A Closer Look: The Florida and Georgia Experiences

By Catherine Wall

Vol. 23, No. 2, 2001 pp. 14-17

The 2001 state legislative sessions witnessed very little progress towards comprehensive election reform. Only two southern states--Florida and Georgia--passed meaningful legislation to repair the disfranchising, antiquated, and undemocratic electoral flaws that were made glaringly apparent by the 2000 election. Maryland is the only non-southern state to pass comprehensive reform.

Many of the laws and procedures that disfranchise voters disproportionately impact minority voters. The U.S. Commission on Civil Rights found a strong basis for concluding that violations of Section 2 of the Voting Rights Act occurred in Florida's election. Its study found that 14.4 percent of Florida's black voters cast ballots that were rejected while only 1.6 percent of Florida's white voters' ballots were rejected. In Georgia, an SRC study found racial disparities in the state's voting system. The punch card system, in which 4.67 percent of ballots cast were discounted, was the least effective voting machinery used in the state. Optical scan was the most effective but still only 2.72 percent of those ballots went uncounted. The study found that Georgia's black voters were almost two times more likely than white voters to live in counties using punch cards.

The following is a more detailed analysis of what Florida and Georgia's election reform laws will achieve and the work that remains.

Florida

Florida became ground zero for a nightmarish election process this past November, so it was incumbent on the state to take the lead in state election reform. The reform was embodied in Senate Bill 1118, sponsored by Senator Bill Posey (R-Rockledge).

Journalists have praised Florida's legislation as a swift and impressive handling of a disastrous situation, and many Florida lawmakers believe the new law will cure the state's election law problems. Senator Posey, a member of the Florida Senate Ethics and Elections Committee, maintains that the measure accomplishes his committee's "two top priorities: number one was to make sure every vote counted, and the second was to have a process that would instill confidence in every voter that their vote would be counted."

While Florida's election reform bill did allocate $24 million in state funds for standardized ballot recount provisions, provided for voter and poll worker education, and overhauled the voter registration system, the bill left many important issues unresolved. The bill failed to provide for the full funding of election reforms, failed to address the issue of voter disfranchisement resulting from problems in the Motor Voter registration system, failed to address ex-felon disenfranchisement, and did not address problems associated with the partisan affiliation of election officials.

On April 26, 2001, the Florida Consumer Action Network, the Florida League of Conservation Voters, the Florida Chapter Sierra Club, and the Florida Clean Elections Coalition published a list of the deficiencies of the new legislation. The groups pointed to many important omissions that they contend amount to the legislature's skirting of crucial issues, resulting in a negative impact on voter enfranchisement. Susie Caplow, an environmental and consumer advocate who lobbies for the Sierra Club, believes that the law did not address the problem of the undercounting of votes cast by poor and minority voters. Caplaw stated that in order to solve that problem an election law must adequately address voter education, the voting rights of felons who have completed their sentences, and must provide for multi-lingual ballots. The statute failed to comprehensively address any of these matters.

A closer look at the Florida law reveals the issues to be revisited.

. The law establishes comprehensive recount measures that provide for an automatic, standardized statewide recount to be conducted of undervotes and overvotes if the winning vote margin is within one quarter of 1 percent. This provision significantly changes the former law, which gave counties wide discretion to establish their own recount procedures.

Provisional Ballots. The new legislation authorizes the use of provisional ballots in elections to allow voters who were wrongly left off of registration rolls to vote. The vote cast on a provisional ballot will be counted once it is established that the voter should have been on the registration rolls provided that the vote was cast at the correct voting precinct. According to Ion Sancho, supervisor of elections in Leon County, voters who guess their precinct


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correctly are ensured of their enfranchisement, but "if they guess wrong, they don't get their right to vote."

Voter and Poll Worker Education. The measure sets minimum standards for voter education efforts and poll worker training and recruitment and allocates almost $6 million in funding to implement these standards. The Department of State must adopt rules prescribing minimum standards for nonpartisan voter education, including voter registration, balloting procedures, absentee and polling locations, voter rights and responsibilities, distribution of sample ballots, and public service announcements. The Department of State will also prepare a polling place procedures manual to be placed in each precinct. Susan MacManus, a political science professor at the University of South Florida, believes that these new minimum standards are a major accomplishment of the statute. "To me one of the key things is voter education," she said, maintaining that while continuing improvement will be necessary, the law is "a step in the right direction." Yet according to Caplow, the amount of money allocated will not cover actual voter education costs.

Standard Ballots. The legislation ensures statewide ballot clarity by means of a standardized and unambiguous ballot design to be approved by the Department of State. While this will ensure a level of equality for all English speaking voters, the bill does not require multi-lingual ballots in precincts with high numbers of non-English speaking voters, leaving a large obstacle between those voters and fair representation.

Electronic Voting Systems. The law requires counties to use electronic tabulation voting systems, provides funding for upgrading voting systems ($7,500 per precinct for counties of 75,000 or fewer, and $3,750 per precinct for the rest of the counties), and bans punch card voting systems. Nevertheless, the amount of funding provided is not enough to cover the statewide costs of replacing punch card machines. Sancho maintains that while smaller counties may be able to purchase machines with their allotted amount, "the legislation is biased against urban counties," in that the densely populated counties will have to come up with supplemental funds to purchase the new equipment.

Voting Rolls. The new statute sets up a statewide voter registration database and provides $2 million in funding for the database.

Absentee Voting. The measure establishes no-excuse absentee voting which would end the requirement that a voter offer a legally acceptable reason for being unable to vote at the assigned precinct on voting day in order to obtain an absentee ballot. It also creates more reasonable regulations regarding overseas absentee voting. Early voting provisions which enable a voter to cast his/her ballot at a designated location prior to election day were not provided for in Florida.(According to the National Conference of State Legislatures, few states actually passed comprehensive early voting laws. New Mexico is a notable exception, with early voting on electronic machines allowed until 5 p.m. the Saturday prior to election day)

Polling Hours. The statute creates a study to determine the merits of uniform poll opening and closing but does not extend polling place hours.

Secondary Primaries. The law eliminates secondary primaries in 2002, streamlining the election process by abolishing a run-off between the top two candidates if no one captures 50 percent of the vote in the first primary. The statute eliminates secondary primaries only in the 2002 elections though, and there has been speculation that this change was a partisan maneuver by the Republican-controlled legisture to assist Governor Jeb Bush with his reelection. In addition, the Florida bill does not consider "instant runoff" voting that would allow voters to


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elect candidates by a plurality rather than a majority.

Voting Rights. The measure requires polling places to post a Voter's Bill of Rights, stating that each voter has the right: to vote and have that vote accurately counted; to cast a vote if in line when the polls close; to ask for and receive assistance in voting; to receive up to two replacement ballots if a mistake is made prior to casting the ballot; to receive an explanation if his/her registration is in question; to be given a provisional ballot if registration is in question; to prove identification by signing an affidavit; to be given written instructions to use when voting or oral instructions from an elections officer; to vote free from coercion or intimidation; and to vote on a voting system that is in working condition and that allows votes to be accurately cast. The Florida law, however, weakens this requirement by failing to provide sanctions for the failure to do so. Further, the statute requires a list of Voter's Responsibilities to be posted with the Bill of Rights, which could confuse or intimidate new voters. The Voter's Bill of Responsibilities requires each voter: to study and know candidates and issues; to keep voter address current; to know precinct location and hours of operation; to bring proper identification to the polling station; to know how to operate voting equipment properly; to treat precinct workers with courtesy; to respect the privacy of other voters; to report problems or violations of election law; ask questions when confused; and to check completed ballot for accuracy. Although there are no sanctions attached to these responsibilities, voters could be intimidated and/or confused by the contradiction between the Voter's Bill of Rights and the Voter's Bill of Responsibility. For example, the Voter's Bill of Rights providers the right to sign an affidavid in lieu of proper identification, while the Voter's Bill of Responsibility requires voters to provide proper identification.

Internet Voting. The law begins internet access for voters, but only for those overseas. Overseas voters will be emailed a list of candidates thirty days prior to the election and, if state officials are able to negotiate the technical hurdles, overseas voters will be able to request an absentee ballot via email or fax.

The new law failed to address a number of problems with Florida's electoral system:

Motor Voter Registration. The statute does not directly deal with Motor Voter problems that caused the disfranchisement of thousands of Florida voters in 2000. Many Florida residents took advantage of Motor Voter provisions which allowed them to use their license application as a voter registration form in order to register to vote as they received their driver's license. State law required that the form be signed by the registering voter and returned to the Secretary of State by the Department of Highway Safety and Moter Vehicles. In many cases, however, the voter was not asked to sign the registration form and the form was not transferred to the Secretary of State. Sancho estimates that 3 to 7 percent of these voters were turned away at the polls. "It's a training issue as far as I can see," Sancho said. The employees at the Department of Highway Safety and Motor Vehicles "do not approach [voter registration] with the seriousness and dedication that they need to."

Felon Disfranchisement. The law does not address re-enfranchising felons who have served their time.

Same Day Registration. The law does not allow for the convenience of same day voter registration.

Non-Partisan Elections Officials. the new measure does not require election officials to be non-partisan. According to Sancho, "the failure to establish an indepen-


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dent, nonpartisan state elections administration was a major omission in the bill." He maintains that an earlier Senate version of SB 1118 stipulated that election officials should be nonpartisan, but the House wanted "all references to nonpartisanship to be stricken from the bill." This omission could have far reaching affects on the fairness of future elections.

Georgia: Underfunded Reform

The election crisis of November 2000 was not confined to Florida. Most states need to reform their election laws and procedures in order to prevent widespread disenfranchisement. In fact, Georgia--with 94,681 presidential votes uncounted--had a higher undervote rate than Florida. Alarmed by the high number of undervotes, Cox and the Georgia General Assembly took immediate action and passed the first comprehensive election reform law in the nation, even before Florida's new statute was enacted.

This principal election reform measure has earned Secretary of State Cathy Cox praise for stepping up to the forefront of election reform and mandating a statewide election system to cure her state's poor error rate in 2000. According to groups like the American Civil Liberties Union, however, the Georgia law falls far short of what Cox's press releases would have voters believe. In fact, it is clear that the substantive changes contained in the law are contingent on funding. Article 8.1 of the statute begins with the statement: "Provided that the General Assembly specifically appropriates funding." Considering that Cox estimates that up to $100 million may be needed to implement the legislation, the securing of funding is indeed a significant condition to the success of the law. Neil Bradley of the Southern Regional ACLU's Voting Rights Project said in relation to solving problems with minority enfranchisement, "it's a first step in the right direction," but the law "doesn't really accomplish anything" because of the lack of funds.

Delving into Georgia's new law exposes several pressing issues that were left unresolved:

Statewide System. The Georgia law creates a statewide election system to be implemented by 2004. This standardization, however, is dependent on state and federal funding that may not surface and the bill ignores problems that will likely be encountered in 2002.

Electronic Voting Systems. It instigates a pilot project to test different electronic voting machines for which $200,000 has been set aside, but the individual participating counties must foot the costs for voter education regarding the new machines.

Voter Rolls. The Georgia measure formulates a new accuracy check on voter rolls that requires the Secretary of State's approval before deceased voters are removed from lists, but the information is still gathered by local officials.

Non-Partisan Primaries. The law ends non-partisan primaries, but, like Florida, does not present "instant run-offs," allowing candidates to be elected by a plurality rather than a majority of the vote, as a solution to unnecessary extra time at the polls.

Ballot Clarity. The law provides for statewide usage of a "short title" on ballots, drafted by the Constitutional Amendments Publication Board, to identify proposed amendments to the state constitution. Voters were confused and frustrated by the often lengthy and complicated legislative language that comprised the proposed amendments. The short title was instituted to give a short, simple summary of the proposals. The short title will ensure clarity and ease for citizens voting on constitutional amendments, but the statute does not mandate a statewide uniform ballot.

Absentee Ballots. The new law creates stricter requirements for the handling of absentee ballots and provides for slightly harsher penalties for those pollworkers who break their oath of secrecy.

Election procedure areas that are completely ignored in the new statute include: comprehensive provisions for recount implementation; provisional ballots; no-excuse absentee voting; same-day voter registration; overseas voter policies; substantive voter education; poll worker training; and, uniform polling place hours. Further, both an early voting plan and a proposal to change ballot access requirements were specifically stricken from the law in order to get the bill passed.

While Florida and Georgia and Maryland have succeeded in enacting laws that call for statewide voting systems in the near future, much work remains to be done in order to avoid repeating last year's catastrophe of widespread disefranchisement, especially of minority groups. Many hope that the Congress will take the lead in election reform by establishing a nationwide policy that includes financial grants for the states to implement election reform. Yet, Congress may not pass comprehensive federal election reform that will ensure nationwide standardization. State legislatures need to take an honest look at all of the issues that arose out of the Florida election debacle and be prepared to pass legislation that leaves no vote uncounted.