.
Day-to-day management is a significant challenge, aggravated by the Commission's severe budgetary problems and a structure where policy and philosophical disagreements sometimes are converted into alleged management problems. When examining the ''management practices'' of the Commission, one has to begin with the question of whether it is effectively and efficiently accomplishing its mission as stated in our legislation. As demonstrated in the forgoing sections, the answer is it is and, in recent years, has been improving.
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ACCOMPLISHMENTS OF COMMISSION
Within the limits of our sparse budget, the Commission has accomplished a great deal. The Commission accomplishments include (i) conducting oversight responsibilities over federal agencies; (ii) investigating other civil rights matters, and (iii) addressing emerging issues.
A. Overseeing Federal Agencies
The Commission is statutorily mandated to monitor the federal government, including agencies like the U.S. Department of Justice, to ensure the federal government is fulfilling its civil rights enforcement responsibilities. Our role is particularly significant because the Commission serves as the only independent federal agency possessing this important oversight function. Generally, the Commission accomplishes this function through conducting fact-finding studies and publishing reports. For example, the Commission has conducted during the past 18 months or plans to initiate during FY 2002 the following studies and reports:
Funding Federal Civil Rights Enforcement: 2000 and Beyond (February 2001): Examined the budgets of civil rights enforcement agencies and found that their resources lag behind their workloads.
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A Bridge to One America: The Civil Rights Performance of the Clinton Administration (April 2001): Provided an overview of civil rights issues from 1993 to 2000, highlighted initiatives of the Clinton administration, and assessed the administration's effectiveness in addressing civil rights issues.
Federal Efforts to Eradicate Employment Discrimination in State and Local Governments: An Assessment of the U.S. Department of Justice's Employment Litigation Section (September 2001): Evaluated the efforts of the Department of Justice's Employment Litigation Section (ELS) in enforcing Title VII of the Civil Rights Act of 1964, as amended. In particular, the Commission's report focused on the extent to which ELS is fulfilling its mandate as the lead federal office charged with eliminating employment discrimination in the public sector.
Ten-Year Review of Commission Recommendations: Will examine the impact of previous Commission reports and evaluate federal agencies' efforts to implement recommendations stemming from Commission reports issued between 1991 and 2000.
B. Other Reports and Investigations
In addition to monitoring federal agencies, the Commission is also responsible for identifying and investigating denials of civil rights and equal protection under the laws. The Commission achieves this mission through investigations and hearings, which culminate in fact-finding reports, statements, and recommendations addressing these problems.
Among key accomplishments in this area are the following:
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Sharing the Dream: Is the Americans with Disabilities Act Accommodating All? (October 2000): Analyzed the ADA's goals and the impact the act has had on those it was intended to protect. The report also discussed the practical effects of the ADA and court decisions affecting its scope.
Police Practices and Civil Rights in New York City (August 2000): Looked into the police practices of New York City and the impact these practices have on the civil rights of individuals living in communities served by the NYPD.
Racial and Ethnic Tensions in American Communities: Poverty, Inequality, and Discrimination-Volume VII: The Mississippi Delta Report (February 2001): Examined three topics with respect to racial and ethnic tensions in the Delta: economic opportunity, educational opportunity, and voting rights.
Revisiting Who Is Guarding the Guardians? A Report on Police Practices and Civil Rights in America (November 2000): Explored how police practices have evolved since the Commission's landmark 1981 report, Who Is Guarding the Guardians?
The Commission concluded two days of hearings on environmental justice in February 2002 and will issue a report in either late FY 2002 or early FY 2003. The project evaluates the effects of waste treatment or poisonous chemical facilities in minority or disadvantaged communities and whether environmental statutes and regulations are adopted and enforced without discrimination based on race, ethnicity, and/or other bases.
Page 70 PREV PAGE TOP OF DOC During FY 2002, the Commission will examine the issue of Educational Accountability. This project will focus on the civil rights implications and the methods of holding public education institutions accountable for how well children are being educated.
In the second half of FY 2002, the Commission will study Native American Access and Justice Issues. The Commission will examine the criminal justice system to determine the extent to which Native Americans experience discrimination in the administration of justice. This is a national examination of issues raised earlier in South Dakota on the same subject, which resulted in the March 2000 South Dakota Advisory Committee report, Native Americans in South Dakota: An Erosion of Confidence in the Justice System.
The Commission has volunteer State Advisory Committees (SACs) in every state and the District of Columbia. The SACs serve as the Commission's ''eyes and ears'' and advise it on civil rights developments in their respective states. The SACs fulfill this role in many ways, including through the issuance of reports. Among the reports published in the past 12 months are the following:
Equal Educational Opportunity for Native American Students in Montana Public Schools (July 2001)
Race Relations and Des Moines' New Immigrants (May 2001)
Civil Rights Issues Facing Arab Americans in Michigan (May 2001)
The Decision to Prosecute Drug Offenders and Homicides in Marion County, Indiana (April 2001)
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Community Forum on Race Relations in Racine County, Wisconsin (March 2001)
C. Addressing Emerging Issues
Most Commission projects are proposed, developed, and implemented through a process of advanced planning. Despite this planning, unexpected issues arise that are of a nature that compels the Commissioners to address them. These ''emerging issues'' have such a significant impact on civil rights that the Commission's role as ''conscience of America'' on civil rights issues would be severely undermined if the Commission failed to address them immediately or if the Commission was unable to properly address these issues due to inadequate resources. Among emerging issues the Commission has addressed in the past 12 months are the following:
Voting Irregularities in Florida During the 2000 Presidential Election (June 2001): Completed a formal investigation of alleged voting irregularities in the state of Florida arising out of the November 7, 2000, presidential election. This report examines the extent of and reasons for voter disenfranchisement in Florida and covers such issues as Election Day problems, disenfranchisement of citizens with disabilities and those with limited English proficiency, felon exclusion lists, voting technology, resource allocation, and election responsibility and accountability.
Election Reform: An Analysis of Proposals and the Commission's Recommendations for Improving America's Election System (November 2001): Continued the Commission's ongoing monitoring of voting rights enforcement and election reform. The report reviewed national election reform initiatives, as well as studies and proposals of both public and private entities, and provided recommendations for reform.
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Reconciliation at a Crossroads: The Implications of the Apology Resolution and Rice v. Cayetano for Federal and State Programs Benefiting Native Hawaiians (June 2001): Addressed new issues affecting Native Hawaiians resulting from a U.S. Supreme Court decision. While this was an Advisory Committee project, it exemplified an effective collaboration between the Commission's headquarters office and a SAC. It included active participation of three Commissioners at the SAC-sponsored community forum and allocation of headquarters resources in developing the final report.
Boundaries of Justice Briefing: The civil rights issues stemming from the tragic events of September 11 serve as an example of an emerging issue that required immediate Commission action. The events of September 11, 2001, led Americans to join together in their commitment to combat terrorism. However, the Commission found that too frequently the events also led individuals to commit hate crimes and acts of discrimination. In October 2001, the Commission held a briefing to identify and address some of these concerns. Additionally, a number of the Commission's SACs are conducting forums and engaging in other activities on these topics.
Alaska Forum: In August 2001, the Alaska Advisory Committee organized a fact-finding forum primarily focusing on three areas of civil rights concerns: education, employment, and the administration of justice. This forum was sparked by numerous incidents of hatred and bias that culminated in January 2001, when a group of teenagers attacked unarmed Native Alaskans with paintball guns and videotaped their escapades. Three Commissioners also participated in this forum. The SAC held a second forum in conjunction with the annual Conference of the Alaska Federation of Natives in October 2001. A report will soon be published that summarizes the issues that arose in the two forums and provides recommendations.
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Mr. CHABOT. Thank you very much.
STATEMENT OF HILARY O. SHELTON, DIRECTOR, NAACP WASHINGTON BUREAU
Mr. SHELTON. Thank you, Mr. Chairman, Mr. Nadler, and other Members of the Committee.
I come to you today on behalf of the more than 500,000 card-carrying members of the NAACP, who comprise more than 1,700 branches across the Nation and in Europe and Asia. The NAACP is the oldest, largest and most widely recognized civil rights organization in the United States. And since its founding in 1909, the NAACP has been a leading voice for the civil rights of all Americans.
I am pleased to have the opportunity to discuss the work of the U.S. Commission on Civil Rights. Let me say from the outset that I am somewhat disappointed in this hearing, so far in that it appears that the Subcommittee's primary interest is not the substance of the commission's work but rather the day-to-day details of the commission's internal management.
Given the Subcommittee's jurisdiction and its long history of helping to construct some of the most important civil rights laws in the history of our Nation, I had hoped to come here today to share with you a mutual admiration for the work of the commission. I had also hoped to hear representatives of the commission and the Subcommittee pledge to continue to work together to address some of the more pressing problems that continue to plague our Nation.
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The NAACP deeply appreciates and often relies upon the important work of the U.S. Commission on Civil Rights. The investigations and reports produced by the commission, and the recommendations that have come from its work, have been of vital importance to the continued efforts by my association and by this Nation to make good on the promise of equality and freedom for all.
Like every important civil rights battle that we have fought over the years, the founding of the U.S. Commission on Civil Rights in 1957 was not without controversy. It was established thanks to the persistence of President Eisenhower and the courage of many Members of the Congress. The commission was founded at a time when lynchings and church bombings were still very much a part of American life, and it was the object of at least one proposed bill to, quote, ''meet the funeral expenses of members of the Civil Rights Commission,'' unquote.
As the members of the NAACP know all too well, it is perhaps an occupational hazard of those who choose to speak truth to power that they will become the object of scorn, ridicule, harassment, and persistent efforts to silence them.
The commission has a long track record in the field of civil rights and of taking positions that are sometimes neither popular with the public nor with the existing political powers. Yet time and again, the commission has persisted. Their findings have withstood the test of time, and their recommendations have proven to be accurate, if not essential, for helping to mend some of the serious flaws that continue to plague our Nation.
Many Members of the Committee are aware of the long record of important issues that the commission has tackled during its tenure. Many of the commission's reports, from the first one in 1959 on the protection of voting rights, have led to landmark pieces of legislation that have improved the plight of millions of Americans.
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While I am probably repeating a history that most Members of the Subcommittee are familiar with, I think that the strength of the work of the U.S. Commission on Civil Rights bears repeating again and again.
Due to time constraints, I will highlight only a few of the works of the commission. I am sorry that I cannot adequately even begin to summarize the depth and breadth of the work of the commission, and I hope that the Subcommittee will schedule another hearing in the near future to focus on the substance of the work of the Civil Rights Commission.
During its tenure, the commission has investigated and reported on issues affecting native Hawaiians; age discrimination; the education, employment, and administrative concerns of native Alaskans; the funding of civil rights enforcement by the Federal Government; efforts to eradicate employment discrimination in State and local governments; racial and ethnic tensions in American communities; the implementation of Americans with Disabilities Act; ways of strengthening relations between racial and ethnic minorities and law enforcement; and environmental justice issues in low-income, racial and ethnic minority communities.
Often, the reports issued by the commission have directly resulted in legislative action by Congress, the States, and local governments as well. Often, this legislation closely follows many of the recommendations issued by the commission.
As I have mentioned, the commission's reports have also been of significant assistance to the NAACP. In the late 1990's, the commission issued a compilation of essays on the crisis of young, inner-city African-American men. This report has been used extensively by the NAACP in our efforts to address many of the issues that it raised.
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Lastly, true to its roots, in June 2001, the commission issued a report on problems that surfaced in the 2000 presidential election. As the Subcommittee may be aware, the NAACP was and continues to be very involved in the problems that were brought to light in the 2000 election and in trying to implement changes at the State and Federal levels to see to it that these problems are corrected.
Like the first report issued by the commission in 1959, the most recent report on voting rights violations has made an impact on election reform legislation currently moving through the Congress. As a matter of fact, the Senate just approved election reform legislation just a few minutes ago.
And so I would like to thank the Members of the Subcommittee for allowing me to reemphasize the crucial works of the commission. I hope that after your careful examination of the commission and all that it has done and all that it still has to do, this Subcommittee will become one of its biggest champions, providing it with the resources necessary to be effective in its pursuit of equality and fairness for all Americans.
The commission serves as the conscience of the Nation. The commission's reports allow us to sift facts from fiction, and serves as a barometer to let us know how we as a Nation are doing in our promise to provide every American, regardless of his or her race, ethnicity, religion, disability, or gender with the opportunities to pursue life, liberty, and the pursuit of happiness.
Our country needs the U.S. Commission on Civil Rights, as it is one of our primary defenses against allowing the forces of racism and bigotry to continue to hold us back from reaching our full potential.
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Thank you very much.
[The prepared statement of Mr. Shelton follows:]
PREPARED STATEMENT OF HILARY O. SHELTON
Thank you, Mr. Chairman. I come to you today on behalf of the more than 500,000 card-carrying members of the NAACP, who comprise more than 1700 branches across the nation and in Europe and Asia. The NAACP is the oldest, largest and most widely-recognized civil rights organization in the United States, and since it's founding in 1909, the NAACP has been a leading voice for the civil rights of all Americans. Whether in the classroom, the community, or the workplace, the NAACP has fought for equal rights before the courts, in the states, and here in our nation's capitol. I am pleased to have the opportunity to discuss the work of the U.S. Commission on Civil Rights.
Let me say from the outset that I am somewhat disappointed in this hearing so far in that it appears that the Subcommittee's primary interest is not the substance of the Commission's works but rather the day-to-day details of the Commission's internal management.
Given the Subcommittee's jurisdiction and its long history of helping to construct some of he most important civil rights laws in the history of our nation, I had hoped to come here today to share with you a mutual admiration for the work of the Commission. I had also hoped to hear representatives of the Commission and the Subcommittee pledge to continue to work together to address some of the more pressing problems that continue to plague our nation.
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The NAACP deeply appreciates and often relies upon the important work of the Civil Rights Commission. The investigations and reports produced by the Commission, and the recommendations that have come from its work, have been of vital importance to the continued efforts by my association and by this nation to make good on the promise of equality and freedom for all.
Like every important civil rights battle that we have fought over the years, the founding of the US Commission on Civil Rights in 1957 was not without controversy. It was established thanks to the persistence of President Eisenhower and the courage of members of the Congress. The Commission was founded at a time when lynchings and church bombings were still very much a part of American life, and it was the object of at least one proposed bill to ''meet the funeral expenses for members of the Civil Rights Commission. . . .''
As the members of the NAACP know all too well, it is perhaps an occupational hazard of those who choose to speak truth to power that they will become the objects of scorn, ridicule, harassment and persistent efforts to silence them. The Commission has a long track record in the field of civil rights and of taking positions that are sometimes neither popular with the public nor with the existing political powers. Yet time and again, the commission has persisted. Their findings have withstood the test of time and their recommendations have proven to be accurate, if not essential, for helping to mend some of the serious flaws that continue to plague our nation.
Many members of this committee are aware of the long record of important issues that the Commission has tackled during its tenure. Many of the commission's reports, from the first one in 1959 on the protection of Voting Rights, have led to landmark pieces of legislation that have improved the plight of millions of Americans.
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While I am probably repeating a history that most Members of this subcommittee are familiar with, I think that the strength of the work of the US Commission on Civil Rights bears repeating again and again. Due to time constraints, I will highlight only a few of the works of the Commission. I am sorry that I cannot adequately even begin to summarize the depth and breadth of the work of the Commission, and I hope that the Subcommittee will schedule another hearing in the near future to focus on the substance of the work of the Civil Rights Commission.
During its tenure, the Commission has investigated and reported on issues affecting native Hawaiians; age discrimination; the education, employment and administrative concerns of native Alaskans; the funding of civil rights enforcement by the federal government; efforts to eradicate employment discrimination in state and local governments; racial and ethnic tensions in American communities; implementation of the Americans with Disabilities Act; ways of strengthening relations between racial and ethnic minorities and local law enforcement; and environmental justice issues in low-income, racial and ethnic minority communities.
Often, the reports issued by the Commission have directly resulted in legislative action by Congress, the states, and local governments. Often this legislation closely follows many of the recommendations issued by the Commission.
As I have mentioned, the commission's reports have also been of significant assistance to the NAACP. In the late 1990's, the Commission issued a compilation of essays on the crisis of young, inner city African American men. This report has been used extensively by the NAACP in our efforts to address many of the issues raised.
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Lastly, true to its roots, in June 2001 the Commission issued a report on problems that surfaced in the 2000 Presidential election. As the Subcommittee may be aware, the NAACP was and continues to be very involved in the problems that were brought to light in the 2000 election, and in trying to implement changes at the state and federal level to see that these problems are corrected. Like the first report issued by the Commission in 1959, the most recent report on voting rights violations is having an impact on election reform legislation currently moving through Congress.
And so I would like to thank the members of this subcommittee for allowing me to reemphasize the crucial works of the Commission. I hope that after your careful examination of the Commission and all that it has done and all that it still has to do, this Subcommittee will become one of its biggest champions, providing it with the resources necessary to be effective in its pursuit of equality and fairness for all Americans.
The Commission serves as the conscience of the nation. The Commission's reports allow us to sift fact from fiction, and serves as a barometer to let us know how we as a nation are doing in our promise to provide every American, regardless of his or her race, ethnicity, religion, disability, or gender with the opportunities to pursue life, liberty and happiness.
Our country needs the US Commission on Civil Rights, as it is one of our primary defenses against allowing the forces of racism and bigotry to continue to hold us back from reaching our full potential.
Page 81 PREV PAGE TOP OF DOC Mr. CHABOT. Thank you, Mr. Shelton.
STATEMENT OF THOMAS SCHATZ, PRESIDENT, CITIZENS AGAINST GOVERNMENT WASTE
Mr. SCHATZ. Thank you very much, Mr. Chairman. I'm glad to be here today as president of Citizens Against Government Waste, representing our 1 million and supporters around the country.
By way of background, I was legislative director for 6 years for the Honorable Hamilton Fish, who was a former Ranking Member of this full Committee. During that time, I worked on reauthorization of the Voting Rights Act of 1982, the Voting Accessibility for the Elderly and Handicapped Act in 1984, and the Fair Housing Act.
I am personally familiar with the fine work of the commission, and I am somewhat disillusioned that the commission today appears to be more partisan and more political. Regardless of how and when this partisanship began, it's important for commissioners to cooperate with each other and for the commission and this Subcommittee to cooperate with each other.
There is no question that the work of the commission deserves to be given a full airing by the committee, that the issues that it deals with are important. But when the Washington Post questions the very need for its existence, it's obvious that there are some problems that need to be addressed. And I think that before the work can continue or can at least be seen without the veil of partisanship, management issues are extremely important, regardless of how small they might seem to be.
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In July 1997, the GAO did review management issues at the commission and found that it was in disarray with limited awareness of how its resources were used. GAO concluded the commission and its operations lacked order, control, and coordination. It found that management was unaware of how taxpayer funds were being used.
These deficiencies made the commission vulnerable to misuse of resources and that the lack of attention to basic requirements applying to all Federal agencies, such as up-to-date descriptions of operations and internal guidance for employees, reflects poorly on the overall management of the commission.
GAO also recommended that the commission develop and document policies and procedures, assigning responsibility for management functions to the staff director and other commission officials and provide mechanisms for holding those people accountable for managing the day-to-day functions of the agency.
And certainly this Subcommittee is exercising appropriate jurisdiction to ask questions about how management is being conducted.
The two recent comments, both in Time magazine, regarding the hotline reporting hate crimes or discrimination in the wake of September 11th, which they describedbegan as a joke and ended as a potential tragedy. The article points out how the initial press release listed the wrong 800-number, sending callers not to the commission but to a love connection service. Possibly an honest mistake, but certainly something that caused a great deal of consternation under the circumstances.
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There are alsothere's also a dispute between the Department of Justice and the commission as to what to do with the information that came in from that hotline.
Again, going back to the Post, and I just want to quote briefly from that article. It said that the only function of the commission is to inform and elevate the debate. If it cannot do this, it is not worth having. It is certainly not worth spending $9 million of public money each year to inflame passions further.
And I, again, hope that we can get beyond this and get back to the fine work that had been done over the years by the commission.
We do have a very specific concern about the relationship between the private public relations firm, McKinney and McDowell, and the commission.
The commission has paid some $170,000 to this agency, yet it still has its own public affairs office that pays employees about $208,000 a year. In the initial contract with McKinney, it called for the public relations firm to represent all commissioners, but it was later amended so that the services would only be responsible to the chairwoman.
The commission's staff director has argued that the agreement with McKinney is for contracted services, not consulting services, and therefore the commission's $50,000 limit on consulting services would not be applicable. Regardless of characterization, and I'll leave that to the lawyers to argue about, it is highly unusual for any Federal agency to hire a private firm to handle public relations, regardless of whether it's consulting or contracting. Other agencies do not do this on a regular basis.
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In a recent Scripps Howard column, several public affairs directors in other agencies were asked about hiring outside assistance for this purpose. All commented on how unusual this is and said it is not warranted. The U.S. Sentencing Commission, in particular, has a similar budget to the Civil Rights Commission and said they would never even think about using the resources of that commission in that manner.
There appears to be a dispute between the need for oversight by this Subcommittee and the independence of the commission. We just are looking for some accountability and for the taxpayers to be assured that their money is being spent wisely.
It appears that, given the dispute between the Subcommittee and the commission, the best way to solve this dispute might be to call for another study by the General Accounting Office. That would not impede the work of the commission; it would not impede the Subcommittee from looking at other issue; and hopefully it will bring in an impartial third party, so that we can move with the kind of work that Mr. Nadler has talked about and that other witnesses have talked about. And we can move forward in that manner.
The U.S. Commission on Civil Rights' past history is rich and purposeful. But no matter how large or small an agency, no matter its mission, taxpayers expect their money to be spent in an efficient and orderly manner with timely and tangible results from that investment.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Schatz follows:]
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PREPARED STATEMENT OF THOMAS A. SCHATZ
My name is Thomas A. Schatz and I am president of Citizens Against Government Waste. CAGW is a 501c (3), private, nonprofit, nonpartisan organization dedicated to educating the American public about waste, mismanagement and inefficiency in the federal government. CAGW was founded in 1984 by J. Peter Grace and nationally-syndicated columnist Jack Anderson to build public support for implementation of President Reagan's Private Sector Survey on Cost Control, better known as the Grace Commission. CAGW currently has more than one million members and supporters. Since 1986, CAGW has helped save taxpayers more than $687 billion. CAGW does not receive any grants from the federal government. I appreciate the opportunity to provide testimony before this subcommittee today.
By way of background, I was the legislative director for six years for the late Rep. Hamilton Fish (R-N.Y.), a former ranking member of the Judiciary Committee. During that time I worked on reauthorization of the Voting Rights Act of 1982, the Voting Accessibility for the Elderly and Handicapped Act in 1984, and the Fair Housing Act.
I am personally familiar with the fine work of the Civil Rights Commission, but I have become disillusioned that the commission today appears to be more political and less bipartisan. Partisanship can undermine the morale of staff and distort the conclusions of the commission's studies and reports. Regardless of how and when this partisanship began, it is important for commissioners to cooperate with each other, and for the commission and this subcommittee to cooperate with each other. This is necessary so that the commission can focus on its stated mission and purpose and the committee can properly conduct its oversight role.
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As you know, the United States Commission on Civil Rights was established in 1957 as a result of the Civil Rights Act. It is supposed to be an independent, bipartisan fact-finding agency within the executive branch. Its two main goals are to investigate claims of voting rights violations and studying and disseminating information on civil rights laws and policies.
The commission has eight part-time commissioners and a staff director that oversees civil servants that run the day-to-day operations. Of the eight commissioners, four are appointed by the President of the United States, two by the Speaker of the House and two by the President pro tempore of the Senate. Commissioners serve six-year terms and the President may remove a commissioner for ''neglect of duty'' or ''malfeasance in office.''
In 1996, in preparation for the commission's reauthorization and because of complaints of mismanagement, the General Accounting Office (GAO) was instructed by the House Judiciary Subcommittee on the Constitution to conduct a review of the civil rights agency. The GAO was asked to provide information on the commission's management of projects during fiscal years 1993 through 1996 and its process for disseminating project reports to the public.
In July of 1997, even though the GAO focused its review on the management of individual projects, it found much broader management problems at the commission. GAO found the agency in disarray, with limited awareness of how its resources were used. For example, GAO discovered:
Agency policies and procedures were unclear and it had no documented organization structure available to the public that described its procedures or program processes;
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Key records, which provided documentation about its operations and project management, were misplaced, lost or nonexistent;
Commission officials could not provide the amount or percentage of the budget used by various offices or functions;
Management controls over operations were weak and did not ensure that statutory deadline responsibilities or program objectives were being met;
Projects appeared to account for only about 10 percent of appropriations, even though these projects addressed a number of civil rights issues, and projects were poorly managed and took years to complete;
Project management guidancethe Administrative Manualwas out of date and largely ignored; and
Three different offices disseminated project reports, but a lack of coordination among the offices created a high risk of duplicative work.
The GAO concluded that the commission and its operations lacked order, control, and coordination. It found that management was unaware of how federal fundstaxpayer hard-earned dollarswere being used. It further concluded that these deficiencies made the commission vulnerable to ''misuse of its resources'' and that a ''lack of attention to basic requirements applying to all federal agencies, such as up-to-date descriptions of operations and internal guidance for employees, reflects poorly on the overall management of the commission.''
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The GAO recommended that the commission develop and document policies and procedures that assign responsibility for management functions to the staff director and other commission officials and provide mechanisms for holding those people accountable for properly managing the day-to-day functions of the agency.
Unfortunately, recent press reports indicate that perhaps the agency is still having serious management problems. An article in Time discussed how its hotline for reporting hate crimes or discrimination in the wake of September 11 ''began as a joke and ended as a potential tragedy.''
As I understand it, a hotline already existed but instead of using that one, the commission created a new one. Obviously the staff didn't do a thorough check to see if it would work properly. The article points out how the initial press release listed the wrong 800 number, sending callers not to the commission but to a love connection service.
Even more disturbing, once the calls did come in, according to a letter from the Department of Justice (DOJ) Assistant Attorney General Ralph Boyd, the commission did not forward the information to DOJ. This made it impossible for DOJ to follow-up and investigate the complaints. Frankly, a hate crime is a crime and not just a civil rights issue. All crimes need to be followed up by the appropriate law enforcement authorities.
Furthermore, we were disappointed with Chairwoman Mary Frances Berry's remarks at an October 12 commission meeting concerning the botched hotline. She said, ''People around the country have expressed their gratitude, so I think we ought to be proud that we're doing this rather than worrying about whether it's helping anybody.''
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The Washington Post has also criticized the agency, most recently on February 11 of this year. It said the commission has become nothing more than a partisan battleground.
For example, instead of issuing highly politicized and controversial reports, such as the one on the Florida election that contributed little to the debate on civil rights, the Post suggested that the commission might examine how various counter-terrorism policies are affecting Arab-Americans and what alternatives might mitigate that effect. The Post also said the commission might review how alternatives to university affirmative action programs have worked. Yet, the Post stated, ''the commission's forays in these areas have been unimpressive.'' The Post noted that the only function of the commission is ''to inform and elevate the debate. If it cannot do this, it is not worth having. It is certainly not worth spending $9 million of public money each year to inflame passions further.''
CAGW is concerned about the recent reports concerning the commission's $135,000 in payments in 2000 to the public relations firm of McKinney and McDowell, while the agency still maintains its own public affairs office that pays employees at a total of $208,537 a year. According to a purchase order, senior staff at McKinney receive $200 an hour, while associate staff receive $150 an hour for their services. Yet, as we understand it, there is still no director in the commission's public affairs office in spite of the fact that several eligible applicants applied for the position, and the deputy director recently left.
We are also disturbed about the change in the contract between the commission and McKinney. The original contract called for McKinney to respond and represent the commission, but it was later amended so McKinney's services would only respond to the chairwoman. Certainly, while the chairwoman has the right to speak for the commission, all commissioners should be available to the media. In addition, commissioners sometimes do not receive copies of press releases until days or weeks after they are issued. This is inexcusable.
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The commission's staff director has argued that the agreement for McKinney is for contracted services, not consulting services, and therefore the commission's $50,000 limit on consulting services would not be applicable. Regardless of characterization, it is highly unusual for a federal agency to hire a private firm to handle their public relations. When it is done, it is usually for a special project that has a limited life span.
Other agencies do not do this on a regular basis. In a recent Scripps Howard column, public affairs directors in other agencies were asked about hiring outside assistance. Dave Grinberg, a spokesman at the Equal Employment Opportunity Commission said, ''We're a small agency. We have a small budget, and we don't have the money to throw around like that.'' Timothy McGrath, staff director of the U.S. Sentencing Commission, said his agency appropriations do not allow him to hire public-relations consultants, and Claudia Bourne Farrell, a spokesperson for the Federal Trade Commission, stated her agency does all their press work: ''We do all of it ourselves. We take the bullets like the men we are.''
Hiring a private firm such as the Civil Rights Commission has done is an expensive proposition and appears to be a waste of tax dollars. Two full-time government public affairs employees could be provided for a full year for the sum of $135,000. It is also our understanding that calls from the public affairs office are now being directly routed to the staff director's office. One purpose of a public affairs office is to screen calls, provide whatever information they can, and only pass on the calls that require the director's input. To do otherwise is a sign of poor management and wasted resources.
CAGW has other concerns regarding the commission's management structure and its ability to provide key records. CAGW has been made aware that some commissioners felt the need last year to file Freedom of Information (FOIA) requests to obtain documents and computer disks concerning the commission's report on the Florida election. On attempting to access these documents, questions were raised about the guidelines and the relationship between individual commissioners, the chairwoman and the staff director. Whatever the guidelines are or should be, sitting commissioners should not have to feel the need to file a FOIA request to obtain information on any activities or documents within the commission.
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Regarding how this commission is being managed, there are disputes among the commissioners and between this subcommittee and the commission. The commission may be independent, but that doesn't mean it can be unaccountable. The president's budget calls for accountability and the taxpayers demand it.
It is our understanding that there has been a series of letters between the commission and this subcommittee. There are questions and disputes over whom said what and whether progress has been made since the last GAO audit. The best way to solve this problem is for the GAO to conduct another impartial audit of the commission to see if its original recommendations have been implemented and to determine whether there are other management or personnel issues that need to be addressed.
For example, we suggest the GAO discover if:
The commission has updated its agency policies, procedures and organizational structure and whether such information is available to the public;
The commission can provide key records on its operations and management in a timely manner to Congress, the commissioners or the public;
The commission knows how its budget is spent and in what departments;
The commission has an updated Administrative Manual and whether it is kept current;
Page 92 PREV PAGE TOP OF DOC Projects are better managed and completed in a timely manner, as well as their costs;
The commissioners are aware of ongoing projects, including their costs, time frames, staff involved and when the reports will be completed;
The commission has been able to better coordinate dissemination of their reports; and
The commission works closely with civil rights offices that are located in all federal agencies, as well as whether this work is redundant.
It is our understanding that the commission has asked for a 66 percent budget increase. At a time when all federal expenditures are being prioritized to meet the country's need to win the war on terrorism, we believe this should not be granted. In addition, no increase in the budget should be appropriated until another investigation by the GAO is undertaken. It is important to see whether the commission has implemented the recommendations the GAO made in 1997 and what needs to be done to address any new management inadequacies.
The U.S. Commission on Civil Rights' past history is rich and purposeful. But, no matter how large or small an agency, no matter its mission, taxpayers expect their money to be spent in an efficient and orderly manner with timely and tangible results from that investment. While the chairwoman talks about accountability to the commission's constituents, the commission must also be accountable to taxpayers.
Mr. CHABOT. Thank you very much.
Page 93 PREV PAGE TOP OF DOC I'd like to thank all the witnesses for keeping relatively close to the 5-minute limit.
And I'll recognize myself for 5 minutes to begin the questioning.
Mr. Jin, in your written statement, you assert that, and I quote, ''sometimes philosophical differences get translated into other areas, such as management issues,'' unquote. I think I understand what you're saying. I believe you're saying that, for example, you declined to respond to Commissioner Thernstrom's memo requesting information, to which she is legitimately entitled, because of philosophical disagreements. You're saying that you deny commissioners the opportunity to have witnesses with views contrary to the majority's, because of philosophical differences, and not only can minority views not win, they can't even be heard. You're saying that commissioners are denied access to the staff who work for the commission because of philosophical differences.
Yes, there are philosophical differences, but commissioners should not be deprived of the full opportunity to carry out the responsibilities of their offices by management practices that have the effect of keeping them in the dark about the work that the commission is supposed to be performing.
It comes down to this: Will you respond to memos, and will you give advance notice of hearing topics and witnesses, and will you allow staff to discuss their work with commissioners, will you permit witnesses suggested by the minority commissioners to be heard? What are you and the agency going to dothe commission to do to stop depriving minority commissioners the basic tools to participate fully in the work of the commission?
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Would you please respond?
Mr. JIN. With pleasure, Mr. Chairman.
First of all, with due respect, I do disagree with your characterization as to what I meant.
I think it's very important to understand the rules and procedures that govern the commission. The commission is overseen by eight commissioners who are all part-time. That includes the Chair; everybody is part-time. A full-time staff director is hired by majority vote of the commissioners after being nominated by the President to be the day-to-day manager of the commission.
Under the rules of the commission, it is the staff director who is responsible for the products once the decision is made to go ahead with a project. The commissioners establish the agenda, establishes the policy, and the staff director moves forward.
So when we're talking about access to staff, for exampleand this is just an example; I think there were a number of questions that werecomments that were made, both by the chairman as well as by Commissioner Thernstrom, that fall into this category.
That is not envisioned or permitted, because commissioners are envisioned under the rules to decide policy and decide the agenda, and the staff director is to move forward. It does not envision or allow for commissioners to be involved in the day-to-day projects.
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And if any commissioner disagrees with that, they can try to take it up with the commission and change that.
So when I act the way I do in terms of access, in terms of a number of the other things, it is to comply with the decisions of the commissioners as a body. I work for the commissioners a body; I don't work for any individual commissioner.
So there are times when any one commissioner might ask me to something, and if that's not the will of the commissioners as a body, then I'm not really allowed to do it.
In terms of answering Commissioner Thernstrom's memos and so forth, we do answer her memos. We do answer her. She, I know, would like to answer in writing. We often don't answer in writing. We often answer verbally, from my special assistant to her special assistant. And this, again, is in accordance with the rules that have been set up by the commission. It's been discussed in the commission meetings. It's been decided at commission meetings.
So I'm just trying to follow the rules as set up by the commission. That is my responsibility and my obligation.
Mr. CHABOT. I've got limited time, so I thank you for your response.
I now turn to Commissioner Thernstrom. Commissioner Thernstrom, you've heard his responses. And I'd also like to refer to your opening statement, in which you said, and I again quote: On the road to racial equality, there is still much to do, and the commission can play an important role in theory. In practice, however, you had some other comments to make.
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I've got, as I say, limited time. Would you respond to that? And could you elaborate a bit on while you feel that the commission at this point is an agency in disarray, as it's been described?
Ms. THERNSTROM. Well, first let me say, I'm inI think that my longthe long testimony that I'll be submitting spells out within a very detailed record the disarray in the agency. And, of course, I did speak to that a bit.
But let me say a couple of things. One, on the question of the commission, yes, it can still play a constructive role.
I deeply resent Congressman Nadler's implication that I as a Republican am somehow anti-civil rights.
Mr. NADLER. Excuse me, I wasn't referring to you. I was referring to the party as a whole.
Ms. THERNSTROM. Well, I amI am a Republican.
Mr. SMITH. That's worse. [Laughter.]
Ms. THERNSTROM. Yes.
Mr. CHABOT. He wasn't just referring to you. He was referring to all of us. [Laughter.]
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Ms. THERNSTROM. Well, okay
Mr. CHABOT. So that's not as bad, yes.
Mr. NADLER. Not to any individual member of the party.
Ms. THERNSTROM. Oh, I see. That's not as bad.
I mean, nobody upstages me in this country as more committed to civil rights.
And, indeed, I am in the course of finishing a book called ''Getting the Answers Right: Race, Class and Academic Achievement,'' because I am addressing the most important civil rights issue in this country, which is the racial gap in academic achievement.
As part of the failure of the commission, part of the picture of the failure of the commission, you might think about or, you know, I might talk a second about what is happening with respect to the education hearings.
We are having, once again, kind of a drive-by shooting. That is, tomorrow we have hearings on the individual disabilities education act, something I know something about, something I've written on. It's going to be three witnesses. That is no way to address the very complicated issue of special ed.
Page 98 PREV PAGE TOP OF DOC Then we've got this behind-the-doors, secret report being written on education. There is an important civil rights issue here that we could come together on. And there is no way of doing so under the present rules.
And by the way, there is a clear record, which I can submit, of memos only partially answered from me to the staff director, only partially answered or not answered at all.
And the staff director doesn't work for individual commissioners. I'm sorry. He is a CEO. I mean, does it function like Enron? He works for all of us and he
Mr. CHABOT. My time has expired.
Ms. THERNSTROM. Okay.
Mr. CHABOT. So I'm at this point I'm going to defer to the gentleman from New York for 5 minutes to ask questions.
Mr. NADLER. Thank you.
Let me direct my question to Mr. Shelton. Thousands of voters were disenfranchised in the 2000 election. Could you explain how the government of the State of Florida and the companies it hired to purge lists, and through other methodologies, accomplished this? And what impact did this have on the voting rights, in particular, of African-Americans in Florida?
Mr. SHELTON. Yes, sir. As you know, the NAACP held hearings in Florida, just four short days after the debacle of November 7th, 2000. What we found is a number of mistakes were made. I'll try to keep my remarks short.
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Mr. NADLER. I have a number of other questions for you.
Mr. SHELTON. Absolutely.
First, as we talk about the erroneous purging of voters from the rolls, what we found is that an organization or a company was hired from Texas to go through the voting rolls to find out who indeed should be purged because they were felony offenders. Even the company, as they handed over that list of voters that should be purged, said that this is incorrect. That is, there are a number of names on these rolls that would have to be double-checked; the names on the names on the rolls were done based on the first and last names of the people that were on the rolls and were not based on things like Social Security numbers, birth dates or other issues that would be much more helpful in purging.
As a result, many, many
Mr. NADLER. So those lists were not double-checked.
Mr. SHELTON. They were not double-checked.
Mr. NADLER. And they were, in fact, inaccurate by about 20 percent.
Mr. SHELTON. That's correct. That is correct.
Page 100 PREV PAGE TOP OF DOC As a matter of fact, as they were handed to Katherine Harris and other officials in the Florida State government, they realized that, indeed, they should double-check them and decided not to.
As a result, at one of the NAACP hearings, to just kind of put a face on it, an African-American Catholic priest testified before the NAACP that he had been purged from the rolls because they said he was, ''a convicted felon.'' His response was: I'm not a swearing man, but I can assure you
Mr. NADLER. Do you have anyexcuse me. Do you have any estimate as to how many people were improperly purged from the list?
Mr. SHELTON. We could only begin to estimate, sir. A very conservative estimate would put us in the tens of thousands.
Mr. NADLER. In the tens of thousands of non-felons purged as felons because of a list that was admittedly about 20 percent inaccurate
Mr. SHELTON. Yes, sir.
Mr. NADLER [continuing]. And was not double-checked.
Mr. SHELTON. Yes, sir.
Mr. NADLER. Was this brought to the attention of the government of Florida in advance of the election?
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Mr. SHELTON. Yes.
Mr. NADLER. And what did they do?
Mr. SHELTON. Nothing.
Mr. NADLER. Nothing.
Now, let me switch subjects a bit. Some people have suggested that the infamous butterfly ballots, which have caused mistakenlywhich may have caused many elderly Holocaust survivors to mistakenly vote for someone called by some people a Nazi apologist is evidence that these people are, quote, ''too stupid,'' unquote, to deserve the franchise, because they were misled by the carelessly designed butterfly ballot.
What are your thoughts about their being too stupid to deserve the franchise?
Mr. SHELTON. That's absolutely ludicrous. When the system fails, they're blaming the victims. There were so many examples of this kind of blaming of the victims throughout the State of Florida and other places throughout the country, as a matter of fact, but very specifically in Florida, suggest that in areas along those lines.
But there were also some very similar circumstances in which very modern equipment was put into place and no training was given, and the error rate actually increased as a result.
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The bottom line is you're absolutely right. To suggest that we blame those peoplethey were not preparedthey were not provided the ample opportunity to cast a vote that could be countedis absolutely ludicrous.
Mr. NADLER. The Subcommittee issued a report, which was referred to I think by Commissioner Thernstrom, on this whole debacle. The commission, I meant, not the Subcommittee.
What were your observations about that report? Did it make findingsreasonable findings and reasonable recommendations?
Mr. SHELTON. Yes, sir. As a matter of fact, it was extremely consistent with the findings of the NAACP and other entities throughout the country, including the report that was done by MIT and Cal-Berkeley.
Mr. NADLER. I have one more question for you, and then I hope I have time for one question for Commissioner Thernstrom.
Commissioner Thernstrom said that a, quote, ''corrupt process ensured a worthless result,'' unquote. Do you believe that is an apt commentary on the election in 2000 in the State of Florida?
Mr. SHELTON. No, sir. I think the results of the study that was done by the U.S. commission was extremely accurate, extremely helpful.
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Mr. NADLER. That's not what II didn't ask about the study.
I said, Commissioner Thernstrom said that a corrupt process ensured a worthless result. Do you believe that that was an applicable commentary to the conduct of the election in Florida in 2000?
Mr. SHELTON. No, sir. I do not think that her comments were helpful at all. As a matter of fact, if I'm understanding your questionI apologize if I'm not. If I'm understanding your question, what the report showed was that a number of fixes could be done to our system.
Mr. NADLER. You didn't understand my question.
Mr. SHELTON. Okay. I'm sorry.
Mr. CHABOT. I thought it was a great answer myself. [Laughter.]
Mr. NADLER. But he'syou're saying, yes, they could fix the process. Certainly, they can. They've passed legislation, which hopefully will fix it.
My question is
Ms. THERNSTROM. He agrees with you.
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Mr. NADLER [continuing]. A corrupt process ensured a worthless result; that was what she said about a commission report. Forget the commission report.
Mr. SHELTON. Yes.
Mr. NADLER. Do you think that that comment is applicable to the conduct of the election in Florida in 2000?
Mr. SHELTON. That her comment
Mr. NADLER. Yes.
Mr. SHELTON [continuing]. On the election in Florida?
Mr. NADLER. Yes.
Mr. SHELTON. I think that her comment on the election in Florida was inaccurate.
Mr. NADLER. Was inaccurate.
Mr. SHELTON. Her comment. Her comment was onI'm sorry. I apologize.
Page 105 PREV PAGE TOP OF DOC Mr. NADLER. All right. Never mind.
Mr. SHELTON. I misunderstood.
Mr. CHABOT. The gentleman's time has expired.
Mr. SHELTON. Let me
Mr. CHABOT. The record speaks for itself.
Mr. SHELTON. But let me respond to what I think you're asking. If you're asking if the report that was done by the commission
Mr. NADLER. No. Let me be very clear. I'm sorry.
I'm asking, do you think that the many flaws and disenfranchisements of thethat youor that you think have been documented properly both by the commission report, by the NAACP report, et cetera, that show, as you put it, tens of thousands of non-felons were thrown off the list, were thrown off the voting rolls because they were felons, that many people were disenfranchised, do you think that that problem was so severe that it corrupted the election process in Florida?
Mr. SHELTON. Oh, yes, sir. [Laughter.]
Thank you. Absolutely.
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Mr. NADLER. Thank you.
Mr. CHABOT. The gentleman's time has fully expired. [Laughter.]
We'll recognize the gentleman from Indiana, Mr. Hostettler, for 5 minutes.
Mr. HOSTETTLER. Thank you, Mr. Chairman.
Mr. Jin, in your statement, you talk about thewell, in your discussion earlier, you talked about the actions of the staff with regard to relationship with individual members. Several times you said the action of the staff and the action of the commission results from the will of the body of the commission.
At one pointand I thought another word was going to come out of your mouth. And at one point I think you almost said the term ''majority'' when you said that the action of the commission takes place and the action of the staff of the commission takes place as a result of the will of the majority of the commission. Is that accurate?
Mr. JIN. Well, Mr. Congressman, yes, when a majority votes, then I need to follow the majority.
Mr. HOSTETTLER. Right. And you didn't subsequently challenge any of Ms. Thernstrom's contentions with regard to the information that was made available to her in a timely fashion of their ability to have their report published. Was that a majority will of the commission, that that not take place in a timely manner?
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Mr. JIN. No, Congressman. I just couldn't respond to everything she said in one answer.
Mr. HOSTETTLER. So when you responded no
Mr. JIN. Congressman, we fullywe fully have complied with all the rules and regulations in terms of our interactions with Commissioner Thernstrom.
Mr. HOSTETTLER. The rules and regulations
Mr. JIN. In fact
Mr. HOSTETTLER [continuing]. As created by the majority of the
Mr. JIN. Well, not only by the majority, but by the rules, by statute, and anything else that's applicable.
Mr. HOSTETTLER. Right. Well, but bythe majority of the commission determines the activity of the commission and the staff.
Mr. JIN. As long as it's consistent with thewith statutes and other rules, sure.
Page 108 PREV PAGE TOP OF DOC But, Congressman, I just want to make clear that there shouldn't be an impression left here that we don't try to cooperate with individual commissioners. That's not true at all.
In fact, one thing that Commissioner Thernstrom raised was that we didn't set up meetings, you know, so she could talk to staff. My point was not that she couldn't talk to staff. My point was that, if there were circumstances in which it was appropriate for her to talk to staff, we'd be happy to have her talk to staff.
Mr. HOSTETTLER. So you as staff director are going to determine the appropriate conditions by which commissioners can talk to staff?
Mr. JIN. In accordance with the commissioners
Mr. HOSTETTLER. The majority of the commissioners' desires?
Mr. JIN. That's right. Commissioners cannot individually, just on their own, decide to talk to staff whenever they want to talk to staff. That's not in accordance with the rules.
Mr. HOSTETTLER. Is that right?
Mr. JIN. That is true. That is true.
But we have, on a number of occasions, tried to set up meetings with Commissioner Thernstrom. Once we set up a meeting with her special assistant with our staff to discuss the hotline a day after she requested. A second time, Commissioner Thernstrom might have a different memory as to what happened, but we tried to set up a meeting to talk about her dissent, and somehow it seemed like, you know, she did not show up for the meeting. A third time
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Mr. HOSTETTLER. Excuse me.
Mr. JIN. A third time, I have with me here
Mr. HOSTETTLER. I'm asking you questions.
Mr. JIN. Okay.
Mr. HOSTETTLER. If you could just respond to one of my questions.
A day after you made the request; was that the day that she requested the meeting that she could attend?
Mr. JIN. Excuse me?
Mr. HOSTETTLER. When you said that you set up the meeting the day after she requested it, did you set up the meeting the day that she said she could attend the meeting?
Mr. JIN. No. That one did take place. That was with her special assistant. It occurred the day after she requested. Her special assistant met with the staff to discuss the hotline.
Page 110 PREV PAGE TOP OF DOC Mr. HOSTETTLER. Turning to Commissioner Thernstrom, that was the day that you requested that your staffI guess my questionit's very intriguing to me that the staff determines the time by which the commissioners can talk to the staff on these very issues. And that may be in accordance with the rules of the majority will of the Commission on Civil Rights.
Mr. JIN. It's not just the majority, Congressman. It's the concept of the commission that the commissioners are part-time; they hire a full-time staff director to manage the place full-time. The commissioners set policy and set the agenda.
And so the staff director is responsible for the product. If the commissioners as a body are not satisfied with the product, then, you know, then I'm accountable.
Mr. HOSTETTLER. ''As a body,'' when you ''a body,'' does that mean unanimous consent? Unanimous consensus?
Mr. JIN. Well, something that gets lost in the discussion is thatnot only here but elsewhereis that many, many of our votes are by unanimous vote.
For example, our vote to go down to Florida was a unanimous vote. It was a bipartisan, unanimous vote. That happens a lot. It doesn't happen every time, but it happens a lot.
And so like with any other body or like with most organizations, you know, if there's not unanimous agreement, then the majority often is what dictates, what moves forward.
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Mr. HOSTETTLER. Okay. Thank you, Mr. Chairman.
Mr. CHABOT. Thank you. The gentleman's time has expired.
The gentleman from Texas, Mr. Smith, is recognized for 5 minutes.
Mr. SMITH. Thank you, Mr. Chairman. I have a couple questions for Mr. Jin, but before I address questions to him, I would like to thank you for holding this hearing and say to you that you are doing a great job of executing the responsibilityfulfilling the responsibility of the Subcommittee in having an oversight hearing. And it is our responsibility not just to look at and judge and analyze the work of a commission but also to look at the management as well, because if you don't have good management, you don't have good work.
And it strikes me, given the partisanship, given the lack of responsiveness, given questions about management, given objective, outside auditors that have found that the commission has been ineffective, that maybe we should consider doing with the Civil Rights Commission what we've decided to do as a full Committee with the Immigration and Naturalization Service and did so by a vote of 32-to-2 yesterday, and that is considering restructuring the commission so we can get back to its original purpose and so we can get back to the times when the commission enjoyed the full respect and admiration of the American people, because they conducted themselves in a bipartisan fashion.
Mr. NADLER. Would the gentleman yield for a moment?
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Mr. SMITH. I'd like to ask my question
Mr. NADLER. For one sentence. For one sentence.
Mr. SMITH [continuing]. And then, if I have time
Mr. NADLER. For one sentence, Lamar.
Mr. SMITH [continuing]. I will be happy to yield. But I'd like to finish my questions. And then I'll be happy to yield to the gentleman.
Mr. Jin, my questions go to the McKinney and Associates contract that the commission I think awarded in 2000. Is that contract still in existence?
Mr. JIN. Congressman, we entered into a series of purchase order agreements with McKinney and Associates. And we have
Mr. SMITH. Okay, do you still have an association?
Mr. JIN. We still have a purchase order agreement with them.
Mr. SMITH. Okay. And how much has been paid to McKinney and Associates since April 2000?
Page 113 PREV PAGE TOP OF DOC Mr. JIN. Thein 2001, I think we paid $125,000.
Mr. SMITH. And what's the total amount since 2000?
Mr. JIN. Since 2000, I believe it's around $185, $190,000.
Mr. SMITH. And who determines whether or not to contract with this entity? Is that done by competitive bidding or is it a decision of the staff director, meaning you? Or how is that determined?
Mr. JIN. It's done by me in consultation with the staff, in accordance with the laws and other rules.
Mr. SMITH. And so it's not done by any kind competitive system?
Mr. JIN. We sole-source this contract.
Mr. SMITH. Okay. Will youin regard to McKinney and Associatesand I don't know this to be the case, so it's just an open questiondid you know any of the principles involved personally before you awarded the contract to them?
Mr. JIN. No, I did not.
Mr. SMITH. And had no prior dealings with them at all prior?
Page 114 PREV PAGE TOP OF DOC Mr. JIN. I had no prior dealings with them.
Mr. SMITH. Okay.
Mr. JIN. And in fact, the relationship actually began shortly before I got there as staff director.
Mr. SMITH. Okay. And why was McKinney and Associates hired? Was it hired in part because you weren't able to fill a position of director of public affairs?
Mr. JIN. Yes, Mr. Congressman. I think the reason is that the Commission on Civil Rights is in the business of disseminating reports, findings, and recommendations. That's a critical part of our work; thus, we need to have expert advice on publicizing and disseminating those products, especially
Mr. SMITH. You answered my question by saying ''right.'' Have any more efforts been made to hire someone for that position since you started entering into contracts with McKinney?
Mr. JIN. Congressman, see the problem is that our staff of public affairs did not have any expertise in this area. And becausewhen I came, I made an assessment in working with McKinney and Associates and found them to be very effective. I decided that, at least at this time, it did not make sense to go out and try to hire again. Efforts had been made before I got there to hire and had been unsuccessful, apparently.
Page 115 PREV PAGE TOP OF DOC And so we could re-examine that question. That's something I reconsider on a periodic basis, because I need to make a decision as to what's the best use of resources.
Mr. SMITH. It seems to me it would certainly be more cost-effective and save the taxpayers a lot of dollars if you were to hire an individual to perform that service rather than to continue to contract with an outside group.
Mr. JIN. I disagree with that, Congressman, because when we hire McKinney and Associates, we don't just hire one person. We hire the whole firm. So if certain work required the senior partner, we can get her services. If some work didn't require that, we can hire somebody
Mr. SMITH. If that's the case, Mr. Jin, why did you even make an effort to try to fill the position by interviewing individuals if you feel like it wasn't
Mr. JIN. Well
Mr. SMITH [continuing]. It wouldn't be worthwhile?
Mr. JIN. Congressman, perhaps I wasn't clear, that actually happened before I got there, so I was not part of that initial
Mr. SMITH. So you don't intend to make any efforts to try to hire somebody to fulfill that responsibility?
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Mr. JIN. That's not correct. Like I said, I periodically re-evaluate that decision, to see what would be the best use.
But, I mean, one of the things that I think that to look at thisI mean, one of the advantages of having a contractor is that, especially when you're resources are very precarious, you can make decisions to shift resources much quicker than if you hire a staff.
The other thing is privatization is something that I think that President Bush supports strongly. I know President Clinton supported it. And I think there are a lot circulars, A76 and others, that encourages privatization when appropriate.
Mr. SMITH. Well, privatization is appropriate particularly when it saves the taxpayers dollars, and I don't think it's doing so in this particular instance.
Mr. JIN. I disagree with that, Congressman.
Mr. SMITH. Mr. Chairman, if you'll give me a little bit more time, I'd like to yield to the gentleman from New York
Mr. CHABOT. The gentleman's time has expired. I'll recognize the gentleman for an additional 3 minutes, if he has questions. And I'll do the same thing for myself.
Mr. NADLER. I just wanted about 10 seconds.
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Mr. CHABOT. You've got 3 minutes, so you can that if you'd like it.
Mr. NADLER. Thank you. I simply wanted to comment that I doubted that a proposal to restructure the Civil Rights Commission would get a 32-to-2 vote on this Committee.
Mr. SMITH. I think that's a fair statement.
Mr. NADLER. Let me, since I have this extra time, I do have oneI appreciateI do have one question for Commissioner Thernstrom.
Commissioner, you stated, I believe, that whenand certainlyI don't remember if you stated it, but it was certainly in your written statement that whenthat your dissent on something, on some report, maybe on the election report
Ms. THERNSTROM. It's the Florida report.
Mr. NADLER. On the Florida report. It was not accepted by the commission because it contained the work of a consultant, Mr. John Lott, whose services were provided at not cost to the minority.
Is it possible that that was not accepted because in fact it is the law that it is illegal to accept free services for a Government agency?
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Ms. THERNSTROM. My reading of that statutory provision was quite different. It was simply that I, as a commissioner, could not work free for the commission. That is, I have a ceiling on the number of hours I can work, and I can't contribute my services. And I think that is a fair reading of that statutory provision.
However, since there was a legaland I did consult, by the way, a number of distinguished attorneys on the question.
But, however, since there was a legal dispute, it should have been, and I suggested that I suggested that it shouldthis is what should happen, it should have been submitted to the Office of Legal Counsel of the U.S. Department of Justice for a ruling on that.
The commission refused to do that. We could have gotten a legal opinion. And I would have certainly accepted that legal opinion.
As it was, I think that it was just a fig leaf for suppressing a dissent that the conclusions of which the commission did not like.
Mr. NADLER. Let me ask
Ms. THERNSTROM. And, by the way, there were two expert witnesses, two experts, statistical experts, that helped me. Somehow the commission didn't object to the second one.
Page 119 PREV PAGE TOP OF DOC Mr. NADLER. Let me ask you, on the question, let me ask you the following.
I've always believed, and I haven't read the statute recently, but I've always been told that it's illegal for Government agencies to accept volunteer labor, includingI mean, we are told specifically, when we take office as Members of Congress, our handbookor whatever they give us, whatever they call it, the list of rules and regsthat we as Members of Congress are similarity prohibited from accepting free services from anybody, because that's part of the Federal law.
So I'm surprised to hear that that is in question
Ms. THERNSTROM. The commission
Mr. NADLER. Let me ask you this.
Ms. THERNSTROM. I'm sorry. Can I answer that?
Mr. NADLER. Hold on. Did youbecause I'm limited to 3 minutes. Let me get this is.
Did you submit yourself the question to the Department of Justice Office of Legal Counsel?
Ms. THERNSTROM. I did
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Mr. NADLER. And if not, why not?
Ms. THERNSTROM. Well, I submitted it to a number of attorneys. But, no, I can'tI did not have the power myself to submit it to the Department of Justice.
Mr. NADLER. You think he would've rejected the question?
Ms. THERNSTROM. Pardon me?
Mr. NADLER. Do you think the Office of Legal Counsel would've refused to answer the question
Ms. THERNSTROM. I assume that they would have. But
Mr. NADLER [continuing]. If you had submitted it.
Ms. THERNSTROM [continuing]. Look, there was precedent on the commission.
The commission did not hire an expert. I turned for expert advice to two experts, my husband, most importantly, and Professor Lott. There was precedent.
Mary Frances Berry, the chairman, had done exactly the same thing with a Berkeley professor, Cabeza, in 1988, and her dissent and Cabeza's report was part of the official record.
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There was precedent for exactly what I did. And I, again, I would have been glad to have this legally straightened out. But as it isI mean, if you were to read the transcript of the discussion of my dissent, there was a fit about my even looking or trying to look, given the paucity of information I could get from the statistical expert, looking at the data. The statistical expert, Alan J. Lichtman, would not do what any scholar does, which is to give me the machine-readable data and the regression output.
Mr. NADLER. I'm sorry, the what?
Mr. CHABOT. Machine-readable
Ms. THERNSTROM. The machine-readable data that he used and theand his regression outputs.
That is standard scholarly practice. I was getting e-mails from across the country from people on the political left, who agreed with your assessment of disenfranchisement in Florida, saying, ''By the way, do you happen to have Lichtman's data? Have you got it in machine-readable form?'' ''No, I'm sorry. It seems to be secret, even though the commission relied upon it in writing its report.''
Mr. CHABOT. The gentleman's time has expired.
Mr. NADLER. Excuse me? I have to ask.
Page 122 PREV PAGE TOP OF DOC Mr. Staff Director, is that true? Has all the data not been allowed to be looked at?
Ms. THERNSTROM. Oh, well, now, there'sit hasit magicallysome of it magically appeared way after I hadthe time had expired for me to respond to it.
Mr. NADLER. Then the question is, have you now looked at that and have you found that regression data wrong?
Ms. THERNSTROM. Oh, I have found many problems with it. And, in fact, I've got a response to Lichtman, which was, of course, never accepted by the commission, never published by the commission.
And by the way, in that response, Lichtman drops his assertion that the black spoilage rate was 9 times that of white. It drops to what I estimated it was, which was 3 times.
Mr. NADLER. So you did get the information
Ms. THERNSTROM. No, I got some of the information
Mr. NADLER. You did. And I might point out
Ms. THERNSTROM [continuing]. Late.
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Mr. NADLER [continuing]. That the minority on this Committee did not get your testimony until a few minutes before, until today.
Ms. THERNSTROM. That is
Mr. NADLER. We didn't have a chance to look at that.
Ms. THERNSTROM [continuing]. Not up to me.
Mr. NADLER. I understand that.
Ms. THERNSTROM. But in any case, I only got
Mr. NADLER. So I feel your pain.
Ms. THERNSTROM. I only got some of the regressions.
And by the way, some of Lichtman's work, some of his regressions, some of his statistical work, was done after the report.
Mr. NADLER. I asked the question, by the way, of Director Jin to comment on this.
Mr. JIN. Yes.
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Mr. CHABOT. I think he already answered, didn't he?
Mr. NADLER. No, no, she answered.
Mr. JIN. Just half a second, Congressman.
Mr. NADLER. He didn't.
Mr. CHABOT. I think he did.
Mr. JIN. Congressman, we provided Commissioner Thernstrom with everything that we had. What Commissioner Thernstrom wanted us to do was to ask Dr. Lichtman to create new data, and that we could not do for an individual commissioner. That's what she wanted us to do.
Mr. NADLER. And you provided it timely?
Mr. JIN. Yes, sir, we did.
The other thing I just wanted
Ms. THERNSTROM. It's not true.
Mr. JIN. I wanted to correct the record.
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Mr. NADLER. Excuse me. There's a conflict. You gave your answer; let him give his. We understand you don't agree.
Mr. JIN. I just need to correct something that Dr. Thernstrom said that's totally untrue. She said that Dr. Berry had done the same thing that she did on the dissent in terms of hiring
Mr. NADLER. Wait a minute. Let me understand what you
Mr. CHABOT. The gentleman's time has expired. The gentleman's time has
Mr. NADLER. Excuse me, we let her run over time. I want to hear his answer. I just want to make sure we understand what he's saying, and then you can run the rest of it.
Mr. CHABOT. Give you answer.
Mr. NADLER. You're saying that the material was given to her on time and that she wanted something else? Is that what you're saying?
Mr. JIN. She wanted something that didn't exist.
Page 126 PREV PAGE TOP OF DOC Mr. NADLER. Okay.
Ms. THERNSTROM. It's ridiculous.
Mr. NADLER. Finish what you were saying. You started to say that
Mr. JIN. Thank you, Congressman.
I just want the record to be clear. Whenwhat happened was back in the previous report, Dr. Berry had cited asomebody that had done a consultation for the commission. The commission had already hired the person along with a number of other people to provide their views. And so in her dissent, or in her statement, Dr. Berry and I believe another commissioner cited that work. And how that got translated for Commissioner Thernstrom into that she did the same thing, I do not know.
Mr. NADLER. Thank you very much.
Mr. CHABOT. All right, thank you.
All right, we're in our second round of questions at this point.
The gentleman from Virginia, I would allow him to ask his questions.
Mr. NADLER. It's the first round.
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Mr. CHABOT. We're in our second round. You don't have your first round after you're already starting your second round.
But I will defer to the end if you'd like to go ahead now.
Mr. SCOTT. Whatever.
Thank you, Mr. Chairman.
Mr. CHABOT. We're in our second round.
Mr. SCOTT. How much time do
Mr. CHABOT. We had 3 but we're going to give you 5 because Mr. Nadler took 8 on the 3, so go ahead. [Laughter.]
Mr. SCOTT. Thank you, Mr. Chairman.
I just had one question to the staff director. Did you receive a letter from several Members of Congress asking the commission to look into the Department of Justice Civil Rights Division on the preclearance procedure under the Voting Rights Act, specifically how they handled Virginia and Mississippi congressional redistricting cases?
Mr. JIN. Yes, Congressman, we did. And we hadwe did have a meeting with them.
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Mr. SCOTT. Are you going to hold hearings on that?
Mr. JIN. What we're doing right now is we're still having interaction with them, in terms of determining kind of what to do. I understand that theI believe that the Senate is thinking of having hearings. And so I think we were going to monitor that and determine what, if anything, we should do.
But at this point, we're just meeting to find out information, because we're still at staff level.
Mr. SCOTT. Thank you.
Jerry, did you want time?
Mr. NADLER. No, I have no questions right now.
Mr. SCOTT. Thank you. I yield back.
Ms. THERNSTROM. Tongue-tied.
Mr. CHABOT. Would the gentlelady from Texas like to ask any questions?
Ms. JACKSON LEE. Mr. Chairman, I will not take up the time of the Committee. You were very gracious and the Ranking Member was very gracious.
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Let me just get one simple question. Commissioner Thernstrom, I did not hear your testimony. Is the gist of your testimony, besides the thrust of this hearing, which a question of mismanagement, but is the thrust of your comments to suggest that the U.S. Commission on Civil Rights now undermines the opportunity for improved race relations in the United States? What is the thrust of your
Ms. THERNSTROM. Well, I mainly talked about procedural matters, the procedural disarray that I see on the commission, and the way that it functions, which I don't think is effective.
And my point is that there isthe question of process and the question of substance is inseparable and that if you don't get the process rightand it's true in the U.S. Senate, it's true in the Florida hearings, it's true wherever, you know, you lookthat if you don't get the process right, you can't get the substance right.
And, indeed, if you do get the process right and, for instance, you come out in the minority on a question of substance, if the process is right, you can always go back and revisit the substantive issues, and you have confidence in the way the conclusions were arrived at.
But the way the commission functions, the shoddy way in which the commission functions, produced and continues to produce work that does not meet my standards as a scholar and shouldn't meet your standards.
Page 130 PREV PAGE TOP OF DOC Ms. JACKSON LEE. Well, I certainly appreciate the books that you have authored and that, having come out of a academic tradition, most of us here in the United States Congress, we realize the distinction.
But you're not suggesting that you would be happier with the commission if every member was anti-affirmative action and had a conclusion that race relations were where they should be in the United States? I mean, are your suggesting that the procedure rises above the substance? Meaning the importance of the existence of the U.S. Civil Rights Commission may in fact rise above some of the procedural details that I hope can be fixed, but that the mission of the Civil Rights Commission that addresses the question of race relations, which still are in a quagmire in this country, you're not suggesting that procedures should cause elimination of this commission and/or that the commission should be of one thought and one mind, for example, that affirmative action is not relevant or does notis not necessary?
Ms. THERNSTROM. I appreciate very much that question, by the way, because it allows me to say a couple of things.
I opened my statement by saying I think the drive for racial equality in this country has a long ways to go. I would never say we have reached the end of that road. Far from it. And, therefore, I would like to see the commission play a role.
And, indeed, I agree that in the old days the commission played an extremely important role. I wrote a book on voting rights. I relied heavily on the wonderful work that laid the grounds for both the 1964 Civil Rights Act and the 1965 Voting Rights Act. Those were invaluable.
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And the commission could still do invaluable work.
I'm also not opposed to affirmative action. I am opposed to racial double-standards, racial preferences.
But I would never want a commissionand affirmative action, to me, means aggressive anti-discrimination, to me.
I would never want a commission of one point of view. I have a long history myself as being in the position of a dissenter. I was partin a minor waypart of the civil rights movement in the late '50's, early '60's. I was a very important part of the anti-war movement when Barney Frank was opposing me. We werehe was for the war. We were both graduate students at Harvard and debating these questions.
I have had a long history of dissent. And I really believe in vigorous dissent.
Ms. JACKSON LEE. Thank you.
And being fair to youI am a guest of this Committee, by the way, I'm not a Member of the Subcommittee.
But I do want to say that you then support the excellent work, and I guess I've biased my comments now, that the commission did, Dr. Berry did, on election review in Florida and the NAACP. Do you applaud that work?
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Ms. THERNSTROM. No, I don't think that the Florida was good, and I have written a very long dissent in
Ms. JACKSON LEE. First of all, I know this
Ms. THERNSTROM [continuing]. In examining it.
Ms. JACKSON LEE. This Committee will look at the procedures, certainly those of us who wear legal hats and academic hats, which you wear, are tuned to procedure. I do think, however, in the course of allegations or suggestions of mismanagement, and I'm still reviewing the documentation, I have not heardwell, dissent is appreciated. But I have not heard vast voices undermining the work that the Civil Rights Commission did on the election debacle in Florida or the NAACP.
Now, whether the t's are crossed and i's are dotted on the final report, I can tell you that today the Senate voted 99-to-1 to pass election reform, primarily or in most part based upon the documentation that they received from the commission, which I assume that you were a part of, and the NAACP.
I would only say, Mr. Chairman, so that I can be a polite nonmember, that I hope we will fix the t's and i's, but I think it begs the question of the substance and the importance of maintaining the strength of this commission, the work that it does.
And I will finish by saying I hope that you will provide a hearing to Congressman Scott on the redistricting issues, which happen to deal with one person, one vote.
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But I thank you very much, Mr. Chairman and Mr. Nadler, for your kindness.
Mr. CHABOT. I thank the gentlelady for her comments.
And I have just a few questions to wrap up the hearing.
Mr. Shelton, you had mentioned in your written statement that you felt that commission had an exemplary civil rights record. Were you aware that the Civil Rights Commission currently has five EEO complaints pending? And why does a civil rights agency have EEO complaints against it?
Mr. SHELTON. Certainly I don't know the answer to the question of internal discrimination within the agency. However, I am quite aware of the work that they've done in the areas of election reform, the work that they've done in the areas of criminal justice concerns, racial profiling and other concerns. I know the work of the U.S. Commission on Civil Rights as it addresses the issues of discrimination in our society at
Mr. CHABOT. As far as those complaints against the commission itself, you're just not aware of those.
Mr. SHELTON. I'm not aware of them.
Mr. CHABOT. Let me ask you another question. As we've said earlier, there have beenthere has been considerable media criticism of the commission from traditionally commission supporters, like the Washington Post and the New Republic and Time.com and some others. Why do you think the commission continues to get all this negative media attention? And would the NAACP pay $170,000 if it couldn't get decent press?
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Mr. SHELTON. Let me answer your first question first. I assume this is a two-part question.
Answering your first question first, I honestly don't understand why the Washington Post or any other entity would raise the kind of criticisms they are of the commission.
Mr. CHABOT. It's principally mismanagement type issues and
Mr. SHELTON. Sure. It's always
Mr. CHABOT [continuing]. Not giving information out to minority members of the commission and things of that nature. So it is a whole laundry list of things.
Mr. SHELTON. It's always fascinating to me when commissions like the U.S. Commission on Civil Rights, or even organizations like the NAACP, who are extremely effective in carrying out their primary responsibilities, when a smokescreen is oftentimes raised of internal conflict or internal issues that no one else can see except those on the inside.
It's very interesting to me that these kinds of issues would be raised, especially as we sit here on the day when the United States Senate has now passed election reform legislation. Following the House, they have passed election reform
Mr. CHABOT. Well, the purposesee, that'swe have an oversight hearing and we're not really involved in a lot oflike the election in Florida and the action on the Senate floor today, all of which may be either commendable or things which ought to be looked into.
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But we're only looking at oversight and the mismanagement.
Let me turn to Mr. Schatz for the final things that I have that I would like to bring up.
Staff Director Jin wrote to the director of the Office of Management and Budget on the NovemberNovember 28th of last year and to the Chairman and Ranking Member of the Subcommittee on the Constitution on February of this year, seeking an increase of its authorization by two-thirds, from $9 million up to $16 million.
Based on your assessment of the commission's overall mismanagement, do you believe if that increase is grantedand you talked about obviously the title of the organization you represent is Citizens Against Government Waste.
Do youin your opinion, have you seen demonstrated waste that this Committee should be concerned about?
Mr. SCHATZ. Mr. Chairman, that's one of the reasons I suggested having the General Accounting Office take another look prior to granting this increase. I realize the timing may not work. Of course, the budget gets done during the course of this year. Maybe GAO can't complete another study prior to that time.
But certainly, it's our view that things should be put on hold. The commission's budget has been flat for a number of years. It always seems around in Washington that more money will solve management problems. I think the management problems should be solved before more money goes into any agency, whether it's Defense or Veterans Department or Transportation or anywhere else.
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Asking for more money seems to be the panacea for just about anything that seems to be wrong with any agency. And we think particularly in these times when we're looking at other priorities, the President has demanded accountability in his budget, as every President does, that we should be looking very carefully at any request for increase in any agency. The Civil Rights Commission is no exception to that standard that we've tried to adhere to.
Mr. CHABOT. Okay. Thank you very much for your testimony.
I thank the members of the panel for their testimony here this afternoon.
Mr. NADLER. Mr. Chairman?
Mr. CHABOT. Your complete statements will be made a part of the record.
Mr. Nadler is recognized.
Mr. NADLER. Thank you, Mr. Chairman. I ask unanimous consent that all Members be permitted to provide additional materials for the record.
Mr. CHABOT. Without objection, that request will be granted.
Again, we thank the panel for being here this afternoon. We thank the Members for participating. And at this time, we're adjourned.
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[Whereupon, at 2:40 p.m., the Subcommittee was adjourned.]
A P P E N D I X
Statements Submitted for the Hearing Record
PREPARED STATEMENT OF THE HONORABLE STEVE CHABOT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO
The purpose of this oversight hearing is to inquire into the management practices of the United States Commission on Civil Rights. Following its inception in 1957, the Commission played an important role in investigating civil rights abuses that plagued our nation. The Commission has now reached a critical stage in its history. Over time, the Commission has been criticized by individuals on both sides of the civil rights debate. However, recently, the Commission has come under fire from all sides at the same time by sources that include the New Republic, Salon.com, and the Washington Post.
Recent press reports have criticized the Chair for engaging in a confrontation with the White House over the appointment of a new Commissioner, Peter Kirsanow. I would like to recognize Commissioner Kirsanow who is in our audience today. I am fully confident that the appeals court will defer to the President's interpretation of the appointment power that is entrusted to him and grant Commissioner Kirsanow his rightful seat on the Commission.
The decline in public confidence in the Commission has led the Subcommittee on the Constitution to conduct oversight to evaluate the Commission's operations. We are concerned about the effect of poor management practices on the quality of the Commission's work product, partisan bickering within the Commission, the apparent exclusion and disparagement of minority viewpoints and participation, and, after a review of documents recently produced to the Subcommittee, the failure to implement fully management reforms recommended by GAO five years ago.
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The 1997 GAO Report entitled ''U.S. Commission on Civil Rights: Agency Lacks Basic Management Controls'' characterized the Commission as ''an agency in disarray'' with ''broad management problems.'' Five years later, the Commission still has not updated its organizational structure to comply with FOIA. The Commission has not adequately revised Administrative Instructions to inform staff of management policies. Despite the purported use of project reports recommended by GAO to inform Commissioners of detailed project costs, staffing needs, and deadlines, Commissioners remain in the dark about these basic issues.
In April 2000, the Commission hired McKinney & Assoc., a Washington, D.C. public relations firm, while at the same time maintaining three employees in its own public affairs office. From the extensive criticism of the Commission in the press, it appears that the Commission's expenditure of $170,000 on McKinney & Assoc. has been a waste of money. The Commission, moreover, cannot explain what exactly McKinney does for the Commission.
The Commission appears to operate without consultation with Commissioners. The Commission frequently withholds meeting transcripts from Commissioners and issues letters and press releases under Commissioners' names without their approval. The Commission's recent effort to suppress a book review that favorably mentioned Commissioner Abigail Thernstrom raises questions about the basic fairness of the Commission and its ability to accept differing points of view. The Staff Director's confirmation that the Commission engages in unregulated shredding raises concerns about whether staff have received training on how to comply with the Federal Records Act.
We are concerned that the Commission fails to consider Commissioners' suggestions of witnesses for upcoming hearings and frequently withholds witness lists from Commissioners. The Commission also fails to clarify basic hearing procedures for Commissioners such as: ''What is the topic of the next hearing?'' ''Who has been asked to testify?'' and ''When does the hearing record close?''
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In June 2001, the Commission withheld statistical data used in formulating the conclusions of the Florida Report from dissenting Commissioners Thernstrom and Redenbaugh and suppressed the final version of the dissent. A preliminary report and the final report were leaked to the press before the Commission released copies to the Commissioners, Florida Governor Jeb Bush, and Florida Secretary of State Katherine Harris. The Commission made no formal leak inquiry.
More recently, the Commission disregarded OMB budget proceduresand its own budgeting processby failing to submit its budget to Commissioners for approval in June of 2001. And in October of 2001, it refused to forward discrimination complaints received on the Commission hotline to the Justice Department for investigation.
The continued mismanagement of the Commission undermines public confidence in the Commission's work. The Commission is now more a public spectacle than it is a serious fact-finding agency that informs the public about the state of civil rights in America. In view of these concerns, I look forward to hearing from our witnesses today.
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Material Submitted for the Hearing Record
Miscellaneous Documents Submitted by the Honorable Abigail Thernstrom, Commissioner, U.S. Commission on Civil Rights
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Miscellaneous Documents Submitted by Mr. Les Jin, Staff Director, U.S. Commission on Civil Rights
THE FLORIDA ELECTION REPORT:
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DISSENTING STATEMENT BY COMMISSIONER ABIGAIL THERNSTROM AND COMMISSIONER RUSSELL G. REDENBAUGH
FINAL REVISION, AUGUST 17, 2001
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 report 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 findingthat there was ''widespread disenfranchisement and denial of voting rights'' in Florida's 2000 presidential electiondoes 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.
The statistical analysis in the report is superficial and incomplete. A more sophisticated regression analysis by Dr. John Lott, an economist at Yale Law School, challenges its main findings. Dr. Lott was unable to find a consistent, statistical significant relationship between the share of voters who were African Americans and the ballot spoilage rate.
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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 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 disenfranchisement are the fertile ground in which a dangerous distrust of American political institutions thrives. By basing its conclusion on allegations that seem driven by partisan interests and that lack factual basis, the majority on the Commission has needlessly fostered public distrust, alienation and manifest cynicism. The report implicitly labels the outcome of the 2000 election as illegitimate, thereby calling into question the most fundamental basis of American democracy.
What appears to be 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 verdictlong before the staff had completed its review of the evidence.
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 in which to review and respond to the final report, in violation of established procedures and previous promises.
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Most recently, a request for basic data to which weand indeed, any member of the publicwere 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 regression output that was produced. The Commission told us that it did not existthat 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.
Even now, five weeks after our first request, we still have not received the multiple regressions and the machine-readable data that were used in them. They are the foundation upon which the Commission's report largely rests.
At the June 13 monthly Commission meeting, members of the commission staff and some commissioners argued that this document is not a proper ''dissent'' but a ''dissenting report,'' and that the commission cannot allow the preparation of a dissenting report. In a July 10 memo, the staff director stated that the Commission ''does not envision any Commissioner ''engag[ing] in a complete reanalysis of the staff's work.'' But it is obviously impossible to write a thorough dissent without reanalyzing the quantitative and other evidence upon which important claims have been based.
Perhaps no previous member of the commission has felt the need to write quite such a lengthy critique of a report endorsed by the majority. But the explanation may be that the Commission has never written an important report that so demanded elaborate critical scrutiny. In any event, it is curious that an agency devoted to the protection of minority rights should show so little respect for the freedom of expression of its own members who happen to disagree with the majority on an issue.
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Process matters. And that is why it is important to examine, with integrity, possible violations of the electoral process in Florida and other states. When the process is right, participants on another day can revisit the outcomeuse 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.
I. The statistical analysis done for the Commission by Dr. Allan Lichtman does not support the claim of disenfranchisement.
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. Dr. Lichtman's work does not establish this dramatic claim.
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(a) Disenfranchisement is not the same thing 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 ''disenfranchise'' 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.
(b) The ecological fallacy: 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. This is the problem of what is termed the ecological fallacy.
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.
(c) The failure to consider relevant explanatory variables: The Commission'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.
Page 155 PREV PAGE TOP OF DOC 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). And Dr. Lichtman knows that 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.
Although Dr. Lichtman claims to have carried out a ''more refined statistical analysis,'' neither the Commission's report nor his report to the Commission display evidence that he has successfully isolated the effect of race per se from that of other variables that are correlated with race: poverty, income, literacy, and the like. A complex model applied to the Florida data by our own expert, Dr. John Lott, enables us to explain 70 percent of the variance (three times as much as Dr. Lichtman was able to account for) without using the proportion of African Americans in each county as a variable.
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. Other variables were more important.
(d) The obvious explanation for a high number of spoiled ballots among black voters is their lower literacy rate. Dr. Lichtman offers only a perfunctory and superficial discussion of the question, and fails to provide the regression results that allegedly demonstrate that literacy was irrelevant. This claim is impossible to reconcile with the Commission's own recommendation that more ''effective programs of education for voters'' are needed to solve the problem. Moreover, the data upon which he relies are too crude to allow meaningful conclusions. They are not broken down by race, for one thing.
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(e) 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 rules of the electoral process. Impressionistic evidence suggests that disproportionate numbers of black voters fell into this category. The majority report's failure to exploreor even mentionthis factor is a serious flaw.
(f) 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, by contrast, 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 was not the causal factor at work.
Dr. Lott 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.''
(g) County-level Data v. Precinct Data: The Commission's report, as earlier noted, estimates that black ballots were nine times 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. The report ignores the fact that the county-level and precinct-level data yielded quite different results. Ballot rejection rates dropped dramatically when the precinct numbers were examined, even though comparing heavily black and heavily nonblack 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.
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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. No variables other than race and the type of voting system were even considered in this analysis.
(h) Whose Fault Was It? The majority report lays the blame for the supposed ''disenfranchisement'' of black voters at the feet of state officialsparticularly Governor Jeb Bush and Secretary of State Katherine 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 Democratthe one exception being an official with no party affiliation.
The majority report argues that much of the spoiled ballot problem was due to voting technology. But elected 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.
(i) The Exclusion of Florida's Hispanics: 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 grouppeople of Hispanic origin. The analysis in the Commission's report thus excluded more Floridians of minority background than it included.
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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 8 Commission meeting, Dr. Lichtman stated he looked at this issue only at the last minute. This is a strange and regrettable omission.
II. THE TESTIMONY OF WITNESSES FAILS TO SUPPORT THE CLAIM OF SYSTEMATIC DISENFRANCHISEMENT
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 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.''
Page 159 PREV PAGE TOP OF DOC Without question, some voters did encounter difficulties at the polls, but the evidence fails to support the claim of systematic disenfranchisement. 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 were due to bureaucratic errors, inefficiencies within the system, and/or error or confusion on the part of the voters themselves.
III. THE COMMISSION'S REPORT 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 possible 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.
Page 160 PREV PAGE TOP OF DOCIV. THE REPORT'S INTERPRETATION OF THE VOTING RIGHTS ACT DISTORTS THE LAW
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, 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 ratesfound nearly everywhere in the countrywould 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 properlyas regrettable as they areare 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 disenfranchisement.
Page 161 PREV PAGE TOP OF DOC 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 opportunityan 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. THE REPORT MISTAKENLY HOLDS FLORIDA STATE OFFICIALS RESPONSIBLE FOR THE CONDUCT OF ELECTIONS
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 once did just prior to an election; and that, in any event, registration is not always a reliable predictor for turnout.
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.
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VI. THE COMMISSION'S ANALYSIS OF THE FELON LIST IS SLANTED
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 over-inclusive, 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.
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VII. THE REPORT'S CRITICISM OF FLORIDA LAW ENFORCEMENT OFFICIALS IS UNWARRANTED
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 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:
Republican-appointed commissioners were never asked for any input in the composition of the witness list or in the drafting of the report itself. In fact, at one point, we were denied access to the witness lists altogether prior to the hearing. An outside expert with strong partisan affiliations was hired to do a statistical analysis without consultation with commissioners.
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At the hearings in Florida, the secretary of state and other Republican witnesses were treated in a manner that fell far short of the standard of fair, equal and courteous.
The majority reached and released its verdict, in the form of a ''preliminary assessment,'' long before the analysis was complete/
Florida authorities who might be defamed or degraded by the report were not given the proper time to review the parts of the report sent to themto say nothing of their right to review the report in its entirety.
Affected agencies were not given adequate time to review applicable provisions, and a draft final report was made available to the press that included no corrections or amendments on the basis of affected agency comments.
Commissioners were given only three days to read the reportone less day than three major newspapers hadbefore its approval by the Commission at the June 8 meeting. This and other aspects of the process were contrary to the schedule, and made careful, detailed feedback at the time literally impossible.
In its efforts to investigate procedural irregularities in Florida, the Commission has clearly engaged in serious procedural irregularities of its own. By consistently violating its own procedures for fair and objective fact-finding, the Commission undermines its credibility and calls into question the validity of its work.
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I. THE STATISTICAL ANALYSIS DONE FOR THE COMMISSION BY DR. ALLAN LICHTMAN DOES NOT SUPPORT THE CLAIM OF DISENFRANCHISEMENT
The most sensational ''finding'' in the majority report, and the one that received most attention in the press, is the claim that black voters in the Florida election in 2000 were allegedly 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. This charge made the headlines, but it is nothing more than a wild guesstimate
Dr. Lichtman's statistical analysis is badly flawed, strongly slanted to support preconceived conclusions that cannot withstand careful scrutiny. The assertion that votes by African Americans were nine times as likely to be rejected as those by whites, we will show in detail below, is completely unsubstantiated. Dr. Lichtman's other estimates are not much more reliable, and he fails to examine the impact of variables that were of great importance in determining the outcome.
Below we provide a broader and more sophisticated regression analysis prepared for us by an econometrician, an analysis which clashes with that provided in the majority report on virtually every important point.
Disenfranchisement is not the same as voter error.
Page 166 PREV PAGE TOP OF DOC It is important to note at the outset that the majority report's account of Dr. Lichtman's findings employs language that serves to obscure the true nature of the phenomenon under investigation. These pages are filled with references to the ''disenfranchisement'' of black voters, as if African Americans in Florida last year were faced with obstacles comparable to poll taxes, literacy tests, and other devices by which southern whites in the years before the Voting Rights Act of 1965 managed to suppress the black vote and keep political office safely in the hands of candidates committed to the preservation of white supremacy.
Black votes, we are told again and again, were ''rejected'' in vastly disproportionate numbers. ''Countless Floridians,'' the report concludes, were ''denied . . . their right to vote,'' and this ''disenfranchisement fell most harshly on the shoulders of African Americans.''(see footnote 17) In a particularly masterful bit of obfuscation, the majority report declares 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.'' This alleged fact, the reader is told, ''starts to prove the Florida election was not 'equally open to participation' by all.''(see footnote 18)
Let us be clear: According to Dr. Lichtman's data, some 180,000 Florida voters in the 2000 election, 2.9 percent of the total, turned in ballots that did not indicate a valid choice for a presidential candidate and thus could not be counted in that race. Six out of ten of these rejected ballots (59 percent) were ''overvotes''ballots that were disqualified because they indicated more than one choice for president. Another 35 percent were ''undervotes,'' ballots lacking any clear indication of which presidential candidate the voter preferred.(see footnote 19) (The other 6 percent were invalid for some other unspecified reason. Since they are ignored in the majority report, they will be here as well.)
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Hence the chief problem in Florida was voters who cast a ballot for more than one candidate for the same office, and the second most common problem was voters who registered no choice at all. Ballots were ''rejected,'' in short, because it was impossible to determine which candidateif anyvoters meant to choose for president.
Some of these overvotes and undervotes, it should be noted, may have been the result of deliberate choices on the part of voters. In fact, Chair Mary Frances Berry remarked at the hearing in Miami that she herself has sometimes ''over-voted deliberately.''
Chair Berry cannot be the only voter in the United States to make such a choice. According to the exhaustive investigation of the ballots conducted by the Miami Herald, 10 percent of all the overvotes in the state showed votes for both Bush and Gore.(see footnote 20) Some of these voters, it is reasonable to assume, were attempting to convey the message that either candidate would be equally acceptable. Some voters in Citrus County put giant X's through the names of all presidential candidates, perhaps to indicate ''none of the above.''(see footnote 21)
Similarly, some of the undervotes under discussion here must been recorded by people who could not settle on a choice for president but who turned up to register their preferences in other contests. We know from the Miami Herald's inspection of the 61,111 undervoted ballots in the state that almost half46.2 percenthad no markings at all for president.(see footnote 22) It seems reasonable to assume that many of them did not intend to register a choice among the presidential candidates, and had come to the polls to vote for other offices. According to exit polls in Miami-Dade County, 1 percent of the voters made choices for other offices, but not in the presidential race.(see footnote 23) If so, that would account for 56 percent of all the undervotes in Miami-Dade.
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If half of these unmarked ballots in Florida were produced by voters who really did not want to make a choice for president, that would reduce the number of so-called ''spoiled ballots'' in the state from 180,000 to less than 150,000. It would be interesting if we could make a similar statistical estimate of the proportion of overvoters who did it deliberately; unfortunately that is impossible.
What is clear is this: In these instances, overvoting and undervoting are not ''problems'' that require ''remedies.'' And they certainly are not evidence that anyone is being ''disenfranchised.'' They represent the actual preferences of the voters in question, and it is misleading to label them ''spoiled'' ballots at all.
The majority would have us believe that ''countless'' numbers of Floridians who were legally entitled to vote had their ballots ''spoiled.'' In fact, we are not talking about ''countless'' ballots. We are talking about 180,000 invalid ballots, minus those that did not indicate a clear presidential choice because the voter had not decided on a presidential preference. Thus the 180,000 figure, 2.9 percent of the total, is an upper bound estimate of the true figure, which is undoubtedly smaller by an unknown amount. The county-by-county figures on so-called spoiled ballots are likewise exaggerations, biased upward to an unknown amount.
Still, there are overvotes and undervotes that undoubtedly did not reflect the will of the voters. What accounts for them? The opening paragraph of the introduction to the majority report suggests that the issue is whether ''votes that were cast were properly tabulated.''(see footnote 24) What does this mean? Are we to believe African Americans cast their ballots correctly on election day, but that many of their ballots were incorrectly tabulated by the machines, or the people who conducted manual recounts in some counties? There is no evidence whatsoever to support that implication.
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Some of the 180,000 rejected ballots may have the result of machine error, of coursebut very few. Machine error, according to experts who have studied it, is rare, involving at most 1 in 250,000 votes cast.(see footnote 25) And machine error is obviously random, and thus cannot ''disenfranchise'' any population group. No one has yet shown that a VotoMatic machine can be programmed to distinguish black voters from others and to record votes by African Americans in such a way as to facilitate their rejection.
There is only one other explanation of what the Commission tendentiously describes as ''disenfranchisement.'' The problem is voter error, a term that astonishingly appears nowhere in the majority report. This is the central fact the majority report attempts to obscure. Some voters simply did not fill out their ballots according to the instructions. They failed to abide by the very elementary rule that you must vote for one and only one candidate for the office of president of the United States, and therefore their attempt to register their choice failed. Their ballots were rejected, and their votes did not count.
The Ecological Fallacy
Did African American voters in the 2000 Florida election have more difficulty completing their ballots correctly than did other citizens of the state, and hence have a higher rate of ballot rejection? Quite possibly so, but Dr. Lichtman's estimates upon which the Commission relied are open to very serious doubt. At best, they are highly exaggerated, and strong evidence (Dr. Lott's research, discussed below) suggests they are entirely wrong.
How can we figure out whether there were major racial differences in the rate of voter error or ballot spoilage in the 2000 election? We have no data whatever on the race of those individuals who cast invalid ballots. We have secret ballots in the United States, and accordingly cannot know how any individuals actually voted. Thus we cannot know with any precision how particular ethnic or racial groups voted, or at what rate their ballots were actually counted.(see footnote 26) Whatever conclusions we draw about the matter must be based on estimates that will be susceptible to error. The question is whether the analysis and interpretations offered in the majority report are at least pretty good approximations of reality. There are many reasons to doubt that they are.
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The majority report attempts to draw conclusions about this important matter by examining county-level, and to a limited extent, precinct-level data. It argues that race was the dominant factor explaining whose votes counted and whose votes were rejected. The method employed to reach that conclusion rests on the assumption that if the proportion of spoiled ballots tends to increase across counties or across precincts as the proportion of black residents in those counties increases, it must be African American voters whose ballots were disqualified. This simple methodology may seem intuitively appealingbut it is well established that it is often wrong.
Statisticians have long understood the difficulty of making such inferences due to a phenomenon that is known in the social science literature as the ''ecological fallacy.'' The classic discussion of this issue is in an article that was published half a century ago in the American Sociological Review.(see footnote 27) In that paper, W.G. Robinson reported that he had examined the correlation between the proportion of a state's population that was foreign-born and the state's literacy rate. He found, surprisingly, a positive correlation between the literacy rate and the proportion of immigrants in the population. Contrary to the conventional wisdom, the larger the foreign-born population, the higher the overall literacy rate was in a state. The correlation was .53, a bit higher than the one found by Dr. Lichtman between race and ballot spoilage rates.
Did that really prove that Americans born abroad were more literate, on the average, than those born within the United States? Robinson chose this case because he had reliable data against which to check the ecological estimate; census data were available for individuals. When Robinson analyzed it, he found that country of birth was negatively correlated with literacy; the actual figure was .11. Immigrants were actually significantly less likely than natives to be literate, despite the strong state-level correlation suggesting just the opposite.
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The state-by-state correlation gave a completely false picture, because it happened that the states with highly literate populations were also more developed economically and attracted more immigrants because jobs were available there. New York, for example, was more literate than Arkansas. It also had a higher fraction of immigrants in its population, but not enough to pull the state average literacy rate down very much.
A more recent example derives from the work of an eminent mathematical statistician at the University of California at Berkeley, David A. Freedman.(see footnote 28) Using data from the 1995 Current Population Survey, Freedman found that the correlation between the proportion of immigrants in the population of the 50 states and the proportion of families with incomes over $50,000 in 1994 was .52. Foreign-born Americans, judging from this ecological correlation, were considerably more affluent than their native-born neighbors. But the evidence also allowed Freedman to look at incomes on the individual level. When you do that, it turns out that in the nation as a whole, 35 percent of native-born American families were in the $50,000 and over income bracketbut only 28 percent of immigrant families were. The true correlation between being foreign-born and having a high family income was not the .52 estimated from state-level data; it was instead a mildly negative correlation of 0.05.
In this instance, too, estimates based on ecological correlations were not just a bit off, a little imprecise but still close enough to the truth for most purposes. They were way off the mark, and indeed had falsely transformed relationships that were actually negative into positive ones.
The problem of the ecological fallacy afflicts all of the statistical analyses Dr. Lichtman did for the majority report. We must remember that counties do not vote. Precincts do not vote. Only individuals vote. 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.
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In his appearance before the June 8, 2001 meeting of the Commission on Civil Rights, Dr. Lichtman sounded a note of caution about his findings. He declared that a correlation does not ''by itself prove'' that there were ''disparate rates'' at which ballots by African Americans and ''non-African Americans'' were rejected.(see footnote 29) That is certainly true. But he went on to claim that the ''more advanced statistical procedures'' he employed could reliably do so. Unfortunately, that is not true. The use of ecological regression techniques does not solve the problem of the ecological fallacy, because it depends upon exactly the same aggregated data as simple correlational analysis, and makes the same, often incorrect, ''constancy assumption.'' It assumes that there is no relationship between the composition of geographical areas and the relationship in question, when in fact there often is.
If the information utilized in an analysis is based on averages for geographical units, whether they are counties or precincts, the results will necessarily be imprecise and they may be just plain wrong, as in the example of immigrant literacy levels given above. When David Freedman did an ecological regression of state-level data to assess the relationship between immigration and family income, he found that it estimated that fully 85 percent of foreign-born American families had 1994 family incomes above $50,000. But the true figure, from individual-level data, was really only 28 percent.(see footnote 30) Ecological regression, in this case, yielded results that were wildly mistaken. In another paper, Freedman provided a similar critique of ecological regression estimates of political behavior specifically, in instances in which individual-level data happened to be available, and he found ecological regression estimates to have been highly unreliable.(see footnote 31)
Page 173 PREV PAGE TOP OF DOC In sum, inferences about individual behavior on the basis of the average distribution of some characteristic across geographical units are sometimes wildly inaccurate. They must be examined with great caution and skepticism. The majority report does not display the necessary caution about what the facts reveal. A more searching analysis, summarized below and spelled out in Appendix I, demonstrates how misleading Dr. Lichtman's findings are.
The Commission's Failure to Analyze Factors Other Than Race
Was race itself a decisive factor in determining which voters spoiled their ballots in the 2000 election in Florida, as the majority report contends? Did the electoral system somehow work in such a way that even highly educated, politically experienced African Americans, for example, cast ballots that were somehow spoiled in some unspecified and mysterious way? The majority report claims that the answer was yes, though it provides no indication of how the process worked to produce that result. Dr. Lichtman's statistical analysis, the report claims, demonstrates that such was the case.
It does nothing of the sort, even if we set aside for the sake of argument the serious doubts most statisticians have about the accuracy of any estimate based on an ecological regression or correlation. The report begins with the simple correlation between the percentage of African American registered voters in Florida's counties and the percentage of spoiled ballots. That correlation is .50.(see footnote 32) Speaking in statistical shorthand, that ''explains'' 25 percent of the total variance across the counties. (It doesn't necessarily ''explain'' anything in ordinary language, we shall see later).
In other words, if you want to know why some Florida counties have a high and some a low rate of spoiled ballots, knowing their racial composition only accounts for one quarter of the difference.
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Social scientists know that a simple correlation of about .5 between two variables has very little meaning. 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. Since no other variables are included in this correlation, anyone who ever took Statistics 101 would realize that it is of just about zero value.
The Commission's report acknowledges the need for ''a more refined statistical analysis'' of this matter. It notes that ''an obvious question'' was ''presented'' by the findings of the simple correlation. ''Is there some other factor that better explains this disparity of ballot rejection rates?'' That certainly is a crucial question. ''The answer,'' the commission assures us, '' is no.''
The first thing to note about this key passage is that it doesn't sound like anything a sophisticated social scientist would write. To say that the issue is whether ''some other factor better explains'' a disparity implies that the analyst, like a voter casting a ballot for president, must pick one and only one candidate. The question that a ''refined statistical analysis'' would ask is not whether some of other single factor ''better explains'' something. It would ask what combination of factors best explains the phenomenon, and what causal weight may be attributed to each of these factors. Such a complex determination is precisely the purpose of multivariate regression analysis.
Furthermore, the claim that there ''no other factor . . . better explains'' the disparity in ballot rejection rates implies that many possibly relevant factors have been analyzed by Dr. Lichtman. The report states explicitly that he did a regression that ''controlled for the percentage of high school graduates and the percentage of adults in the lowest literacy category.'' It also claims that he did a similar regression analysis for counties that used punch card or optical scanning technology recorded centrally. The discussion clearly implies that various other factors were also considered, but were found to be of no significancenot worth mentioning. Appendix I of Dr. Lichtman's report gives county-level values for such variables as median income and percent living in poverty, and the reader naturally assumes that all of these were examined in his ''more refined statistical analysis.'' Perhaps they were, but since Dr. Lichtman does not provide the actual results of the regression analyses, it is impossible to tell.
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This failure to spell out necessary details is in striking contrast to a new book about the Florida election by Judge Richard Posner. Although Breaking the Deadlock is aimed at a general audience, unlike Dr. Lichtman's report, Judge Posner nonetheless includes seven tables that provide the complete details of the regression analyses that he performed to determine the sources of the undervotes and overvotes in Florida.
The ''refined statistical analysis'' provided by Dr. Lichtman, we conclude after careful study, consists of nothing more than adding two measures of education (very inadequate measures, we shall argue below) and controlling for voting technology. And we have to take Dr. Lichtman's word about even those results, since he does not supply the details. Competent social scientists can have long arguments about the interpretations of the results of a regression analysis. It is regrettable that the Civil Rights Commission expects us to take its claims on faith.
What about all the other variables that might have influenced rates of ballot spoilage? Poverty levels would be one good example. Senator McConnell asked Dr. Lichtman specifically about the possible role of poverty at the June 27 hearing of the Senate Committee on Rules and Administration, and received a completely non-responsive answer that dealt not with poverty but with education. This seemed puzzling to us. Dr. Lichtman, after all, is no absent-minded professor who has never learned to listen to questions carefully. He has served as an expert witness in federal court on more than five dozen voting rights cases. We could be wrong, but we suspect that the honest answer to the question was that Dr. Lichtman had no idea whether poverty influenced ballot spoilage rates because he had failed to include it as a variable in his regression analysis.
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The supposed refinements in Dr. Lichtman's regression analysis did not include using poverty rates as a variable, as far we can tell. Nor did they include measures of median family income, population density, proportions of first-time voters, or age structure, to name a few about which census data is readily available. So when the report declares that the answer to the question of whether other factors could have produced the ballot is ''no,'' it is deceptive. In fact, Dr. Lichtman has no idea what role ''other factors'' like poverty may have played, because he did not take them into account in his analysis.
Although the commission refusedand still refusesto provide us the machine readable data Dr. Lichtman used in his analysis, we were able to assemble the necessary material for our own analysis. We were fortunate in being able to enlist the help of a first-rate economist, Dr. John Lott of the Yale Law School. Dr. Lott agreed to evaluate the work of the commission and of Dr. Lichtman, and even to gather additional data of his own to further extend the analysis. Dr. Lott's report, with accompanying figures and tables, appears as an appendix to this statement.
Dr. Lott ran a series of regressions, varying the specifications in an effort to replicate Dr. Lichtman's results. Using all the variables reported in Appendix I in the majority report, he was unable to find a consistent, statistically significant relationship between the share of voters who were African American and the ballot spoilage rate. He found that the coefficient on the percent of voters who were black was indeed positive, but it was statistically insignificant. The chance that the relationship was real was only 50.3 percent, just about the chance of getting tails to come up on any one coin toss and far below the 95 percent significance level commonly demanded in social science.
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Furthermore, when Dr. Lott analyzed the data using a specification that implied that the share of African American voters in a county was significantly related to the level of ballot spoilage, he found that it explained hardly any of the overall variance. Removing race from the equation but leaving in all the other explanatory variables only reduced the amount of ballot spoilage explained by his regression from 73.4 percent to 69.1 percent, a mere 4.3 percentage point reduction (see Lott's Table 3 in the attachment).
Indeed, in none of the other specifications provided in Dr. Lott's Table 3 did taking racial information out of the analysis but leaving in other variables reduce by more than 3 percent the amount of variance in the spoiled ballot rate that is explained. Consequently, it simply is not true that the best indicator of whether or not a particular county had a high or low rate of ballot spoilage is its racial composition. Dr. Lichtman's claims to the contrary appear to be based on a very narrow and incomplete analysis that failed to control for hardly any variables but race.
Was Education the Problem?
Although it does not take a high level of literacy to follow the instruction, ''Vote for ONE of the following,'' or ''Fill in the box next to the name of the candidate you wish to vote for,'' it does take some reading ability. We know that some Americans today, regrettably, find it extremely difficult to understand even the simplest written instructions. And, unfortunately, this group is disproportionately black. The U.S. Department of Education's 1992 Adult Literacy Study found that 38 percent of African Americansbut only 14 percent of whitesranked in the lowest category of ''prose literacy,'' which was defined as being unable to ''make low-level inferences based on what they read and to compare or contrast information that can easily be found in [a] text.''(see footnote 33)
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Black Americans, the study found, were 2.7 times as likely as whites to have the lowest level of literacy skills. Likewise, the 1998 National Assessment of Educational Progress found that 43 percent of African American 12th-graders had reading skills that were ''Below Basic,'' as compared to just 17 percent of whites.(see footnote 34) Black students were 2.5 times as likely as whites to lack elementary reading skills. Among adults employed full-time, blacks are 4.1 times more likely than whites to be in the lowest prose literacy category.(see footnote 35)
National studies provide no data on Florida specifically. However, we know from the National Assessment of Educational Progress that black 4th- and 8th-graders in Florida (no state-level data is available for 12th-graders) are no better readers than their counterparts elsewhere. Indeed, their scores are below the national average for African Americans.(see footnote 36) No fewer than 57 percent of Florida's black 8th-graders in 1998 were Below Basic in reading, 10 points above the national average for African Americans, and 2.7 times as high as the white figure.
The majority report, though, denies that racial differences in literacy levels could be the source of the problem. It devotes only a brief paragraph to the matter, claiming that ''a multiple regression analysis that controlled for the percentage of high school graduates and the percentage of adults in the lowest literacy category failed to diminish the relationship between race and ballot rejection.''(see footnote 37)
Page 179 PREV PAGE TOP OF DOC But the regression results themselves are not provided for the critical reader to assess. When one turns to Dr. Lichtman's actual report for greater illumination, one finds nothing more than the exact language used in the commission report. This is a cavalier way to treat an issue as serious as this one. We have specifically and repeatedly asked the commission to provide us with the details of this regression analysis performed by Dr. Lichtman and the data on which it was based. But our requests have been denied.
Anyone uncomfortable with being asked to take at face value Dr. Lichtman's claim that literacy is irrelevant in explaining ballot spoilage should examine the very different analysis of the question presented in Judge Richard Posner's new study. Describing the results of his regression analysis in full detail, Judge Posner reaches the conclusion that it was ''not because black people in Florida are racially distinct, but because they are poorer and less literate on average, that they are likely to encounter greater difficulty than whites in coping with user-unfriendly voting systems.''(see footnote 38)
The claim that the incidence of ballot spoilage or voter error is unrelated to education is counter-intuitive. It is also extremely puzzling, because just a few pages later in the same chapter the report addresses possible solutions to the problem. It urges the adoption of optical scanning systems with immediate feedback, what the report terms a ''kick out'' feature to advise the voter that the ballot is not completethat it gave no vote or too many votes for president, for example.(see footnote 39) The point of a ''kick out'' system is thus to reduce voter error, although the Commission Report studiously avoids any mention of that term. Voters who are able read and follow the simple directions on the voting machine do not need any ''kick out'' system to advise them of their mistakes.
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The report then goes on to say that even this reform would not completely ''eliminate the disparity between the rates at which ballots cast by African Americans and whites are rejected.'' It estimates that it would only cut the disparity by about half. What else could be done? The Commission's answer is ''effective programs of education for voters, for election officials, and for poll workers.''(see footnote 40)
The commission majority seems to be declaring both that:
1. The lower average level of literacy among Florida's blacks has nothing to do with the allegedly higher rate of voter error by blacks; and
2. The solution to this problem is for the state of Florida to launch a huge new program designed to educate black voters on how to vote successfully, and to better instruct election officials and poll workers how to assist them.
The logic eludes us.(see footnote 41)
They have wide confidence intervalsan average of 6 percent. More important, the literacy data are not broken down by race. So they cannot tell us anything about whether the small fraction of a county's voters who failed to cast a ballot successfully were people who had difficulty reading and what the racial composition of that group might be. Remember that the highest rate of ballot spoilage in any county was 12.4 percent, and that it was below 5 percent in nearly two-thirds of the counties. So we are talking about a very small group, and one whose presence is not likely to show in county-wide averages. Palm Beach County, for example, led the state in the number of spoiled ballotsnearly 30,0000. Some 6.4 percent of all the ballots cast there were invalid. The proportion of Palm Beach residents who ranked in the bottom literacy category was 22 percent, a little below the state average of 25 percent. And the proportion who had attended college was 48 percent, again above the state average. But this does not allow us to conclude that the 6.4 percent of Palm Beach voters who failed to complete their ballots successfully were not primarily people who had difficulty in reading, comprehending, and following ballot instructions. The only reliable way of assessing the impact of literacy on ballot spoilage would be to administer the 45-minute NALS test to a representative sample of voters in each geographic unit used in the analysis.
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How Many of the Spoiled Ballots Were Cast by First-time Voters?
A closely related and complementary explanation of what the majority report claims was a racial difference in rates of ballot spoilage is that an unusually high proportion of the blacks who voted in Florida in 2000 were first-time voters. According to estimates widely cited in the press, as many as 40 percent of the African Americans who turned up at the polls in Florida in November had never voted before.
It is not clear whether this was indeed true. Recently released figures from Florida's Division of Elections indicate that 10 percent of the voters who cast a ballot in November 2000 were African American, up only slightly from the 9.5 percent in 1996.(see footnote 42) Earlier estimates that blacks accounted for as much as 15 percent of the electorate were based on exit polls conducted by the Voter News Service, yet another indication of the fallibility of estimates coming from that organization. This evidence suggests that if an unusually large number of blacks voted for the first time in 2000, their numbers must have been largely offset by a unusually large drop in the numbers of more experienced black voters turning out, which seems unlikely.
Nevertheless, Dr. Lichtman did not know what the figures only released in July of 2001 would show. He must have been aware of widespread reports in the press that a flood of inexperienced black voters came to the polls in Florida last year, and that many had problems figuring out how to cast their ballots. It is thus startling and revealing that neither the majority report nor Dr. Lichtman's report even mention this as a possible source of voter error, much less choose to investigate it. Certainly, it was a variable of possible relevance, and there were data available that could have been used in a regression analysis.
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The Missing Dimension: The Failure to Analyze Change Over Time
All of the statistical analysis developed by Dr. Lichtman concerns one moment in time-election day, November 2000. It is purely ''cross-sectional'' analysis. Most social scientists and historians recognize that the interpretation of social patterns on the basis of observations at just one point in time is fraught with peril. Relationships suggested by such analyses often do not hold up when the dimension of change over time is added. Earlier data concerning the same phenomenon should be examined. It is curious that a professional historian like Dr. Lichtman did not choose to place the 2000 election results in broader perspective by examining prior Florida elections. Surely he did not think that there was never an undervote or an overvote in Florida before Bush v. Gore.
Dr. Lott did two analyses that take the time dimension into account. First, he looked at spoilage rates by county for the 1996 and 2000 presidential races and asked how they might have been affected by changes in the racial demographics of those counties.
If the Commission's report's simple link between race and ''disenfranchisement'' were true, counties that had a sharp rise in the proportion of African American residents would be expected to also see a strong increase in rates of ballot spoilage, and those in which the black population was shrinking proportionally would be expected to have a declining rate of ballot spoilage.
But when you look at the scatter plots in Dr. Lott's report (Figures 14), the picture looks quite different. There appears to be little relationship at all between racial population change and ballot spoilage, and the one correlation that he finds 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.
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For a second analysis, Dr. Lott compiled data on voting in the 1992 and 1996 as well as 2000 presidential elections. In the set of regressions he provides in his Table 5, the ''percent of voters in different race or ethnic categories is never statistically related to ballot spoilage.'' In the analysis supplied in his Table 6, which groups voters by age and sex and well as race, he found a very complex picture, with a positive link between the size of black population in five of ten age and sex categories, but just the opposite with the other five. To explain this strange pattern would require further research. Suffice it to say here that it is hard to imagine how discrimination could work against African American females in the 3039 age bracket but in favor of black males of the same age.
Are the Precinct-level Estimates Any More Reliable? And What Do They Reveal?
Dr. Lichtman devotes considerable space to a discussion of precinct-level variations of in rates of ballot spoilage for three of the Florida's largest counties. His machine-readable data was not made available to us, regrettably, despite our repeated requests for it, and neither were we provided the details of his regression analysis. We suspect that if we had been able to reanalyze Dr. Lichtman's treatment of precinct-level data, we would have found it just as problematic as his work at the county level. But even in its absence we can offer a number of critical observations.
First, the only variables considered in this analysis are race (crudely dichotomized into the categories ''black'' and ''nonblack'') and voting technology. Dr. Lichtman has no precinct-level data at all on poverty rates, literacy levels, years of school completed, or other socioeconomic variable. So what he is really doing is the equivalent of his county-level simple correlations of race with rates of ballot spoilage, with no controls for any of the many other variables that could have influenced the pattern observed. The method is too simplistic to yield meaningful results with county-level data, and the same objection applies when it is employed with precinct-level data.
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The precinct-level analysis presented in the majority report, we have already noted, can yield mistaken and misleading results, because it also depends upon averages calculated for geographic units and yields findings tainted by the ecological fallacy. However, precincts are much smaller units than counties and are usually more homogeneous, so the results are likely to be somewhat closer to the truth than estimates based on intercounty variations. The report claims that the precinct-level analyses Dr. Lichtman conducted for Duval, Miami-Dade, and Palm Beach counties simply confirm the estimates derived from county-level data. A careful comparison of the figures, however, yields a quite different conclusion.
If the results of the precinct-level regression analysis in three counties are assumed to be accurateand we repeat the caution that they too are open to serious questionwe note that they show something quite interesting. They indicate that the racial disparity in rates of ballot rejection was apparently much smaller than it appeared from the county-level analysis.
As the table below indicates, using county-level data produces the estimate that black ballots were nine times as likely to be rejected as those cast by non-blacks. This estimate was given much play in the report and in press reports about it. But when you apply a more high-powered microscope to the election returns, and examine the evidence as reported by precinct, it turns out that this disparity was nowhere near nine to one. Instead, it ranged from 2.7 to 4.3. Thus it was from 52 percent to 70 percent lower than the statewide estimate about which so much was made in the report.
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Further, the racial disparity ratios are narrower still in the precincts Dr. Lichtman examined as ''extreme cases''precincts that were 90 percent black (or 90 percent ''non-black''). This is noteworthy. First, extreme case analysis should get us closer to the truth because it gets us closer to measuring the variable of interestin this case, race. If almost everyone in these select precincts is black, the problem of the ecological fallacy intrudes much less. That the relationship of ballot spoilage with race weakens instead of growing stronger is very telling.
In addition, extreme case analysis tends to sharpen and exaggerate estimated group differences. Blacks who live in all-black or virtually all-black neighborhoods are likely to be poorer and less educated, for example, than African Americans in precincts that have a broader racial mix, and are thereby more likely to spoil their ballots. And nonblacks who live in areas with few black neighbors may be above average in their income and educational levels, and less likely to make a mistake voting for that reason. If these factors were taken into account in the analysis, the racial difference might well vanish altogether.
Remarkably, Dr. Lichtman managed to discuss the relationship between his county-level and his precinct-level findings at the June 8, 2001 meeting of the Commission without ever calling attention to these striking (and inconvenient) facts. After mentioning the much publicized nine-to-one estimate that was so prominently featured in the report, he declared before turning to the precinct-level results that he didn't ''like dealing with ratios because they don't tell you about people.''(see footnote 43) This is a very curious statement, since the report's best sound bitethat blacks were nine times as likely as nonblacks to cast ballots that were rejectedis a statement about a ration. Dr. Lichtman's report is filled estimates of the alleged relationship between race and ballot rejection rates without reference to a shred of evidence about the experience of any individual person.
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Instead of considering the ratio of estimated ballot spoilage for black and non-black voters, Dr. Lichtman chose to look at percentage point differences. The estimated difference for the state as a whole was 12.8 points (14.41.6); for Duval it was 18.1; for Miami-Dade it was 6.6; for Palm Beach it was 10.2. Dr. Lichtman apparently averaged these when declared that the difference was ''about 13 percent. It was a ''double digit difference,'' he declared.(see footnote 44) However, Miami-Dade's 6.6 percentage points is not a ''double digit difference.'' More important, shifting the focus from ratios (9 to 1) to percentage point differences served to obscure a crucial fact: If precinct-level analysis yields better estimates than county-level estimates, the actual racial disparity in rates of ballot spoilage in Florida as a whole was far below nine to one. In fact, it was about three to one, and thus corresponded closely with the racial gap in literacy rates that we called attention to earlier.
Whose Fault Was It?
A reader of the majority report would be led to think that many tens of thousands of Floridians tried to register their vote for president and failed to have it count because Governor Jeb Bush and Secretary of State Katherine Harris didn't want their votes to count and failed in their responsibility to ensure that they did. ''State officials,'' the report declares, ''failed to fulfill their duties in a manner that would prevent this disenfranchisement.'' Chair Berry, introducing the report at the June 8 meeting of the Commission, charged that the Governor and Secretary Harris had been ''grossly derelict'' in fulfilling their responsibilities.
Page 187 PREV PAGE TOP OF DOC But which officials were responsible for the conduct of elections in Florida's constitutionally decentralized system of government? Power and responsibility were lodged almost entirely in the hands of county officials, the most important of them the 67 county supervisors of elections. If anyone was intent on suppressing the black vote or to ''disenfranchise'' anyone else, it would have required the cooperation of these local officials.
Thus, it seems natural to inquire about the political affiliations of Florida's supervisors of elections. If the U.S. Commission on Civil Rights seeks to show that the presidential election was stolen by Republicans, led by the governor and the secretary of state, it would be logical to expect that they had the greatest success in those counties in which the electoral machinery was in the hands of fellow Republicans. Conversely, it is very difficult to see any political motive that would lead Democratic local officials to try to keep the most faithful members of their party from the polls and to somehow spoil the ballots of those who did make it into the voting booth.
The report never asks this question. though it seems an interesting hypothesis to explore. The data with which to explore it are readily available. When we examined the connection between rates of ballot spoilage across counties and the political affiliation of the supervisor of elections, we found precisely the opposite of what might be expected. There was indeed a relationship between having a Republican running the county's election and the ballot spoilage rate. But it was a negative correlation of .0467.
Having a Democratic supervisor of elections was also correlated with the spoilage rateby +0.424. Dr. Lott has found that the ballot spoilage rate in counties with Democratic supervisors were three times as high as in those with Republican supervisors (see Lott's Table 3). Should we conclude that Republican local officials were far more interested than Democrats in making sure that every vote counted?
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Of the 25 Florida counties with the highest rate of vote spoilage, in how many was the election supervised by a Republican? The answer is zero. All but one of the 25 had Democratic chief election officers, and the one exception was in the hands of an official with no party affiliation.
Dr. Lott provides a fuller examination of the possible impact of having a Democratic supervisor of elections in his Table 3, and adds another related variablewhether or not the supervisor was African American. Having Democratic officials in charge increases the ballot spoilage rate substantially, and the effect is stronger still when that official is African American. (All African American supervisors of elections are Democrats.) Lott estimates that a 1 percent increase in the black share of voters in counties with Democratic election officials increases the number of spoiled ballots by a striking 135 percent.
We do not cite this as evidence that Democratic officials, for some bizarre reason, sought to disenfranchise blacks, and that black Democratic officials were even more eager to do so. That is manifestly absurd. It is worth noting for two reasons. First, it nicely illustrates the limitations of ecological correlations. Would anyone want to draw the conclusion from this correlation that the solution was to elect more Republican supervisors of elections?
Second, it has important bearing on the question of who is to blame for the large numbers of spoiled ballots in minority areas. The majority report argues that much of the problem was due to voting technologythe use of punch card machines or optical scanning methods that did not provide feedback to the voter produced a higher rate of ballot spoilage. But who decided that the voters of Gadsden County (the state's only black-majority county and the one with the highest rate of spoiled ballots) would use an optical scanning system in which votes were centrally recorded? Who decided that Palm Beach and Miami-Dade county voters would use punch card machines? Certainly it was not Jeb Bush or Katherine Harris. Nor was it Lawton Chiles. It was Democratic local officials in those heavily Democratic counties who made those choices.
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It is worth noting that after these findings were mentioned at the June 27, 2001 hearing of the Senate Committee on Rules and Administration, the Chair of the Commission on Civil Rights professed to feeling no surprise. The Commission's Report, she maintained, had noted that local as well as state officials had responsibility for the conduct of the election. The report, though, devotes far more attention to Governor Jeb Bush and Secretary of State Katherine Harris than to county supervisors of elections who have primary responsibility for election day procedures. Furthermore, there is no hint in the report that the local officials in those counties that accounted for a large majority of the spoiled ballots were Democrats who had no conceivable interest in suppressing the black vote. It is true that the party affiliation of Governor Bush and Secretary of State Harris are not mentioned either. But that hardly matters because everyone knows what party they belong to, while few are aware of the fact that Florida's electoral machinery is largely in the hands of county officials who are Democrats.
It is easy, of course, to say with hindsight that Florida should have had a uniform system of voting and a common technology for all elections. The Commission recommends that. But if Governor Bush and Republican legislators had proposed adopting such a system before the 2000 election, we can imagine the outcry from their political opponents, who would have seen such a move as an improper attempt by the governor to control election procedures. Indeed, it might well have been argued that such a decision would have had a disparate impact on minority voters, since centralizing the electoral system would have diminished the power of the Democratic local officials they had chosen to put in office. It could even have been argued that this transfer of power from officials who had the support of most minority voters would be a violation of the Voting Right Act, yet another attempt to deprive minorities of their opportunity to exercise political power!
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Furthermore, it is inappropriate to be playing the blame game when there is no evidence that anyone understood that the use of certain voting technologies might increase the rate of voter error for some groups. Those who charge that African Americans were ''disenfranchised'' in Florida have never asked why it is that no one raised this issue before the election. If punch card balloting, for instance, has a racially discriminatory effect, why had not the NAACP, the Urban League, or any other organization belonging to the Leadership Conference on Civil Rights ever uttered a peep about it before November 2000? If civil rights leaders had understood that different voting systems are conducive to different rates of voter error, and that some can serve to disadvantage groups with below-average literacy skills, why didn't they raise the issue publicly and demand electoral reforms? If they did not grasp this fact, it is hard to see why we should assume that public officials did.
The Exclusion of Hispanics
The majority report speaks repeatedly of the alleged ''exclusion'' and ''disenfranchisement'' of ''minorities'' or ''people of color.'' One section is headed ''Votes in Communities of Color Less Likely to be Counted.''(see footnote 45) But what information are we actually given about all those ''communities of color''? We were amazed and disturbed to find that the crucial statistical analysis provided in Chapter 1 is narrowly focused on just one of the state's ''communities of color''African Americans. The discussion completely ignores Florida's largest minority grouppeople of Hispanic origin.
Page 191 PREV PAGE TOP OF DOC This is revealing of the Commission's constricted vision. The 2000 Census counted 2.3 million African Americans in Florida, approximately 15 percent of the total population. But the state had 2.7 million Latinos, almost 17 percent of its population.(see footnote 46) Astonishingly, Hispanics hardly get a mention in the majority report. How many Hispanics in Miami cast ballots that were ''rejected''? An obviously important question that the authors of the report never asked. They include a few hasty references to correlations between the total minority population of the counties and the rate of ballot spoilage. But they provide no separate analysis at all of the state's largest minority group, or of any other minority group except African Americans.
Indeed, the analysis conducted by Dr. Lichtman treats not only Hispanics but Asians and Native Americans as well as if they were, in effect, part of the majority. He dichotomizes the Florida population into two groups, blacks and ''nonblacks.'' The ''nonblack'' population includes, in addition to whites, the 2.7 million Hispanics, and almost half a million other residents who listed their race as Asian American or American Indian.(see footnote 47)
A federal agency devoted to the protection of minority rights and to the inclusion of all thus seems to have an extraordinarily narrow and exclusive conception of who belongs in the minority population. In this report, the Commission majority in fact has excluded more Floridians of minority backgroundquite a lot morethan it has included. Whenever the report speaks broadly about ''minorities,'' it must be remembered that the supporting statistical analysis it provides ignores all minorities but blacks, and indeed merges most Floridians of minority background into the ''nonblack'' category along with the white majority.
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An examination of the role of race in election procedures in the Florida 2000 election that completely ignores the voting experience of Hispanics, Asian American and Native Americans cannot be considered a valid investigation. From the perspective of the majority report, anyone who is not African American is just an undifferentiated part of the vast ''nonblack'' population, which comprises 85 percent of the total.
In presenting his findings at the June 8, 2001, meeting of the Commission, Dr. Lichtman remarked that after he concluded his report he had made an effort to examine the Hispanic vote. But, as of this date, the statistical analysis in the majority report still ignores Hispanics completely and retains its simplistic dichotomy between black and ''nonblack'' Floridians. It includes in an appendix one new graph produced by Dr. Lichtman (Appendix II-F), and yet makes no comment on it. Dr. Lichtman's revised report includes only one new paragraph on the subject. In sum, any attention given to Florida's Latinos was only as an afterthought.
II. THE TESTIMONY OF WITNESSES FAILS TO SUPPORT THE CLAIM OF SYSTEMATIC DISENFRANCHISEMENT
The report includes anecdotal evidence based on the testimony of a handful of individuals. It maintains that is has made a prima facie case that many Floridians were denied the right to vote, African Americans in particular.
These claims are not supported by the testimony the Commission received in Florida. The Commission heard from a total of 26 fact witnesses, representing only 8 of Florida's 67 counties. During the post-hearing review, local election officials provided information which discredited significant portions of that testimony, but those corrections and clarifications were usually ignored in the final report.
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Nonetheless, based on witnesses' limited (and mostly, uncorroborated) accounts, the Commission majority insists that there were ''countless'' allegations involving ''countless numbers'' of Floridians who were denied the right to vote. Without verifiable and quantifiable evidence to support its predetermined conclusion that ''disenfranchisement'' took place, the report falls back on vague assertions that, ''it is impossible to determine the total number of voters who were unable to vote on election day.''
There is no question that some voters did encounter difficulties at the polls, as would doubtless be the case with any election in which six million people cast a ballot. But not a shred of evidence found by the Commission suggests any systematic attempt to deprive any voter, minority or otherwise, of his or her right to vote.
Most of the complaints the Commission heard in direct testimony at the two hearings involved individuals who arrived at the polls on election day to find that their names were not on the rolls of registered voters. The majority of these involved bureaucratic errors (a lack of proper assistance from misinformed or understaffed poll workers); inefficiencies within the system (insufficient phone lines to verify registration status); and/or error or confusion on the part of the voters themselves. Some voters did not know the location of their precinct before going to vote. Some did not bring proper identification to the polling station. Others were confused or uncertain about their right to request and receive assistance or to ask for another ballot if they believed they had made a mistake.
According to the testimony of a majority of the witnesses at the hearings, there was no ''systematic disenfranchisement or widespread discrimination'' in Florida. Although the following facts are either buried in the text of the report or omitted altogether, they are representative of the testimony the Commission heard throughout the three days of hearings:
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Florida's Attorney General testified that of the 2,600 complaints his office received on the election, 2,300 were related to the confusing butterfly ballot, and only three alleged discrimination on the basis of race.
An expert on voting rights and election law, Professor Darryl Paulson, testified that the problems in Florida were due to ''a system failure without systemic discrimination.'' He also observed that ''across the United States, there were 2.5 million votes that were not counted. And whenever you have an election system that requires 105 million people to vote essentially in a span of 12 hours, you have created a system guaranteed to have voting problems.''
Professor Paulson later added: ''If the intent of state officials was to discriminate against African-Americans, I would argue it was a dismal failure. The 1990s have . . . seen a tremendous explosion in the number of black elected officials throughout the state. We now have a record number of African-Americans in the state legislature [and on] city councils, school boards, [and] county commissions. Florida now has a competitive two-party structure that . . . in many ways makes it extremely difficult for a systematic type of discrimination to occur.''
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, well actually I guess don't have any evidence of partisan problems.''
Florida's Commissioner of Agriculture, a designee to the Elections Canvassing Commission, testified regarding the relationship of voting problems to race and ethnicity: ''I don't think it's a party issue or a racial issue. I think it's a breakdown in the system.''
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A witness from Miami-Dade County, who said she attributed the problems she encountered not to race but rather to inefficient poll workers, stated: ''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.''
Another witness from Miami-Dade claimed she could not vote because poll workers were unable to find her name on the voter list: ''In light of everything that's come out it's kind of hard for me to say whether or not it was discriminatory or whether or not it was just an inadvertent mistake.''
A witness from Broward County who alleged she was not allowed to vote by affidavit because her name was not on the list of registered voters said : ''I don't think it was a racial situation. [The poll workers] were mostly white and they were still trying to help me. [The system] was just not equipped to handle the job that we had over there a lot of people were misinformed and were not being helped. It was like a big chaotic place over there. It was not about a racial thing.''
III. THE COMMISSION'S REPORT FAILED TO DISTINGUISH BETWEEN BUREAUCRATIC PROBLEMS AND ACTUAL DISCRIMINATION
Other than the ''quantitative evidence'' of its flawed statistical analysis, the report claims that, ''the only evidence that exists is the testimony of those who have stated publicly that they were denied the right to vote and the credibility of their testimony.'' However, while the first-hand accounts of witnesses were helpful in describing election-day problems, they did not point to what the majority report calls a ''disturbing trend of disenfranchisement.''
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The majority of those witnesses who experienced problems and who came before the Commission testified that they were ultimately able to cast their vote, despite the problems they described; only a handful were not. The majority report fails to distinguish between mere inconvenience, difficulties caused by bureaucratic inefficiencies, and instances of possible discrimination. For instance, a complaint from a white male voter who got mud on his shoes on the path to his polling place is accorded the same degree of seriousness as the case of the seeing-impaired voter who requiredbut was deniedassistance 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.
For the most part, those who testified before the Commission told of problems in voting, not of being prevented from voting. The most frequent problems mentioned included the following:
1. Inability of some poll workers to confirm eligibility status
The report argues that in the last election, ''many people arrived at their polling places expecting to cast their ballots for the candidates of their choice, but many left frustrated after being denied this right.'' To support this charge, the report points to ''consistent, uncontroverted testimony regarding the persistent and pervasive inability of election poll workers to verify voter eligibility during the November 7 presidential election.''
It is true that the Commission heard several complaints about jammed phone lines that, in many cases, prevented poll workers from getting through to headquarters to confirm the eligibility of voters whose names did not appear on the rolls. Some voters found that their names had been left off the voting lists because of bureaucratic error and through no fault of their own. In a perfect world, things like this would never happen. But we know of no state in which problems of this kind are utterly unknown.
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Furthermore, many of these complaints were were from voters who failed to verify the location of their assigned precinct or polling place before going to vote on election day. Some had failed to notify their elections board of a change in address. Some neglected to bring the necessary proof of eligibility to vote, and still others did not correctly fill out their mail-in applications through ''motor voter'' registration.
Neither voters nor poll workers testified that the problems they experienced amounted to widespread disenfranchisement in Florida. In fact, according to researchers at the Miami Herald, some poll workers who struggled with insufficient phone lines admitted that they erred on the side of including, rather than excluding voters. When they were unable to get through to headquarters, they simply went ahead and let the person vote despite the questions about their status.
What we learned in Florida was that all of these factors can contribute to an overloaded communications system on election day, and that there is no substitute for greater voter awareness and better trained elections staff to handle inquiries.
2. Polling places closed early or moved without notice
The Commission received no evidence that this was more than a trivial problem. There is absolutely no evidence upon which to conclude, or even suggest, that there was a pattern of closings or movement designed to disenfranchise voters. One county supervisor testified that in some cases there are urgent reasons for moving a polling facilityfor example, one polling place had burned down on the Saturday before election day. But the public is notified of the change in all such cases. The Palm Beach County supervisor testified that, ''Nobody has come to me to give me specifics on which precinct they were turned away from so that I could do the investigation to see what exactly happened.''
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The Commission did hear testimony from one poll worker about a gated community where the gates had shut automatically at 6:15 p.m. and had to be reopened by police officers. The Palm Beach supervisor asserted that this incident was ''never reported'' to her but that it did not seem likely, given that the facility in question was located at a water works facility that would have had a government staff person there to open the gates. As the supervisor explained, ''I've heard many people tell me things and then I asked them whether they themselves experienced it and they said, no, they heard it from somebody else. And I wonder if this person [the witness about the gated community] actually experienced that themselves.''
In a letter to the General Counsel during the affected agency review, David Leahy, the Supervisor of Elections for Miami-Dade has challenged the testimony of several witnesses, including one (Felix Boyle) who insisted that his voting place had been changed without prior notice. After investigating this matter, Mr. Leahy affirmed in a letter that ''Felix Boyle stated that the polling place for Precinct #36 was in a different building than was used in the 2000 primary election. The same building was used for both elections.'' Ignoring this rebuttal altogether, the report cites Mr. Boyle's case as an an instance of ''polling places moved without notice.''
If the Commission had been truly interested in the important issue of uniform polling-place hours, it might have made more than a single, passing mention of one of the more widely-publicized problems that emerged during the last election: the announcement by all five television networks at 7:00 p.m. Eastern time that the polls in Florida had closed, when the polls in the Panhandle counties were still open for another hour. There is no way of knowing exactly how many voters were discouraged from going to the polls because of this misinformation, but a close review of the turnout figures by John Lott estimates that it likely cost George W. Bush at least 10,000 votes.(see footnote 48) The majority's lack of interest in exploring this issue suggests that its research was shaped by its preconceptions and political predispositions.
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3. Accessibility issues
Some of the most compelling and direct testimony in Florida were accounts of the problems of accessibility for disabled voters. Although the disabled voters who testified before the Commission claimed that they themselves ultimately voted, they described a range of difficulties facing the disabled on election day, including insufficient parking, inadequate provision for wheelchair access, and other difficulties involving ballots and voting technology. The barriers they described appear to constitute a long-standing problem that was not just confined to Florida or to this presidential election. It is unfortunate that the report does not examine the ongoing efforts of Florida state officials Governor Bush's ADA working group and a task force working under the Secretary of State to address these concerns.
In the same chapter on ''accessibility issues,'' the report addresses allegations that an ''overwhelming number'' of Haitian-American voters, ''many Latino voters,'' and ''many persons who were not literate'' were ''denied adequate assistance'' in casting their ballots. Here, the discussion of accessibility problems is much less clear. Much of the testimony was from advocacy group and based on second-hand, anecdotal information.
For instance, the Commission heard from a representative of a Haitian-American organization in Miami-Dade that, in addition to the problems of long lines and understaffed polling facilities, there were problems regarding a lack of bilingual ballots. However, few details were presented to help gauge the extent of this problem, and no attempt was made to properly investigate the seriousness of these alleged problems.
Page 200 PREV PAGE TOP OF DOC When the Miami-Dade County supervisor was questioned about the allegations of this witness, he referred to a county ordinance that requires the supervisor to determine which precincts have a significant Haitian American voter population and to provide bilingual ballots in those precincts. He testified that, for purposes of the November 2000 election, he determined there were 60 precincts with a significant Creole population. In addition to providing bilingual ballots, Miami-Dade also did sample ballots in English and Creole and publicized those in Haitian-American newspapers. The Miami Dade supervisor maintained that the earlier witness might have lived in a precinct that did not have a significant Haitian American population. The report makes no attempt to explore the issue more deeply.
4. ''Motor Voter'' Problems
The report asserts that ''[m]any Floridians alleged that they registered to vote through the Department of Motor Vehicles (DMV) and learned later that they were not registered. Many of these disappointed citizens filed complaints with the attorney general's office and/or the Democratic Party.'' The allegation here appears to be that Republicans in Florida somehow engineered a ''motor voter'' conspiracy. There is no evidence to support that claim. The report itself concedes that, according to the testimony of the director of the Division of Driver Licenses, problems arose because voters failed to complete their motor/voter applications correctly and/or in a timely manner. References to one such individual were stricken from the report when the affected agency's responses determined that this individual had submitted an incomplete registration form. The report does not mention the concern that the ''motor voter'' system frequently tends to err on the side of letting voters vote when in fact they are not be eligible.
Page 201 PREV PAGE TOP OF DOC5. Confusing Ballots
Although some witnesses testified about the confusion caused by the ''butterfly ballot'' in Palm Beach County, no evidence was presented that the butterfly ballot was targeted to particular groups, as the Commission originally suggested in its ''preliminary'' report of March 9. During the hearings, the Commission heard varying accounts regarding ''defective'' ballots. A rabbi from Palm Beach County testified that when he spoke with a group of 500 people within his congregation in Palm Beach County, about 20 percent complained that they had problems with the butterfly ballot (''their arrows did not line up with the holes''); the rest of the group experienced no such problems and ''simply laughed.''
The supervisor of elections for Palm Beach County later testified that, in some cases, it appeared that voters using the butterfly ballot failed to properly line up the ballot in the voting machine. The supervisor also explained that certain community groups may have mistakenly instructed voters to ''punch the second hole'' for Gore ''when he was not the second hole; he was the third hole.'' Others had been told to ''vote for Lieberman,'' but ''if they followed the line where Lieberman's name was, it punched another hole down because the President and Vice President are grouped together.''
The supervisor also testified that, ''In Palm Beach, sample ballots were sent out to all registered voters,'' and she contested earlier charges regarding defective ballots. She explained that she herself had never been alerted to or received any complaints about the actual card not fitting into the machine properly: ''The ballot cards are all purchased from the same company and they're all printed at the same time. They all come off the same press. They're all printed on the exact same size paper. You've got the candidate's name, the arrow pointing to the number and then the hole if you follow straight across then you'll hit the hole.''
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In Palm Beach County, the major problem was a ballot printed in large type for the benefit of older voters. In Duval County, a major problem was faulty instructions to voters by Democratic party workers, provided with the intention of maximizing Democratic votes lower down on the ballot. The biggest problem with ballots of all kinds was the fact that there were ten candidates on the ballot for President, compared with only three or four in previous years.
Another significant issue, which the report virtually ignores, concerns the problems of first-time voters, many of whom received faulty how-to instructions from the very groups that urged them to vote in the first place. As Isiah Rumlin, head of the NAACP in Duval County, has recently stated: ''We didn't do any voter education. We didn't know we needed to. In retrospect, we should have done a better job.''
As a result of the election-day confusion in Florida and many other states, there is a new emphasis on voter education initiatives and the role that can be played by advocacy groups and community organizations. In Broward County, for example, the new supervisor of elections, Miriam Oliphant, has launched a program to involve local churches in the efforts to better educate voters, recruit new ones, and prevent many of the difficulties that occurred during the 2000 election.
IV. THE MAJORITY REPORT'S INTERPRETATION OF THE VOTING RIGHTS ACT DISTORTS THE LAW
The majority report argues that election procedures in Florida violated the Voting Rights Act. Its interpretation bends the 1965 statute totally out of shape.
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It is absolutely correct, as the Commission report asserts, that violations of the 1965 Voting Rights Act do not need to involve intentional disenfranchisement. Section 2 of the act was amended in 1982 in an effort to circumvent the Supreme Court's decision in Bolden v. City of Mobile, 1980. Bolden, in insisting that plaintiffs in an equal protection suit demonstrate discriminatory intent, had brought the statute in conformity with Fourteenth Amendment standards in general. The amended provision allowed minority voters nationwide to challenge methods of election on grounds of discriminatory ''result.''
The concern at the time was that plaintiffs, in the wake of Bolden, would have to find a smoking gununmistakable evidence that public officials deliberately, knowingly set out to deprive minority voters of the Fourteenth and Fifteenth Amendment rights.
No witness, however, from the civil rights community argued that all voting mechanisms or procedures with a disparate impact on black or Hispanic voters would violate the law. Thus, the 1982 Senate Judiciary Committee Report, in explaining the newly amended Section 2, defined a jurisdiction in violation of the law as one in which ''racial politics dominate[d] the electoral process.'' At the 1982 Senate Hearings, a distinguished civil rights attorney testified that claims of voter dilution would rest on ''evidence that voters of a racial minority are isolated within a political system . . .'shut out,' i.e. denied access . . . [without] the opportunity to participate in the electoral process.''
If all voting procedures with a disparate impact on minority voters violated the statute, then all registration processes, in jurisdictions with black and Hispanic residents, would be legally questionable. As you know, less affluent, less educated citizens tend to register and vote at lower rates, and many of those educationally and economically disadvantaged citizens are members of those minority groups.
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Voter error is analogous to low registration rates; it is more likely to occur among the less educated and the less affluent. And 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 disenfranchisement.
The disparate impact test is actually very complicated, and always has been. For instance, a multimember district in which whites are a majority may have a disparate impact on minority voters. But as the Supreme Court has said (Whitcomb v. Chavis, 1971), the candidates supported by black voters may consistently lose, but that disparate impact upon black representation (and officeholding) is not necessarily a violation of minority voting rights. In Whitcomb, black voters were Democrats in a Republican County. It was not exclusion, but the process of party competition and the principle of majority rule that denied blacks the representation they sought. Political party, not race, determined the electoral outcome.
This same logic still runs through the complicated process by which a judicial determination is made in a section 2 Voting Rights Act case. Courts must determine whether minority voters have had ''less opportunity'' to participate in the electoral process, a finding that requires plaintiffs to meet a multifaceted test. Plaintiffs must show, for instance, that there has been ''a significant lack of responsiveness of the part of elected officials to the particularized needs of the members of the minority group''; that ''political campaigns have been characterized by overt or subtle racial appeals; and that voting is ''racially polarized.'' These are just a few items off the list of so-called ''factors'' to which courts are instructed to refer in judging the merits of a vote dilution suit; disparate impact alone never settles the ''equal opportunity'' question.
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There is another important point. 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. There is a reason why, in contrast to Section 5 in the Act, Section 2 requires a trial in a federal court. Section 5 claims can be settled in the Justice Department itself, through the process of administrative review. That is because they pose simpler questionsnamely, whether a new election procedure or practice is clearly intentionally discriminatory, or whether its impact is such as to leave minority voters worse off than they had been. A typical Section 5 question would thus be: Are newly drawn redistricting lines likely to result in fewer black officeholders than before?
Section 2, on the other hand, demands an inquiry into the complex issue of racial fairness. Adjudicating competing claims about equal electoral opportunity, as the Supreme Court has noted, requires an ''intensely local appraisal''the specific, detailed knowledge that only a court can obtain. And it demands the chance that only a trial can provide for the challenged jurisdiction to answer the charges. As the Chair herself has conceded many times, 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 whether violations of the Voting Rights Act have actually occurred, in fact it unequivocally claims to have found ''disenfranchisement,'' under the terms of the statute.
The Commission's findings are likely to inspire some people to call for federally-mandated election procedures of one sort or another. This would be a grievous error. The architects of the Constitution left matters of suffrage almost entirely in state hands, although subsequent Amendments prohibited a poll tax and denial or abridgment of the right to vote on account of race, gender, or age (after eighteen). It is true that in 1965 the Voting Rights Act broke with constitutional tradition, but that was a uniquely draconian response necessitated by the persistent and egregious infringements of basic Fifteenth Amendment rights that pervaded the Jim Crow South.
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None of the Commission's findings establish that we are confronting a national emergency in any way resembling that in 1965. Florida itself (unlike the states of the Deep South in the 1960s) has readily acknowledged the need for reforms to its voting procedures, and has already acted to remedy problems evident in the November election. State action is appropriate; federal intrusion is not.
More voter education is clearly neededa job for the states themselves, for political parties, and for other interested organizations. Donna Brazile, Al Gore's campaign manager, recently lamented the inadequate voter education in preparation for the last election. ''I take full responsibility for the lack of voter education resources that could have helped us,'' she said.(see footnote 49) While we think Ms. Brazile blames herself excessively, we do look forward to a greater effort to prepare voters to cast their ballots in the future. That effort is not mandated by the Voting Rights Act, but is certainly much to be desired.
V. THE REPORT MISTAKENLY HOLDS FLORIDA STATE OFFICIALS RESPONSIBLE FOR THE CONDUCT OF ELECTIONS
The Commission's report makes a highly politicized attack against Florida state officials. As previously noted, the report asserts that ''State officials failed to fulfill their duties in a manner that would prevent this disenfranchisement,'' and calls on the U.S. Department of Justice to ''institute formal investigations . . . to determine liability and to seek appropriate remedies.''
The charges the majority has directed against the Governor and the Secretary of State and other officials in Florida are particularly disturbing. At the Commission's interrogation in Tallahassee, the Governor was the only witness during the entire set of hearings to be denied the opportunity to make an opening statement. The report criticizes the Governor for giving too much deference to local authorities. If, instead, Governor Bush had before the election had called for a more centralized electoral system with greater power for state officials , he undoubtedly would have received criticism from the same political quarters for trying to grab power in order to manipulate the election returns to favor his brother.
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The majority report admits grudgingly that it found no ''conclusive evidence'' of a state-sponsored conspiracy to keep minorities from voting. But as several independent observers have pointed out, this is maliciously misleading phrasing, since there was in fact no evidence whatsoever of a conspiracy at all, conclusive or otherwise.
Contrary to what the majority has asserted, state and local officials have refuted in detail the serious allegations the Commission has made against them.
The testimony in Florida clearly explained and delineated the delegation of authority and decentralized responsibility for elections, under Florida's constitution. Testimony from all the public witnesses with jurisdiction over these matters provided no evidence of criminal misconduct in connection with the Florida 2000 elections. Testimony also revealed the seriousness accorded to the work of the Governor's bipartisan task force on election reform. Ignoring all of this available evidence, the Commission insists that Florida state officials are guilty of ''gross neglect'' in fulfilling their responsibilities regarding election matters. This charge in the majority report again violates fundamental concepts of due process. Not only are its conclusions not based upon evidence contained in the record of the hearings. They are in direct conflict with the testimony of the witnesses who were most knowledgeable about such matters.
The report refuses to accept a key point that emerged in testimony during the hearingsthat the elections supervisors are ''independent, constitutional officers.'' That is why, as a recent piece in The Economist points out, ''laying so much blame on the governor and secretary of state is unrealistic.''(see footnote 50) The article goes on to explain that, ''Most of the key decisions were made in Florida's 67 counties rather than in Tallahassee,'' and, ''Many of the counties with the highest number of voter errors were under Democratic control.'' Indeed, our statistical analysis reported above makes plain that the problem the Commission report focuses on was very largely confined to counties in which the electoral machinery was in Democratic hands.
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The majority report criticizes Governor Bush for having ''apparently delegated the responsibility'' for the conduct of the election. It fails to grasp that this is precisely what Florida law provides. The Secretary of State is criticized for having taken a ''limited'' role in election oversight, supposedly contradicting the position she took before the Supreme Court'' in Bush v. Gore. The majority report fails to explain, however, that Bush v. Gore (which addressed the issue of ''recounts'' and the certification of the results of the election) had nothing to do with the authority of county officials over the conduct of elections at the local level in Florida. The report glosses over the inconvenient fact that, under Florida law, Governor Bush has virtually no authority over the voting process, and the Secretary of State's role is mainly to provide non-binding advice to local officials.
The report's claim that the governor and other officials are to be blamed (and investigated) for not having taken full responsibility for all of the problems that occurred during the Florida election cannot be reconciled with the actions of Commission's own general counsel in conducting the ''affected agency'' review. On June 8, when questioned as to why state officials were given only portions of the report to review, the general counsel explained that, ''we selected the portions that are relevant . . . based on activities and responsibilities.'' The general counsel went on to say that, ''we just thought it would be a bad idea [to send the full report] because there are responsibilities and activities that don't pertain to the governor's office.'' Since the general counsel sent the governor only about 30 pages of a 200-page report, this would seem a tacit recognition that in fact the governor' responsibilities for the conduct of elections are quite limited .
Page 209 PREV PAGE TOP OF DOC It is also ironic that the Chair chose to berate Secretary Harris during the Tallahassee hearing for not having assumed more responsibility for the problems that occurred on election day. At the hearing, the Chair explained that, even though Commission on Civil Rights delegates to the staff director the authority to run the day-to-day operations of the Commission, she herselfas Chairmust assume ultimate responsibility for everything that happens at the Commission. That explanation stands in stark contrast to the statements issued by the Chair in the wake of the unauthorized leak of this report, when the Chair asserted that she was ''only one vote'' on the Commission.
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.
One expert who has studied voter turnout and participation for 25 years testified that, ''The Florida turnout was not particularly high''only 2.2 percent over 1996. Several supervisors of elections testified that the highest turnout occurred in 1992 (which had an 80 percent turnout compared to the 64 percent turnout in 2000).
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. It fails to mention the Commission also learned that, under Florida's Constitution, requesting and allocating resources is a local responsibility, one which belongs to the supervisors of elections. The county supervisors are independent, constitutional officers who make their budget requests to the Boards of county commissioners. It is up to the county commissioners to approve or reject those requests, and there is currently no process for appealing to the state government. The majority of the supervisors of elections who came before the Commission testified that they themselves did not request additional resources prior to the election but, that even if they had, such a request would have properly been directed to their county commissioners, not to the governor or to the Division of Elections.
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VI. THE COMMISSION'S ANALYSIS OF THE FELON LIST QUESTION IS SLANTED
The Majority Report suggests that one important instrument of black ''disenfranchisement'' was the so-called ''purge list,'' a list of persons who should be removed from the voting rolls because they had a felony conviction. Regrettably, the list supplied to state officials by the firm hired to do the work mistakenly included the names of some persons who had no felony convictions.
The Majority Report implies that this was no innocent mistake, but another effort to suppress the black vote. The sole piece of supporting evidence it cites is a table with data on Miami-Dade County. Blacks were racially targeted, according to the report, because they account for almost two thirds of the names of the felon list but were less than one-seventh of Florida's population.
This might seem a striking disparity. But it ignores the sad fact that African Americans are greatly over-represented in the population of persons committing feloniesin Florida and in the United States as a whole. The Majority Report never bothers to ask what the proportion is. Without demonstrating that considerably less than two-thirds of the previously convicted felons living in Miami-Dade County were African American, the racial disproportion on the felon list is completely meaningless.
It is not only meaningless but irrelevant. The vast majority of the people on the felons' list were properly listed. It was illegal for them to vote according to Florida law. The Commission may not like that law, but it is not its business to opine on the matter.
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The only possible civil rights violation here is the allegation that disproportionately large numbers of African Americans were put on the felon list falsely. Had the Commission bothered to examine its own data supplied in the report, it would have found that the truth was just the opposite of what it claims.
The table reveals that 239 for the 4,678 African Americans on the Miami-Dade felons' list objected when they were notified that they were ineligible to vote and were cleared to participate. They represented 5.1 percent of the total number of blacks on the felons list. Of the 1,264 whites on the list, 125 proved to be there by mistakewhich is 9.9 percent of the total. Thus, the error rate for whites was almost double that for blacks.
If we accept the conspiratorial view that the errors on the felons list must have been targeted so as to reduce the voting strength of some group, it was whites, not blacks, who were targeted. The error rate for Hispanics was almost as high as that for whites8.7 percent. Since the data are from Miami-Dade, with its huge Hispanic population, one might conclude that someone hoped to suppress both the the non-Hispanic white vote and the Hispanic vote.
Why was a ''purge list'' created in the first place? At the hearing in Miami, the Commission received testimony from DBT/Choicepoint, Inc., the company which provided the state with a list of individuals who might be convicted felons, registered in more than one county or even deceased. The compilation of the list was part of an anti-fraud measure enacted by the Florida legislature in the wake of Miami's 1997 mayoral election, in which at least one dead voter and a number of felons cast ballots.
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The Commission heard from DBT that approximately 3,000 to 4,000 non-felons (out of approximately 174,000 names) were mistakenly listed on this so-called ''purge'' list provided to the state. The list identified 74,900 potentially dead voters, 57,770 potential felons, and 40,472 potential duplicate registrations. Under Florida law, the supervisors of elections were required to verify the ineligible-voter list by contacting the allegedly ineligible voters. Some supervisors believe the list to be unreliable, and did not use it to remove a single voter. It is regrettable that the Commission made no effort to determine how many of the 67 supervisors of elections did or did not use the list. According to recent studies, the total number of wrongly-purged alleged felons was 1,104, including 996 convicted of crimes in other states and 108 who were not felons at all. This number contradicts the Commission's claim that ''countless'' voters were wrongly disenfranchised because of inaccuracies in the list.
Most notably, the Commission did not hear from a single witness who was prevented from voting as a result of being erroneously identified as a felon. One witness did testify that he was erroneously removed from the voter list because he had been mistaken for another individual on the felon list whose name and birth date were practically identical to his. However, he was able to convince precinct officials that there had been a clerical error, and he was allowed to vote.
In pursuing its attack on the purge list, the Commission completely ignored the bigger story. Approximately 5,600 felons voted illegally in Florida on November 7, approximately 68 percent of whom were registered Democrats. On June 8, General Counsel Hailes was asked why the report failed to address the issue of ineligible voters who cast ballots on election day. His response was: ''That's not part of the scope of our report.''
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Based on extensive research, the Miami Herald discovered that, ''among the felons who cast presidential ballots, there were ''62 robbers, 56 drug dealers, 45 killers, 16 rapists, and 7 kidnappers. At least two who voted were pictured on the state's on-line registry of sexual offenders.'' According to the Herald, the biggest problem with the felon list was not that it wrongly prevented eligible voters from voting, but rather that it ended up allowing ineligible voters to cast a ballot:
Some . . . claim that many legitimate votersof all ethnic and racial groups, but particularly blackswere illegally swept from the rolls through the state's efforts to ban felons from voting. There is no widespread evidence of that. Instead, the evidence points to just the oppositethat election officials were mostly permissive, not obstructionist, when unregistered voters presented themselves.(see footnote 51)
The Palm Beach Post conducted its own extensive research into the problems with the flawed exceptions list.(see footnote 52) The Post's findings, which corroborate the major conclusions of the Herald's investigation, include the following:
Most of the people the state prevented from voting probably were felons.
Of the 19,398 voters removed from the rolls, more than 14,600 matched a felon by name, birth date, race and gender.
Page 214 PREV PAGE TOP OF DOC More than 6,500 were convicted in counties other than where they voted, suggesting they would not have been found by local officials without the DBT list.
Many of these felons were convicted years ago, and they had no idea that they did not have their civil rights [to vote].
Many had been voting and unwittingly breaking the law for years.
The report's message is that nobody in authority did enough data verification. But the Commission itself failed to verify key arguments made in its report. The letter (submitted per the affected agency review) from Michael R. Ramage, General Counsel for the Florida Department of Law Enforcement, provides a lengthy clarification of the FDLE's role in verifying the felon status of voters whose names had been forwarded by the local supervisor. (Note that, according to Mr. Ramage's letter to Mr. Hailes, the FDLE was allowed to review only three pages of the 200-page report, despite the prominence the report gives to this controversial issue.) In his letter to General Counsel Hailes, dated June 6, 2001, Mr. Ramage maintains that the Commission's findings are ''wrong and based on erroneous assumptions,'' and places undue emphasis on ''anecdotal examples of problems.'' His letter later goes on to detail FDLE's efforts regarding verification of the ''exceptions'' list:
[I]t is important to note that during the pertinent time frame, FDLE responded effectively to nearly 5,000 voters whose names matched those of convicted felons in Florida's criminal history records. (It is not unusual for criminals when arrested to use a name, date of birth, address, social security number, etc., other than their own.). . . . A number of those who believed they had been wrongfully identified as not being able to vote were ultimately found to be incorrect. They were, in fact, not eligible to vote. Likewise, a number of those who raised a concern were ultimately found to be eligible to vote. The process worked to resolve issues. Of those voters who contacted FDLE to appeal the notice from a local supervisor of elections that they were ineligible to vote, approximately 50 percent were confirmed to be Florida convicted felons, and 50 percent were determined not to have a conviction in Florida for a felony.
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While the General Counsel on June 8 indicated that some revisions would be made to acknowledge the ''extraordinary efforts'' by the FDLE, no revision has been made in the conclusions, which are still wrong and based on erroneous assumptions. Certainly, no eligible voter should be wrongly prevented from doing so, but at the same time, election officials have a compelling interest in preventing voter fraud committed by convicted felons. The Commission majority failed to look at all the facts regarding the felon list. Instead of focusing on what it calls ''the reality'' of list maintenance, it uses anecdotes to support its call for an extensive and unwarranted investigation by the U.S. Department of Justice.
There is also the additional question of voter fraud. On June 8, the Chair explained that the report did not look at the issue of voter fraud, since ''fraud does not appear to be a major factor in the Florida election,'' and that, in any event, this was ''beyond the scope'' of the Commission's investigation. Thus, the report single-mindedly pursues only one kind of vote dilution (allegations that eligible voters were denied the tight to vote) while completely ignoring the other (allegations that ineligible voters were allowed to vote).
Only in the report's introduction is there a brief mention of Complaints of Voter Fraud, ''listed along with the Western Florida Time Zone Controversy and Absentee Military Ballots as ''other factors'' that ''could have contributed to voter disenfranchisement in Florida.'' (In other words, the main concern is with voting irregularities that could be interpreted as having a disparate impact on Democratic voters. Factors that were more likely to have had a disparate impact on Republican voters were simply shoved aside.) The report then goes on to explain that, ''while recognizing that the above factors do raise concerns of voting irregularities, the Commission did not receive many complaints or evidence during its Tallahassee and Miami hearings pertaining to how these issues created possible voter disenfranchisement in Florida.''
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This explanation is incorrect and disingenuous. . . . First of all, at the Commission's meeting of December 8, 2000, when the Commission reached its decision to conduct an investigation of the Florida election, there was lengthy discussion of the Commission's statutory responsibility to investigate ''any patterns or practice of fraud.'' Chair Berry herself explained that ''if there are people who engaged in fraud or violated the laws, we would hand them over for prosecution.'' The Chair assured Commissioners that, ''[e]very single allegation should be systematically pursued.''
Second, if the Commission ''did not receive'' evidence regarding fraud, it is because, contrary to the Chair's assurances in December, it chose not to seek any testimony on the widely-publicized allegations of fraud. Given the report's emphasis on the so-called purge list, this is an egregious omission. In Florida, there were various reports regarding thousands of ballots cast by ineligible felons and unregistered voters, fraudulent absentee ballots in nursing homes, and precincts where more ballots were cast than the number of people who were registered. That the Commission made no effort to look at these problems is unconscionable.
VII. UNWARRANTED CRITICISM OF FLORIDA LAW ENFORCEMENT
The Commission report discusses at length a motor vehicle check conducted in Leon County on election day, and portrays the police presence there as an effort to intimidate prospective black voters in the area and keep them from going to the polls. This is a wildly distorted interpretation of what actually happened.
As the chief of the Florida Highway Patrol, Colonel Charles C. Hall, testified in Tallahassee, there was one motor vehicle checkpoint, in Leon County on election day. That checkpoint was not adequately authorized and resulted in one complaint. The equipment checkpoint operation lasted about 90 minutes (between 10:00 a.m. and 11:30 a.m.) and occurred more than two miles away and on a different roadway from the nearest polling facility. Of the approximately 150 cars stopped at the checkpoint, a total of 18 citations or notices of faulty equipment were issued to 16 different individuals, 12 of whom were white. The citizen who lodged the complaint testified that she had contacted the NAACP after she returned from voting, but she refused to meet with the FHP to assist their investigation. Despite this one highly publicized incident, there has been no evidence whatsoever of police intimidation of voters.
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Writing in response to the affected agency review, the general counsel for the State of Florida's Department of Highway Safety and Motor Vehicles, Enoch J. Whitney, has supported the account given by Colonel Hall at the hearing:
Colonel Hall's testimony conclusively demonstrates that there was no intent by members of the Florida Highway Patrol to delay or prohibit any citizen from voting on Election Day. All pertinent evidence shows that in fact no one was delayed or prohibited from voting by virtue of the equipment checkpoint operation.
The Commission majority's willingness to perpetuate a gross misperception of this issue is a disservice to the public's confidence in America's electoral and law enforcement systems, and an insult to the dedicated officers of Florida's law enforcement community.
VIII. PROCEDURAL IRREGULARITIES AT THE U.S COMMISSION ON CIVIL RIGHTS
In writing this report, the Commission majority has ignored not only the rules of evidence, but the agency's own procedures for gathering evidence. The procedural issues are important to the extent they relate to the policy and politics driving this report. By pretending to investigate procedural irregularities while engaging in procedural irregularities of its own, the Commission majority undermines its credibility and diminishes the value of its work. By arguing that ''every voice must be heard'' while in fact stifling the voice of others, the Commission is guilty of hypocrisy.
Page 218 PREV PAGE TOP OF DOC Republican and Independent Commissioners were never asked if they would like to call witnesses. Hearings were completely controlled by the Chair and the General Counsel, and commissioners did not even know who the witnesses were to be at one Miami hearing; thus they could not properly prepare questions.
When the hearings failed to provide any evidence of widespread voter disenfranchisement, the Chair unilaterally approved a last-minute procurement of the services of an outside ''statistician,'' Professor Allan Lichtman. Commissioners were never asked to approve this arrangement, nor were they contacted regarding any suggestions they might have for additional or alternate experts.
At its June 8, 2001 meeting the Commission voted that Dr. Lichtman would be asked to prepare a rejoinder to any dissent that was filed, and that the dissent was not to be made available on the commission's web site until it could be accompanied by Dr. Lichtman's response. It is astonishing and unprecedented that the commission would take the position that the views of its minority members could not be circulated to the public until a rebuttal of them was prepared. Is the dissent a document that is too dangerous for the public to read unless accompanied by an immediate rebuttal? Furthermore, to date, Dr. Lichtman's rejoinder has not materialized, and it was stated at the July 13, 2001 meeting of the commission that it was not clear whether he would be writing any response to this dissenting opinion, with unclear consequences for the fate of the dissent.
At the July 13 monthly Commission meeting, members of the commission staff and some commissioners argued that this document is not a proper ''dissent,'' and that the commission should not allow its publication. One commissioner asserted that a ''two or three or five page statement'' would be an acceptable dissent, but something more than that would be out of bounds. In a July 10 memo, the staff director stated that the Commission ''does not envision any Commissioner ''engag[ing] in a complete reanalysis of the staff's work.'' But it is obviously impossible to write a thorough dissent without reanalyzing the quantitative and other evidence upon which important claims have been based.
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As a result of such objections, at its July 13, 2000 meeting the Commission majority refused to authorize the publication of our work pending further negotiation. Whether it will actually appear under the Commission's imprimatur remains an open question at this time. Astonishingly, many of the commissioners seem to believe that it is appropriate for them to dictate the form any disagreement with their views should take.
We feel fortunate to be living in a time in which technological progress renders futile the attempts of those in power to silence the expression of minority views. Any interested member of the public can already find our a full draft on our dissenting opinion on the Web, on both the Manhattan Institute and the National Review web sites. And of course it will be available in print in the published hearings of the Senate Committee on Rules and Administration. But it is nonetheless deeply troubling that a body whose mission is to explore unpopular truths would keep from public scrutiny a dissenting opinion written by two of its duly-appointed members.
1. Failure to follow statutory requirements for fair and objective proceedings
Under the Commission's regulations, all proceedings are to be conducted in a fair and objective manner. During its hearings in Florida, however, the Commission failed to ensure fair, equal and courteous treatment of witnesses. The secretary of state was treated in an insulting manner, and the governor was the only witness during the proceedings who was denied the opportunity to deliver an opening statement.
2. Conclusions issued before all of the evidence was received
Page 220 PREV PAGE TOP OF DOC The Commission reached its verdict long before it had even completed its review of the evidence. On March 9, the Chair introduced a ''preliminary assessment'' that was not shared with Commissioners beforehand and that did not provide Florida officials with an opportunity to respond to the charges against them. These procedures are sadly reminiscent of Alison in Wonderland's court of the Red Queen: ''Verdict first, trial later!''
3. Denial of ''defame and degrade'' review
Section 702.18 of the Code of Federal Regulations requires the Commission to give parties that might be defamed or degraded by its reports a chance to respond. The majority report states that ''the Commission followed its procedures by conducting a defame and degrade review.'' It fails to state that the Commission's general counsel denied the governor's request to be given the requisite 30 days, under defame and degrade, to review the report in its entirety (instead of select portions) and the requisite 20 days to submit a ''timely, verified response.'' The general counsel's explanation on June 8 was that there was ''no statement [in the report] that would constitute defame and degrade.'' In light of the Chair's statement on June 8 that the governor, the secretary of state, and other state officials were ''grossly derelict in fulfilling their responsibilities,'' the general counsel's decision appears to indicate that the Commission has been ''grossly derelict'' in its treatment of those who assist its investigations.
4. Inadequate affected agency review and consideration of affected agency comments
The report also claims that ''affected agencies were afforded an opportunity to review applicable portions.'' The Commission's project management system normally requires at least 30 days for affected agency review, yet the governor and other officials were given only 10 days to review the report, and the report was given to the press before affected parties could respond. In an interview with the New York Times, the general counsel claimed that anyone wishing to respond to the Florida report would have 20 days to do so. Few of the affected agency comments have actually been factored into the final report.
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To compound the seriousness of these procedural improprieties, the Commission handed out copies of the draft report at the June 8 meeting and posted the draft on its web site, thereby widely disseminating a version of the report that included none of the affected agency comments or any of the corrections and amendments discussed at the June 8 meeting.
Affected agency review is an essential procedure to ensure fairness and accuracy of Commission reports. Contrary to the Chair's statement on June 8, it is not a mere ''courtesy'' that is granted or denied at the whim of the Chair or the staff. In this case, the procedure was mooted by the leak to the press and the public dissemination of a preliminary, uncorrected draft.
5. No management controls for this agency in disarray
A 1997 investigation by the GAO found the Commission to be an ''agency in disarray'' and cited, in particular, the lack of communication and effective management controls regarding the Commission's projects. Pursuant to the GAO investigation, the Commission implemented its management information system to specify timelines for completion of the Commission's work product. In the case of the Florida report, however, no clear or consistent timeline has been maintained for this project and Commissioners' inquiries to both the Chair and the staff director have been routinely ignored.
For example, at the March 9 meeting, instead of taking up a status report on the project (as the agenda announced), Commissioners were asked to approve, without any advance notice at all, the Chair's own personal statement of preliminary findings. At the same meeting, the Chair advised Commissioners that, ''in April we expect to have the draft of the voting rights in Florida, the actual draft, in front of us.'' In April, however, Commissioners were given only an ''Outline of the Final Document'' and were advised that the draft report would be considered at the June 8 meeting. At no time were Commissioners advised they would be given only three days to read the report prior to the June 8 vote. The Chair dismissed any criticism in this regard, asserting that Commissioners should have known ''that we would receive it when we did receive it.''
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Instead of taking responsibility for the question of agency leaks, the Chair now proposes to legitimize the premature disclosure of Commission reports, by suggesting a change in policy for Commission reports. Specifically, the Chair proposes, for future reports, ''that we release the draft of the report publicly as soon as it's available without waiting [until] even when we give it to the Commissioners.'' While releasing drafts of a report as they are written makes much sense, since it would allow commissioners to discuss the findings with the staff before the document is finished, it's not clear why the Chair would give the press, but not the commissioners themselves, copies of such a draft.
6. Selection of Allan Lichtman as the Commission's Sole Statistical Analyst for the Florida Report
As we have argued, we believe that a rigorous statistical analysis of the available data clearly and convincingly contradicts Dr. Lichtman's alleged findings. Dr. Lichtman's conclusions are so unsupportable, in fact, that it is first worth pausing to discuss the Commission's selection of him as its sole statistical analyst to carry out such crucial work.
The choice of Dr. Lichtman to carry out this work is problematic. When he appeared at the June 8, 2001, meeting of the commission to present his findings, he took pains to present himself as a scholar above party, who had ''worked for Democratic interests . . . and for Republican interests.''(see footnote 53) At the time, the American University web site identified him as a ''consultant to Vice-President Albert Gore, Jr.''(see footnote 54) His partisan commitment was evident in his media appearances throughout the campaign and the period of post-election uncertainty.
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Moreover, although Dr. Lichtman claimed (at the June 8 Commission meeting) that he began his study of possible racial bias in the Florida election with an openeven ''skeptical''mind, in fact, evidence suggests the contrary. As early as January 11, at the very beginning of his investigation and prior to conducting any detailed statistical analysis of his own, Dr. Lichtman stated publicly that he was already convinced, on the basis of what he had read in the New York Times, that in Florida ''minorities perhaps can go to the polls unimpeded, but their votes are less likely to count because of the disparate technology than are the votes of whites.'' He concluded: ''In my view, that is a classic violation of the Voting Rights Act.''(see footnote 55) Long before he examined any of the statistics, Dr. Lichtman had already concluded that Florida had disenfranchised minority voters and violated the Voting Rights Act.
A social scientist with strong partisan leanings might conceivably still conduct an even-handed, impartial analysis of a body of data. Unfortunately, that is not the case in the present instance.
America's journey on the road to racial and ethnic equality is far from over. We have traveled far, and still have far to go. But the Commission's majority report positively sets us back. By crying ''disenfranchisement'' where there was confusion, bureaucratic mistakes, and voter error, the report encourages public indifference. Real civil rights problems stir the moral conscience of Americans; inflated rhetoric depicting crimes for which there is no evidence undermines public confidence in civil rights advocates and the causes to which they devote themselves.
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The U.S. Commission on Civil Rights was once the moral conscience of the nation. Under the direction of the Chair, Mary Frances Berry, it has become an agency dedicated to furthering a partisan agenda. After six months of desperately searching for widespread disenfranchisement in Florida, the Commission produced a 200-page report based on faulty analysis and echoing vague and unsubstantiated claims.
The shoddy quality of the work, its stolen-election message, and its picture of black citizens as helpless victims in the American political process is neither in the public interest nor in the interest of black and other minority citizens. Do we really want black Americans to believe there is no reason to get to the polls; elections are always stolen; they remain disenfranchised? There is important work the Commission can do. But not if its scholarly and procedural standards are as low as those in this Florida report.
THERNSTROM-REBENBAUGH REJOINDER TO LICHTMAN
SEPTEMBER 3, 2001
We are pleased that, in his July 16, 2001 statement to the Committee on Rules and Administration of the United States Senate, Dr. Lichtman has, very belatedly, made available some of the details of his analysis that we have been seeking for months. When a majority of the members of the United States Commission on Civil Rights voted on June 8, 2001 to endorse his conclusions about the Florida 2000 elections, Dr. Lichtman's statistical reportwhich was absolutely central to the Commission's reportwas grossly inadequate. It failed to provide the regressions that he claimed to have done, regressions that any scholar would require before they could assess the quality of his analysis.
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This material was not made available to us until very recently, despite our repeated request, in violation of current scholarly norms in the social sciences. And what finally appeared on the Commission's web site on August 10 is dated July 16 but was never sent to us when it was first completed. Why not? Why keep information pertinent to an ongoing controversy from its own members who have advanced serious criticisms of its report? The answer, we suggest, is that the Commission fears that providing us with this document will allow us to advance additional unwelcome criticisms
It is also noteworthy that much of the analysis Dr. Lichtman describes here was apparently done long after his original inadequate statistical report and his oral presentation of his findings at the Commission meeting of June 8. The Commission's report was not based on what is to be found in Dr. Lichtman's July 16 statement.
It is not clear when this additional work was done. At a hearing of the Senate Committee on Rules and Administration on June 27, we were struck by Dr. Lichtman's very odd response to Senator McConnell's question about the possible influence of poverty on rates of ballot spoilage. In answering the Senator, Dr. Lichtman spoke at length about his analysis of the significance of education, not of poverty. As a highly experienced expert witness, Dr. Lichtman surely knew the importance of listening carefully to questions in such situations, and we suspect that he was being deliberately evasive. Could it be that as late as the end of June Dr. Lichtman had not yet in fact run any regressions that used county-level poverty rates as a variable, for example, despite suggestions to the contrary is his original report?
Dr. Lichtman's rejoinder is very brief, and it fails to address most of the objections we raised about his June report. We had neither the advantage of being able to obtain assistance of the Commission's sizable staff or the ability to hire experts of our own. Nonetheless, we developed a thorough critique of the Commission's statistical analysis, running to more than 8,000 words, more than a third of our entire long document. We had expected that Dr. Lichtman's rejoinder would address our chief criticisms of statistical issues. To our surprise and disappointment, it fails even to mention many of them. Before we assess what Dr. Lichtman has to say now, it will be useful to sum up the major points that he has not ever attempted to refute.
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These matters, it should be noted, involve only a portion of our dissent. Close to two-thirds of the dissent is devoted to other flaws in the Commission's report. None of these criticisms has been answered by the authors of the report, although we believe that they are sufficient to lead any disinterested reader to conclude that the report is riddled with error and that its main conclusions are unproven.
I. KEY POINTS IN OUR CRITIQUE OF HIS STATISTICAL ANALYSIS THAT DR. LICHTMAN CHOSE TO IGNORE
Apparently uncontested, at least for now, are the following, spelled out in detail in our dissenting opinion on the Commission's report.
1. When a voter who turned in a ballot at the November election failed to register a valid vote for President of the United States, it is absurd to conclude that this proves that he or she was ''disenfranchised.'' A good many voters do not vote for all offices on the ballot, and some deliberately abstain from making a choice in the presidential race. Substantial numbers also deliberately vote for more than one candidate for some bizarre reason. Indeed, Civil Rights Commission Chair Mary Frances Berry herself has said in public that she sometimes deliberately ''overvotes.''
2. Undoubtedly, though, substantial numbers of Floridians who wanted to register a choice in the presidential contest and actually cast a ballot failed to turn in one that included a presidential vote that was actually tabulated. This is a common feature of elections everywhere. What could explain this? Amazingly, both the Commission report and the report of Dr. Lichtman on which it heavily rests studiously avoid the term ''voter error,'' even though that is the only credible description of what happened. The Commission tries to absolve such voters of all blame by referring to ballots that were ''rejected'' or ''spoiled,'' as if someone or something had improperly ''rejected'' or ''spoiled'' these ballots. But the long and elaborate investigation the Commission conducted in Florida yielded not a shred of evidence to contradict the obvious fact that the only people who ''spoiled'' any ballots cast in Florida last November were the individual voters who failed to fill them in in compliance with established electoral procedures. Their ballots were ''rejected'' because they were not properly completed.
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3. We cannot determine with any precision exactly who cast the ballots in which a valid choice for president could not be determined by the counting machines, or in many places by canvassing boards conducting manual recounts. Dr. Lichtman tries to draw conclusions about the matter by looking at variations from county to county in rates of ballot spoilage and then relating those variations to variations in other characteristics of those counties, chiefly as their racial composition. Counties, though, are crude units for analysis, and his method is highly vulnerable to what statisticians term ''the ecological fallacy.'' Many leading statisticians and social scientists, some of them cited in our dissenting report, believe this method yields unreliable conclusions. Dr. Lichtman. regrettably, has chosen to pretend this serious methodological issue does not exist.
4. The estimate in the Commission report that received most attention in the press is the sensational claim that black voters were nine times as likely as whites to cast votes that did not count; in some places it even claims that the figure is ten to one. That figure was an absurd extrapolation that failed to control for any other variables that may have been correlated with race, such as poverty and literacy rates. We note with great interest that this estimate does not reappear in Dr. Lichtman's July 16 statement, and that the author fails to provide any explanation as to why it does not reappear. His claim that the racial disparity in ballot spoilage rates was nine to one has been silently abandoned.
5. In addition to county-level data, Dr. Lichtman also originally examined precinct-level for three Florida counties. Although precincts are much small units than counties and superior in that respect, the difficulty with this part of the analysis is that no socioeconomic variables other than race were examined by Dr. Lichtman. No sophisticated social scientist would ever draw conclusions about how race influenced some social phenomenon from an analysis that used race as the only independent variable. The proper question is what effects may be attributed to race when other possibly relevant variables are held constant in the analysis. Dr. Lichtman made only a feeble stab at doing this in his analysis of county-level data; he failed to do it at all in his precinct analysis. In his July 16 statement, Dr. Lichtman reports on the findings of his subsequent analysis of two additional Florida countiesBroward and Escambia. This new material has precisely the same glaring defect as his earlier work on precinct data: it looks only at the relationship between race and ballot spoilage without taking other variables into account.
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6. One of the oddest, and to us most offensive, features of the analysis that Dr. Lichtman did for the Commission was his decision to dichotomize the Florida population into the categories of black and ''non-black.'' We would have thought that everyone today understood that there are very significant distinctions between non-Hispanic whites, Hispanics, Asian Americans, and American Indians. Casually lumping all these groups together as ''non-blacks'' obscures important cultural differences that we would expect the U.S. Commission on Civil Rights, of all bodies, to recognize and respect. After all, people of Hispanic descent outnumber African Americans in Florida today, and the state has sizable numbers of Asian Americans and American Indians as well. It is incredible, but readers of the Commission's report would never know that. Dr. Lichtman's July 16 statement offers no explanation for this egregious failure, and indeed presents further estimates that employ the indefensible ''non-black'' category.
7. In a separate statistical analysis, Dr. Lichtman examined the so-called ''purge list'' used by some county officials to remove from the registration lists persons convicted of a felony and hence ineligible to vote by law. Our dissent examined his data carefully, and concluded that it proved just the opposite of what the Dr. Lichtman and the Commission claimed. On this issue too, Dr. Lichtman has not provided any answer to our critique
Any thoughtful reader with an open mind, we believe, would find these unanswered criticisms extremely damaging to the case the Commission attempted to make. They won't go away simply because defenders of the report pretend they don't exist.
II. LICHTMAN'S ARGUMENTS IN HIS JULY 16 STATEMENT
Page 229 PREV PAGE TOP OF DOC We now turn to matters that Dr. Lichtman's July 16 document does address.
First, it should be noted that some of these issues are highly technical, and that readers without advanced training in statistics will find them very difficult to sort out. Our own expert, Dr. John Lott, goes into these matters in detail in his August 25, 2001 ''Response to Lichtman's Comment.'' We will allude to some of Dr. Lott's main arguments below, but his observations should be read in their entirety.
What new evidence is presented in Dr. Lichtman's July 16 statement? Its opening pages report on his further work on precinct-level data from Broward and Escambia counties. As we have already observed above, Lichtman's failure to examine any socioeconomic or demographic variables other than race renders this exercise of little value.
Furthermore, Lichtman's discussion focuses on extreme casesprecincts that were either 90 percent or more African American or 90 percent or more ''non-black,'' to use Lichtman's awkward and offensive term. As pointed out in our original dissent, this method exaggerates differences between groups. Florida blacks who live in nearly all-black neighborhoods cannot be assumed to be representative of the state's black population as a whole. They very likely are poorer and less educated, on the average. And whites or other ''non-blacks'' who lived in neighborhoods with very few or no African American residents may not be representative of the state's white population either. No careful scholar would extrapolate a statewide pattern from inspection of such extreme cases.
Perhaps most important, even his extreme case analysiswhich clearly exaggerates differencesdoes not support his estimate that black voters were nine times as likely as non-blacks to cast invalid ballots. The extreme case analysis he has done in five counties, in fact, show that the average disparity was not nine to one but three to one (3.1:1 to be precise). We offered this criticism in our dissent, and Dr. Lichtman has provided no answer to it. The precinct-level data from the two additional counties does not alter the results at all.
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In addition, Dr. Lichtman provides three regression tables that he claims support his contention that race alone is what determined the pattern of ballot spoilage in the 2000 election in Florida. Dr. Lott has examined these very carefully, and finds many flaws in them. The findings are very sensitive to the precise specifications used, and Dr. Lott argues that those specifications are arbitrary and lack adequate explanation and justification. Even when Dr. Lott reran the numbers using Dr. Lichtman's specifications, his results come out significantly different than those reported by Dr. Lichtman. Dr. Lott's own regressions are technically superior, we believe, and they yield entirely different conclusions.
Other experts will have to assess the technical aspects of this controversy. Instead of plunging into it more deeply, we will now shift ground and explore two vital issues that should be fully comprehensible to the lay reader. These involve the role of education and literacy levels in explaining rates of voter error, and the effect of the partisan affiliations of election officials
III. THE QUESTION OF EDUCATION AND LITERACY LEVELS
Our original report argued that the voters who mistakenly spoiled their ballots in the November election were largely people who had trouble reading and following the simple instructions provided with the ballots. African Americans would fall into this category in disproportionate numbers, because the average literacy level of the black population is much lower than that of whites. The 1992 National Adult Literacy Study found that 38 percent of African Americans ranked at the lowest level in ''prose literacy,'' Level 1. Persons at level one were defined as lacking the reading skill to be able to ''make low-level inferences based on what they read and to compare or contrast information that can easily be found in [a] text.''(see footnote 56) Since blacks were nearly three times as likely as whites to be at the lowest literacy level, it would not be surprising to find that greatly disproportionate numbers of them were unable to meet the challenge of figuring out how to register a choice for a particular candidate. It hardly seems coincidental that the racial disparity in the Florida ballot spoilage rate and in levels of illiteracy nationally are so similar.
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Dr. Lichtman maintains that his regressions disprove that hypothesis. He claims to have measured the effect of literacy by using two county-level measuresthe proportion of county residents who were classified at the lowest literacy level and the proportion who had less than nine years of schooling. However, the most sophisticated regressions in the world will not yield meaningful results if the underlying data they employ are inadequate measures of the phenomenon they are supposed to represent. In this case, the data are grossly deficient for a number of reasons. We pointed out some of their deficiencies in our dissent, and it is disappointing that Dr. Lichtman ignores the issue altogether, blithely proceeding to crank out numbers that obscure rather than illuminate reality.
It is astonishing that Dr. Lichtman would use county-level estimates of the proportion of residents reading at Literacy Level 1 without telling his readers that the 1992 survey from which the data were drawn did not include enough cases from Florida to permit direct estimates of literacy levels. What he relied upon was a series of ''synthetic estimates'' that amount to guesses about what the level would be in light of each county's demographic characteristics.
Even worse, the way Dr. Lichtman that uses these county-level estimates ignores the crucial fact emphasized abovethat African Americans are far more likely than whites to be at the lowest literacy level. If we had good data that would be permit county-level estimates of literacy broken down by race, we are confident that a ''percent black at Literacy Level 1'' would prove highly significant in a regression equation.
A similar objection applies to Dr. Lichtman's other related variable, the proportion of county residents with less than nine years of schooling. These figures are not broken down by race, so they are useless for testing the proposition that racial differences in literacy levels are the major cause of the disparities in ballot spoilage. Furthermore, this is a poor measure because less than a tenth of Florida's population (9.6 percent) had this little education at the time of the 1990 Census, the data Lichtman uses, and the figure would have been even lower in 2000. Very few people under the age of 50 have so little education these days.
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Dr. Lichtman's introduction of this variable is very puzzling. His original report and the Commission report both claim that he did a regression that included both literacy and percent who were not high school graduates as variables. We have repeatedly requested to see the actual regression, to no avail. We still do not have it, because Dr. Lichtman has changed the schooling variable from ''percentage of high school graduate'' to ''percent under 9th grade'' education. Why the switch? Do these two measures yield different results? Surely the matter requires some explanation.
In denying that literacy and educational levels have anything to do with the pattern of non-voting he is attempting to explain, Dr. Lichtman would have us believe
that prosperous and well-educated African Americans living in the suburbs or relatively integrated neighborhoods were just as likely to cast spoiled ballots as those living in inner city slums and voting in precincts that were 90 percent or more black. How could this possibly happen? We can only imagine two scenarios in which this might be true:
a. It could be true if local election officials had somehow figured out which ballots were cast by black voters and how to alter them behind the scene so as to render them invalid. This seems frankly impossible, and the Commission never found a shred of evidence even hinting at such fraudulent manipulation of ballots in its long investigation in Florida. This scenario is even harder to take seriously when we recall that the vast majority of spoiled ballots were cast in jurisdictions in which Democrats controlled the electoral machinery (a point Dr. Licthman denies unconvincingly as we shall see shortly). These officials lacked both the means and the motive to carry out such a scheme. The idea is simply ludicrous.
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b. That leaves voter error. Dr. Lichtman apparently believesor at least would like us to believethat well-educated African Americans do no better than functional illiterates when confronted with the challenge of reading ballot instructions and following simple directions like ''VOTE FOR ONE AND ONLY ONE.'' This proposition is also ludicrous.
IV. THE PARTISAN AFFILIATIONS OF LOCAL ELECTION OFFICIALS
We have criticized the Commission report for its partisanship. Its errors, distortions, and dubious interpretations all have same slant. The report, quite simply, was clearly designed to support the ''stolen election'' theory. George W. Bush only won Florida, and hence the presidency, it holds, because ''countless numbers'' of black residents of Florida were somehow ''disenfranchised.'' It was all the fault of Governor Jeb Bush and Secretary of State Katherine Harris, who supposedly orchestrated the effort. The Commission report concluded that its investigation had not uncovered ''conclusive evidence'' that state officials were involved in a conspiracy to keep minorities from voting. This formulation makes the Commission's bias unmistakable. In fact, the Commission not only found no ''conclusive evidence''; it found no evidence whatever to support this lurid charge.
In our dissent, we went beyond this obvious point and reported that Dr. Lott's statistical analysis had yielded very important findings that were impossible to square with the ''stolen election'' theory. We noted that in 24 of the 25 Florida counties with the highest rates of ballot spoilage, the electoral machinery was in the hands of Democratic local officials, and in the 25th the supervisor of elections was an Independent. The choice of voting technology and of counting procedures, that is, had nothing to do with Governor Bush and Secretary of State Harris. It was made by people with the same partisan affiliations as more than nine out of ten African Americans who were allegedly disenfranchised. The same holds when you look at all the state's 67 counties, as Dr. Lott did. Having a Democrat in charge of the election sharply increased the ballot spoilage rate; having a Republican in charge lowered it dramatically.
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This is such a damning blow to the stolen election theory supported by the Commission report that Dr. Lichtman could not ignore it. One of his new regressions, reported in his Table 2, does include the political party of the supervisor of elections as a variable. But taking the party of the supervisor into account, he assures us, ''has no discernible influence on ballot rejection rates.''
Why do Dr. Lott's regressions show a very powerful influence for this variable and Dr. Lichtman none at all? The answer is Dr. Lichtman engages in a nice bit of statistical legerdemain here. He does it by slyly introducing, along with the party of the supervisor of elections, another new variablethe proportion of Democratic voters in the county. Adding this into the equation removes the effect of party of supervisor that Lott found. Why? Because the percent Democratic among voters is, of course, very strongly correlated with the likelihood that the supervisor was Democratic. Dr. Lichtman is thus saying, in effect, that ''the ballot spoilage rate was much higher in counties in which Democrats controlled the electoral machinery, but they controlled the elections only because there were so many Democratic voters in those counties.''
True, but utterly irrelevant. This does nothing to undermine Dr. Lott's orginal analysis. Dr. Lott pointed out a devastating weakness in the argument that the black vote was diluted, in some unknown fashion, by the actions of Republican state officials. It happens that the ballot spoilage rate in general, and the estimated spoilage rate for black voters, was highest in places where the people who ran the electionsthe only ones in a position to do anything to discourage voters or deface ballotswere from the same party as the overwhelming majority of the state's African American voters. The fact that those same counties tended to be heavily Democratic does nothing to alter that undeniable fact.
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Our harsh assessment of the U.S. Commission on Civil Rights' report on the Florida elections in 2000 remains unchanged. In its earlier history, under very different leadership, the Commission did distinguished work that was applauded by people of widely different political persuasions. The imprimatur of the Commission carried weight, and deservedly so.
The Florida report, alas, lacks credibility, and further tarnishes the Commission's once-splendid reputation. Beneath the patina of scholarship provided by Dr. Lichtman, it nothing more than a tendentious brief written to support preconceived partisan conclusions. It consistently distorts data and ignores evidence that does not fit its argument.
Furthermore, the Commission has failed miserably in its responsibility to give a respectful hearing to the voices of Commissioners who disagree with its present leadership. Repeated requests for information, most notably Dr. Lichtman's machine-readable data and the regressions he performed using it, have been stonewalled. We have been told that Dr. Lichtman had no data in his possession, suggesting either that he made up his statistical estimates out of whole cloth or that he unaccountably destroyed all his statistical files once he had done his calculations. Testifying before the Senate Rules Committee on June 27, 2001, Commission Chair Mary Frances Berry suggested that Dr. Lichtman had obtained all of his data from the Web, and that it had somehow flown back up to the Web once he had produced his tables, an absurdity no one familiar with quantitative social science could possibly believe. A few weeks later, when the material was still not forthcoming, we heard another excuse from Chair Berry. Dr. Lichtman did have what we sought, but it was scattered on four or five different computers and would be too much trouble to assemble for us. These were simply pathetic efforts to conceal the truth: that the commission sought to shelter Dr. Lichtman's shoddy and slanted analysis from the severe criticism it so richly deserved.
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(Footnote 1 return)
USCCR transcript, February 16, 2001, p. 30:
(Footnote 2 return)
In a paper by McKinney & McDowell dated January 2001, p. 2, it says: ''The firm also distributed via e-mail the second advisory and hearing agenda/witness list (obtained from the Commission) to many additional media representatives who contacted the firm for information prior to the hearings.
(Footnote 3 return)
Seelye, Katharine, New York Times, March 9, 2001, p. A14.
(Footnote 4 return)
At the April 13 Commission meeting, the Chair did not specify when Commissioners would receive a draft copy of the report. Her only statement was: ''So Eddie, we have to have that [the draft report] at some point before then if we are going to act on it at the June meeting.''
(Footnote 5 return)
Getler, Michael, The Washington Post, ''When Leaks Backfire,'' June 10, 2001.
(Footnote 6 return)
USCCR transcript, September 14, 2001, pp. 5055. The hotline is not mentioned in the discussion and not voted on.
(Footnote 7 return)
The Statement of Work originally issued by the USCCR in the year 2000 stated: ''Based on background information to be provided by the Commission, the Contractor shall perform research, plan, coordinate and perform both press and public outreach services. . . . The Statement of Work was amended. The new task section read: ''Based on background information to be provided by the Commission, the Contractor shall perform research, counsel, plan and coordinate public relations based on guidance from the USCCR Chair and when designated, other senior staff throughout the contract period.''
(Footnote 8 return)
Sergent, Jennifer, ''Civil Rights Commission PR Expenditures Questioned,'' August 15, 2001.
(Footnote 9 return)
USCCR transcript, November 15, 1996
(Footnote 10 return)
USCCR Transcript, March 8, 2002, pp. 5968.
(Footnote 11 return)
Various memoranda from December 17, 1993 to September 9, 1997 attached reiterate the chairperson's view that Commissioners cannot communicate directly with the staff or that special assistants are not to talk to the staff. A memo dated December 17, 1993 from Commissioners Carl Anderson, Arthur Fletcher, Robert George, Constance Horner and Russell Redenbaugh express concern over Chairman Berry's statement ''express[ing] discomfort at having Commissioner assistants located at Commission headquarters and . . . may take action to remove them.''
(Footnote 12 return)
October 12, 2001, USCCR, p. 25.
(Footnote 13 return)
''Sins of the Commission,'' Washington Post, February 11, 2002; Page A24.
(Footnote 14 return)
USCCR Transcript, June 11, 2001, pp. 130133.
(Footnote 15 return)
USCCR transcript. April 13, 2001. pp. 46.
(Footnote 16 return)
USCCR transcript, March 8, 2002, pp. 107112.
(Footnote 17 return)
(Footnote 18 return)
(Footnote 19 return)
Report, 21. Note that later in the report, on page 148, the majority asserts that it was highly anomalous that 63 percent of spoiled ballots in Palm Beach County were overvotes, and blames the alleged anomaly on the infamous butterfly ballot. The pattern, according to the report, was ''just the opposite of what we normally observe, which is five percent or less of the spoiled ballots.'' How could the author of this passage possibly think that 5 percent or less was the norm for overvotes in Florida when the Lichtman figures cited earlier in the report reveals that fully 59 percent of all the spoiled ballots in the state were overvotes?
(Footnote 20 return)
Martin Merzer, The Miami Herald Report: Democracy Held Hostage (New York: St. Martin's Press, 2001), 194
(Footnote 21 return)
(Footnote 22 return)
(Footnote 23 return)
Richard A. Posner, Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts (Princeton, N.J: Princeton University Press, 2001), 61.
(Footnote 24 return)
(Footnote 25 return)
According to the Caltech/MIT Voting Project, ''state and federal voting machine certifications tolerate very low machine failure rates: no more than 1 in 250,000 ballots for federal certification and no more than 1 in 1,000,000 in some states.'' The problem, according to these investigators, has to do with ''how people relate to the technologies. . . .'' See the Caltech/MIT Voting Project, ''A Preliminary Assessment of the Reliability of Existing Voting Equipment,'' February 1, 2001, 13.
(Footnote 26 return)
Exit polls are commonly used to estimate how particular groups voted, and even they are far from perfect. One flaw is that absentee voters are not represented at all. In any event, we can't tell from an exit poll whether someone failed to complete a valid ballot; if they thought they had erred, presumably they would have had it invalidated and have received another.
(Footnote 27 return)
W.G. Robinson, ''Ecological Correlations and the Behavior of Individuals,'' American Sociological Review, vol. 15 (June, 1950), 351357.
(Footnote 28 return)
D.A. Freedman, ''Ecological Inference and the Ecological Fallacy,'' University of California at Berkeley Department of Statistics Technical Report No. 549, Oct. 15, 1999, This paper will appear as a chapter in the forthcoming International Encyclopedia of the Social Sciences.
(Footnote 29 return)
Transcript of June 8, 2001 meeting, 42.
(Footnote 30 return)
The explanation is that immigrants tend to be attracted to the richer statesCalifornia and New York rather than Tennessee and Mississippi. Thus their presence is associated with high average incomes at the state level, but that does not mean that their average incomes are especially high.
(Footnote 31 return)
D. A. Freedman, S. P. Klein, M. Ostland, and M. Robert, ''On 'Solutions' to the Ecological Inference Problem,'' Journal of the American Statistical Association, vol. 93 (December 1998), 15181523.
(Footnote 32 return)
(Footnote 33 return)
National Center for Education Statistics, Adult Literacy in America: A First Look at the Results of the National Adult Literacy Survey, National Center for Education Statistics (Washington, D.C.: U.S. Government Printing Office, 1993), 18, 113.
(Footnote 34 return)
National Center for Education Statistics, NAEP 1998 Reading Report Card for the Nation and the States, NCES 1999500 (Washington, D.C.: U.S. Department of Education, 1999), 70.
(Footnote 35 return)
National Center for Education Statistics, Literacy in the Labor Force: Results from the National Adult Literacy Survey, NCES 1999470 (Washington, D.C.: U.S. Department of Education, 1999), 57.
(Footnote 36 return)
NAEP 1998 Reading Report Card, 260, and data from the NAEP website.
(Footnote 37 return)
Report, 22; Lichtman Report, 6.
(Footnote 38 return)
Posner, Breaking the Deadlock, 81.
(Footnote 39 return)
(Footnote 40 return)
(Footnote 41 return)
It should be noted that the data that are available on literacy as so crude that it is hard to draw any solid conclusions by looking at variations across counties. The data are ''synthetic estimates of adult literacy proficiency'' derived from the U.S. Department of Education's 1992 National Adult Literacy Survey, available in National Institute for Literacy, The State of Literacy in America: Estimates at the Local, State, and National Levels (Washington, D.C.: 1998), and on a number of web sites. The best electronic source for them is <http://www.casas.org>, where they may be found by doing a search for adult literacy. The estimates for Florida counties are ''synthetic,'' because the 1992 NALS did not include enough sample members living in Florida to allow for any conclusions about the state, much less about individual counties.
(Footnote 42 return)
Frank J. Murray, ''Florida's Black Voter Turnout Grossly Overstated,'' Washington Times, July 11, 2001.
(Footnote 43 return)
Transcript of June 8, 2001 Meeting, 44.
(Footnote 44 return)
(Footnote 45 return)
(Footnote 46 return)
U.S. Census Bureau, Profiles of General Population Characteristics, 2000 Census of Population and Housing: Florida, May 2001, Table DP1. We state that the black population was approximately 15 percent of the total because its exact size depends upon the definition you use. Some 14.6 percent of Floridians reported that their sole race was black. If you add in people who considered themselves both black and something else, the figure increases to 15.5 percent, still substantially smaller than the Hispanic population.
(Footnote 47 return)
Ibid. In addition to the 2.7 million Hispanics and the 450,000 Asians or American Indians, another 697,000 Floridians reported that they were of ''other race,'' meaning other than white, black, American Indian, Asian, or Pacific Islander. Most of these ''other race'' respondents were, in all likelihood, Latinos, and thus cannot be fairly added to the total excluded from attention because it would entail double counting. All Hispanics were excluded from the Commission's analysis unless they identified as African Americans on the census race question, which hardly any did.
(Footnote 48 return)
John R. Lott, Jr., ''Documenting Unusual Declines in Republican Voting Rates in Florida's Western Panhandle Counties in 2000,'' unpublished paper, May 2001.
(Footnote 49 return)
Stan Simpson, ''Report Inspires Gore Aide,'' Hartford Courant, June 11, 2001.
(Footnote 50 return)
''Unfair, Again,'' The Economist, June 9, 2001.
(Footnote 51 return)
Merzer, Miami Herald Report, 105.
(Footnote 52 return)
Palm Beach Post, ''Felon Purge Sacrificed Innocent Voters,'' May 27, 2001.
(Footnote 53 return)
Transcript of United States Commission on Civil Rights meeting, Washington, D.C., June 8, 2001, 46.
(Footnote 54 return)
(Footnote 55 return)
Transcript of U.S. Commission on Civil Rights hearing, Tallahassee, Florida, January 11, 2001.
(Footnote 56 return)
National Center for Education Statistics, Adult Literacy in America: A First Look at the Results of the National Adult Literacy Survey, National Center for Education Statistics (Washington, D.C.: U.S. Government Printing Office, 1993), 18, 113.