Thanks to reforms undertaken after Bush’s 537-vote, no-recount victory over Al Gore, the Florida fiasco of 2000 couldn’t happen again. Could it?

Revisiting the scene of the crime

by Dan Kennedy

IF ELECTION NIGHT 2004 is anywhere near as close as it was four years ago, then all eyes will be on — you guessed it — Florida. The Sunshine State and its 27 electoral votes could be crucial to determining who will be the next president. And it’s as tight as ever: according to the most recent statewide poll, John Kerry leads George W. Bush in Florida by just one point, 47 percent to 46 percent, with Ralph Nader polling two percent. Fortunately, thanks to reforms undertaken after Bush’s 537-vote, no-recount victory over Al Gore, the Florida fiasco of 2000 couldn’t happen again. Could it?

Sadly, we regret to inform you that another dubious election outcome is not only possible, it’s also probable, unless Kerry wins and is able to make it stick. We’ve identified five reasons why Bush could take his brother’s state even if Kerry has more support. At the same time, there do not appear to be any extraneous factors that could help Kerry and/or hurt Bush. Ultimately, Bush may lose Florida, but make no mistake: it’s his — and Governor Jeb’s — to lose. Let us count the reasons.

1) Ex-felons are barred from voting in Florida. According to the advocacy group Right To Vote, Florida is one of just six states where anyone convicted of a felony is permanently barred from voting. The others are Iowa, Kentucky, Mississippi, Nebraska, and Virginia. (Iowa? Go figure.) For a variety of reasons, this disproportionately affects African-Americans: according to 2000 figures, 16 percent of black voting-age Floridians had felony records, as opposed to just seven percent of the population as a whole. And as we all know, more than 90 percent of African-American voters will side with Kerry and other Democratic candidates this November. Ex-felons in Florida can seek to regain their voting rights, but the process has been described as cumbersome and is rarely used.

As New York–based journalist Kevin Krajick wrote in a recent op-ed piece for the Washington Post, "Many disenfranchisement laws trace to the mid-1800s, when they were crafted to bar blacks with even minor criminal records from the polls." Krajick also noted that a study by the University of Minnesota found that Bush would have lost Florida to Al Gore by some 80,000 votes if ex-felons had been allowed to cast ballots. Thus Florida’s racist, discriminatory voter qualifications give Bush a significant head start over Kerry before anyone has cast a single ballot.

2) Florida officials keep bungling the list of ex-felons. As if it weren’t bad enough merely to bar ex-felons from voting, Florida has a history of wrongly labeling people as ex-felons, thus making them ineligible to cast ballots. Four years ago, a private company hired to wipe the names of ex-felons off the voting lists targeted some 8000 people by mistake. Though a corrected list was sent out before the election, it was unclear whether the corrections made it into the hands of all election officials. And that may have been a conservative estimate of how many people in predominantly minority neighborhoods were improperly disenfranchised (see "Don’t Quote Me," News and Features, December 21, 2000).

You’d think it couldn’t happen again — but it already has. Earlier this summer the state issued a list of some 47,000 potential ex-felons; county officials were told to verify the information before actually removing anyone from the voting rolls. Incredibly, state officials tried to keep the list a secret, but a Tallahassee judge forced them to release it. Among other things, it was learned that only one-tenth of one percent of the names on the list were Hispanic, even though Florida’s population is 20 percent Hispanic. (In Florida, "Hispanic" generally means "Cuban-American," a group that has traditionally leaned Republican.) The Miami Herald found that 2100 people listed as ex-felons were in fact eligible to vote. Of the 47,000 total, Democrats reportedly outnumbered Republicans by a three-to-one margin.

Embarrassed state officials threw out the list and said it wouldn’t be used. But they’ve got two and a half months to try again.

3) Voting machines could be this year’s hanging chad. In 2000, voters in African-American and poor neighborhoods generally cast their ballots by punch card, whereas those in more-affluent areas used modern optical-scanning systems that read paper ballots. According to an examination of the results by Slate, 15 of every 1000 punch-card ballots in counties that used the most outmoded counting machines registered no presidential choice, and were thus discarded; only three of every 1000 ballots were rejected by optical scanners. The result was a racially disproportionate error rate that favored Bush.

This time, punch cards have been replaced by modern voting machines in 15 urban (read: predominantly Democratic) counties, while the other 52 counties will continue to use optical scanners. The voting machines are being touted as the latest and greatest technology, but they’re proving controversial: according to news accounts, they don’t leave a "paper trail," making it impossible to conduct a recount if the machines fail. And fail they can. Last month, officials in Miami-Dade County admitted that voting records from the September 2002 gubernatorial primary — the first in which all voters used the touch-screen technology — had been permanently lost. Critics warn, too, that the machines are susceptible to fraud and error, and have urged voters to cast absentee paper ballots.

These problems may not come to pass, of course. But it would appear that, just as in 2000, a vote is more likely to be counted properly if the person who casts it lives in an optical-scan county. And those counties already lean Republican.

4) Florida state police are harassing elderly African-American voters. Twice last week and again this past Monday, New York Times columnist Bob Herbert leveled some pretty serious charges: that the Florida Department of Law Enforcement has dispatched state troopers to visit "elderly black voters in Orlando in a bizarre hunt for evidence of election fraud." The investigation — aimed at a get-out-the-vote campaign conducted during that city’s last mayoral election — is supposedly being conducted in response to allegations of fraud, even though a preliminary inquiry had already found there was nothing to it.

"For elderly African-American voters, who remember the terrible torment inflicted on blacks who tried to vote in the South in the 1950’s and 60’s," Herbert wrote, "the sight of armed police officers coming into their homes to interrogate them about voting is chilling indeed."

5) Provisional ballots are being unfairly rejected. After the 2000 mess, Congress passed a law mandating that anyone who showed up to vote and whose eligibility was called into question could cast a provisional ballot. Only later would it be determined if the ballot could be counted. Now it turns out that several states — Florida, of course, is among them — are tossing out provisional ballots if they are cast in the wrong polling place. This would clearly have a greater effect in transient, low-income areas that lean Democratic than in the solidly Republican suburbs.

Several state employee unions have filed suit to overturn that provision before the November election. As the New York Times put it in an editorial, "The wrong-precinct rule serves no legitimate purpose, and it denies eligible voters the right to vote.... At the very least, election officials who throw away ballots cast in the wrong locations must have a foolproof way of directing voters on Election Day to their correct polling places."

Earlier this month, it was announced that international observers from the Organization for Security and Co-operation in Europe will monitor the presidential election. According to London’s Independent newspaper, the group was invited by the State Department, goaded by 13 House Democrats.

The observers should have plenty to do. After what happened four years ago, it’s disheartening that the voting system in Florida is still such a mess — and still so heavily tilted toward the Republican machine.