With another tight presidential election right around the corner, the last thing anyone wants is a repeat of the 2000 Florida ballot fiasco — hanging chads and accusations of disenfranchised minorities.
But in a recent triumph for open records advocates, a flawed list of potentially ineligible Florida voters that could have wrongly prevented thousands from voting became public after a public access legal battle.
In May, Cable News Network LP, LLLP — better known as CNN — requested access to a list of Florida voters who would be disenfranchised because of felony convictions, multiple registrations or death. In 2000, a similar list was used that erroneously prevented thousands from voting, including a large number of African-Americans, who traditionally vote Democratic. President George W. Bush won Florida by 537 votes.
Knowing a clerical mistake could again influence a presidential election that might come within a similarly narrow margin, CNN decided to aggressively pursue the records.
Under Florida law, CNN would have been able to view the list at the Florida Division of Elections office but could not have taken notes or made copies of it. The law afforded these privileges only to government officials, political parties or candidates.
CNN, along with local and national media organizations, filed suit against the Division of Elections for complete access to the list. The court ruled the restrictive provisions for copying, etc., unconstitutional, and the list became public.
Chris Davis, projects editor for the Sarasota (Fla.) Herald-Tribune, one of the first newspapers to discover mistakes in the list, said the list contained a disproportionately small number of Hispanic voters, who traditionally tend to vote Republican.
“People who classified themselves as Hispanics were almost nonexistent on that list,” Davis said.
Within days of these discoveries, Florida Secretary of State Glenda Hood scrapped the list and requested the Governor’s Inspector General’s Office, now known as the Office of Audit & Compliance Review, examine its creation to determine how the mistakes came about, said Jenny Nash, a spokesperson for Hood.
Nash said the list, created by the Florida Division of Law Enforcement, matched voter registrations with law enforcement databases.
Combining these databases caused the problems.
For example, since a “Hispanic” entry is documented differently between the two agencies — race is not a required field on voter registrations — Nash said that Hispanics appearing to be left off the list could simply be labeled as another race.
“A lot of it depends on how they filled out their voter registration forms and how they were classified by FDLE,” she said.
Nash said more would be known once the audit is complete.
Meanwhile, Davis and his colleagues continue to examine the list.
“We’ve done a lot of reporting since then on why they didn’t catch that error, and I can’t tell you that we’ve nailed down an exact reason,” he said.
Barbara Petersen, president of the Florida First Amendment Foundation, doesn’t see any conspiracies behind the mix-up.
“I don’t think it was intentional,” she said. “If it was, we’ve got the biggest conspiracy in American history.”
Sean Holton, assistant managing editor for metro news for the Orlando Sentinel, thinks it resulted from poor administration. He said there had been warnings to the state that the list could have been flawed.
“There’s no evidence of (vote tampering),” Holton said. “There is plenty of evidence of incompetence and sloppy oversight in how it was put together.”
So why was the state so adamant about protecting something that could possibly take away the right to vote?
And why were public officials free to do with the list as they pleased but others were not?
David Bralow, an attorney representing the Florida First Amendment Foundation in the case, said that the Florida law was based on fear of the list being used as a marketing tool.
“I guess it was justified by the idea that public officials would not use the list for commercial or marketing purposes or in some way to embarrass the people on the list, which really doesn’t make any sense,” he said.
He argued that politicians could use it to market themselves as candidates.
“If a newspaper would have become a Political Activist Committee, it could have gotten the list,” he said.
Petersen said the motivation behind allowing political candidates access to voter lists is to make it easier for them to get information about their constituents. Preventing others from viewing lists cuts down on negative messages aimed at their constituents, Petersen said.
She doesn’t understand how a person’s right to privacy from marketers could possibly be more compelling than their right to vote, Petersen said.
“Forget that there is no right to privacy in a public record, but it was like they lost sight of the real issue,” she said. “And that might just have been bureaucratic protectionism. I don’t know. There is nothing more critical than the right to vote.”
While Florida might seem more prone to voting-related problems, the penchant for that depends on each state’s election laws.
For example, Florida is a state in which convicted felons are not allowed to vote – unless they get clemency and their voting rights are restored.
“You have to know what the legal nature of the various other state statutes are to see how it plays out,” Bralow said. “Anything can happen.”
Meanwhile, Nash argues it’s too soon to tell if this list would have caused major problems in Florida. She said provisions are in place that would help prevent people from becoming wrongfully disenfranchised.
Unlike in 2000, each election supervisor will be required to verify the status of any person who has been listed “ineligible” instead of simply following the list without question, Nash said.
Also, if someone believed they were being turned away without merit, he or she could cast a “provisional ballot,” which would be counted after their right to vote was confirmed, Nash said.
But Petersen said democracy would have clearly suffered without the list made public.
“(The election) would have been flawed,” she said, “and it would have been a travesty that again we didn’t learn our lesson from four years ago when Florida was the laughing stock of the world, and we again (erroneously) refused people the right to vote.”
Davis offered a similar view but also acknowledged that new provisions would probably have protected some.
“In the very least, the FOI laws gave the public the ability to see the potential flaws and to see that this could have been a problem had the list gone forward,” he said.
Holton said public officials must realize open records laws are necessary, and they should not try to hide from them.
“The public records laws are not just there to pester government officials,” he said, noting that open records not only help the public but also help government officials do their jobs better.
Petersen put it to government officials to be more responsible.
“Our (state) legislature needs to be more aware of constitutional requirements and take them more seriously,” she said. “Whenever they want to place any limitation on that right, they need to do it with deliberations and attention to the constitutional standard.”
And Petersen urged the media to avoid becoming complacent about government secrecy.
“Put your money where your mouth is and challenge government when it does something that we think is not right,” she said.
Davis said stories resulting from the battle for the list help reaffirm in a positive way the media’s role as watchdogs.
“I think it’s been a pretty amazing example of why it’s important to have access to government documents,” he said. “The errors would never have been found. There’s a real danger that I think we sometimes forget in allowing government to be the only real entity that governs itself. That’s what journalists do, and in this case it worked.
Ryan Heath is the 2004 Pulliam /Kilgore Intern
