2001 06 00 Chapter 3: Responsibility Without Accountability?

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The U.S. Commission for Civil Rights investigation into 2000 Presidential Elections' voter disenfranchisement. Chapter 3: Responsibility Without Accountability?
  6/10/15 3:33 PMChapter 3: Responsibility Without Accountability?Page 1 of 13http://www.usccr.gov/pubs/vote2000/report/ch3.htm Voting Irregularities in Florida During the 2000 Presidential ElectionChapter 3Responsibility Without Accountability?  In the first paragraph of the Declaration [of  Independence], is the assertion of thenatural right of all to the ballot: for how can the “consent of the governed” begiven, if the right to vote be denied? [1]Article I, section 1, of the Florida Constitution provides that “[a]ll political power is inherent in thepeople.”[2] The right to vote is the most obvious exercise of this inherent power. The Florida state electionlaws should be guided by this constitutional mandate. Further buttressing this constitutional mandate is theNational Voter Registration Act of 1993 in which Congress emphasized “the right of citizens of the UnitedStates to vote is a fundamental right [and] it is the duty of the federal, state and local governments to promotethe exercise of that right.”[3] State election laws should be drafted and interpreted in such a manner thatevery citizen’s right to vote is cherished and protected. Instead, there are several provisions of the Floridaelection law that appear to impede rather than foster this precious right.[4]Provisions impeding the right to vote include those that permit top government officials to plead an alleged“lack of authority” to evade any responsibility to ensure that elections are fairly and uniformly conducted.The governor of Florida claims moral authority over election matters but claims the legal authority rests withthe secretary of state. The secretary of state, who has obvious legal power, claims no practical authoritystemming from a lack of enforcement authority, limited power to promulgate administrative regulations, andshared constitutional authority with county supervisors of elections in overseeing elections. The supervisorsof elections have the constitutional authority to conduct elections, but maintain they are not given theresources necessary to ensure that every legal voter can exercise that right should he or she choose to vote. Inaddition, supervisors of elections, by default, perform responsibilities assigned by law to the governor and thesecretary of state. WHO'S IN CHARGE? Florida’s governor is the state’s chief executive officer who “shall take care that the laws be faithfullyexecuted.”[5] Florida’s secretary of state is the chief election officer and oversees the Division of Elections.[6] Each county has an elected supervisor of elections, except one.[7] Together, the secretary of  state and the county supervisors of elections preside over Florida’s elections. Governor John Ellis Bush When asked about his responsibilities to ensure the election laws of Florida were faithfully executed duringthe November 2000 election, Governor Bush testified before the U.S. Commission on Civil Rights that hehad no real legal authority over election matters except for certifying the election and serving as a member of the state canvassing board. He indicated that he recused himself from participating on the state canvassingboard because his brother was one of the presidential candidates.[8] Governor Bush testified that “governorshave the moral authority . . . to make sure that the laws, not only the state laws, but . . . also federal laws areupheld. . . .”[9] When asked what authority and responsibility he had regarding preparation for the 2000presidential election, Governor Bush testified that he had none and that “the secretary of state and the 67supervisors of elections were responsible for that, and they carried out their duties.”[10]  6/10/15 3:33 PMChapter 3: Responsibility Without Accountability?Page 2 of 13http://www.usccr.gov/pubs/vote2000/report/ch3.htm Under the Florida Constitution, the governor is charged with ensuring that “the laws be faithfullyexecuted,”[11] a responsibility Governor Bush apparently delegated to others with respect to elections.[12] Under Florida election law, the governor is also specifically empowered to “appoint special officers toinvestigate alleged violations of the election laws . . .”[13] Governor Bush testified that he had not appointedany officers to do any investigation of alleged irregularities surrounding the November 2000 election butwould “[i]f there was a reason to do so.”[14] As of the date of this report there is no indication that thegovernor has exercised this authority by appointing special officers to investigate the widespread allegationsof violations of the Florida election law.[15] Secretary of State Katherine Harris The Florida legislature was unequivocal and specific when it defined the responsibilities of the secretary of state in the Florida Election Code.[16] The secretary of state is obligated by Florida law to:obtain and maintain uniformity in the application, operation, and interpretation of the election laws;provide uniform standards for the proper and equitable implementation of the registration laws;actively seek out and collect the data and statistics necessary to knowledgeably scrutinize theeffectiveness of election laws;provide technical assistance to the supervisors of elections on voter education and election personneltraining services;provide technical assistance to the supervisors of elections on voting systems;provide voter education assistance to the public;coordinate the state’s responsibilities under the National Voter Registration Act of 1993;provide training to all affected state agencies on the necessary procedures for proper implementation of this chapter;ensure that all registration applications and forms prescribed or approved by the department are incompliance with the Voting Rights Act of 1965;coordinate with the United States Department of Defense so that armed forces recruitment officesadminister voter registration in a manner consistent with the procedures set forth in this code for voterregistration agencies;create and maintain a central voter file; andmaintain a voter fraud hotline and provide election fraud education to the public.[17]Despite these explicit statutory powers, Secretary of State Katherine Harris testified that the FloridaConstitution created an election system founded upon local control.[18] She testified, “[N]either I nor mystaff are authorized to direct the conduct of these supervisors of elections.”[19]Secretary Harris, detailing her official responsibilities, stated that within the framework provided by the  6/10/15 3:33 PMChapter 3: Responsibility Without Accountability?Page 3 of 13http://www.usccr.gov/pubs/vote2000/report/ch3.htm Florida Constitution and the laws of the state, “the Department of State is responsible for the qualification of candidates for state and federal office and for district offices where the district comprises more than onecounty; for campaign finance reporting for candidates who qualify with the division; and for maintaining acentral voter file.”[20] Secretary Harris characterized her authority over the administration of elections as“ministerial” and stated, “[W]e attempt to achieve uniformity in the interpretation of the election code, but weare without authority to direct the conduct of county supervisors of elections.”[21]It is obvious that the county supervisors do not have unilateral authority over the administration of electionsand that the secretary of state has substantial authority over the process. For example, the secretary of state isrequired to adopt rules establishing standards for voting systems, but the county supervisors are to establishwritten procedures to ensure the accuracy and security of voting systems and procedures used in theircounty.[22] The voting systems must be certified by the secretary of state, but decisions about which systemto use are made by the supervisors of elections.The secretary of state’s testimony before the Commission describing her authority over election matters as“ministerial” and, therefore, limited, is in sharp contrast to the position she took before the Supreme Court.The secretary of state’s view of her role as limited in election matters also seems to be in conflict with thelegal power given to her and as enunciated by the Supreme Court. Finally, her views expressed at theCommission hearing contrast with the power she wielded over election matters when she chose to exerciseher authority.In  Bush v. Gore ,[23]   the secretary of state, in arguing against further manual recounts, rather thandownplaying her authority over election matters as limited or merely ministerial, maintained that it was heroffice’s Division of Elections that was “charged with interpreting and enforcing the Florida ElectionCode.”[24] In effect, the secretary of state argued that because the legislature gave the secretary of state suchbroad authority over election matters, her office’s interpretations of the Florida election law should be givendeference.The Supreme Court repeatedly emphasized in  Bush v. Gore that the secretary of state has tremendousauthority over Florida election matters. “Importantly, the legislature has delegated the authority to run theelections and to oversee election disputes to the Secretary of State.”[25] “The legislature has designated thesecretary of state as the ‘chief election officer,’ with the responsibility to ‘[o]btain and maintain uniformity inthe application, operation, and interpretation of the elections law.’ ”[26] The Supreme Court agreed, findingthe secretary of state is the “state official charged by the legislature with ‘the responsibility to’ . . . obtain andmaintain uniformity in the application, operation, and interpretation of the election laws. . . .”[27]There is no doubt that the secretary of state has power over election matters. Indeed, the secretary of state’sactions over the past election demonstrate this authority. Her office issued binding mandates as to when votetotals were to be submitted, whether they could be amended after submission, and what would constitute“[a]n error in the vote tabulation” that could trigger a manual recount of the votes.[28]The Florida Election Code gives the secretary of state broad authority over election matters. However, thesecretary of state has the discretion to exercise this authority. Jim Smith, co-chairperson of the Governor’sSelect Task Force on Election Procedures, Standards and Technology, and former attorney general andsecretary of state for Florida, provided examples of acting in a proactive manner to attempt to ensure that allcitizens of the state could be in a position to vote. His number one priority as secretary of state was electionreform.[29] While in office, he pushed for initiatives on voter education and voter registration, e.g., same dayregistration.[30]  6/10/15 3:33 PMChapter 3: Responsibility Without Accountability?Page 4 of 13http://www.usccr.gov/pubs/vote2000/report/ch3.htm There is no evidence that in preparation for the November 2000 election the secretary of state focused onsimilar initiatives. Rather, the evidence leads to the disturbing conclusion the secretary of state chose toexercise authority to ensure the vote count was discontinued and the vote was canvassed after the election,but did little to ensure that eligible Floridians were able to access the polls, be permitted to vote, or have theirvotes counted.[31] Division of Elections When asked about her responsibilities as chief election officer, Secretary Harris testified that she delegated,in a standard delegation authority letter, her statutory duties as chief election officer to the director of theDivision of Elections.[32] She stated:I have delegated to Mr. Roberts [director of the Division of Elections] a high level of authority to operate the Division of Elections and to implement the statutory dutiesof the Division of Elections and the chief election office. Historically and at present,the day-to-day responsibilities for implementing the duties outlined in the FloridaElection Code are assumed by the elections division director.[33]To meet his or her statutory duties, the secretary of state, through the Division of Elections, is to providestatewide coordination and direction for interpretation and enforcement of election laws. The Division of Elections issues advisory opinions to supervisors of elections and prescribes rules and regulations in theFlorida Administrative Code.[34] In practice, the Division of Elections carries out the secretary of state’sstatutory responsibility as chief election officer.The ultimate responsibility for ensuring that the secretary of state’s statutory obligations are fulfilled remainswith the secretary of state and cannot be delegated. At the Tallahassee hearing, Commission ChairpersonMary Frances Berry asked, “You understand that you are the one that’s responsible? Delegation takes noresponsibility off your shoulders,” to which Secretary Harris responded, “I couldn’t agree more.”[35] County Supervisors of Elections The county supervisors of elections’ statutory responsibilities are specified throughout the election code.[36]Unlike the secretary of state, county supervisors’ statutory duties are not set forth in one statute. Countysupervisors are guided by various statutes in the election code and opinions issued by the Division of Elections. Opinion DE 98-11 entitled “Voting Systems and Standards for Ballots Used with Such Systems”advises that supervisors are allowed to use their discretion on matters not covered by the election code or theadministrative code, as long as their elections are conducted in an efficient manner with “controls,procedures, and audit parameters” in place so the election is “accurate, fair, and capable of beingreconstructed in the face of a protest or contest.”[37] County supervisors may also enact election-relatedcounty ordinances provided the ordinances do not conflict with the election code.[38]Several supervisors of elections testified before the Commission about their responsibilities concerning theadministration of elections and the actions they took to fulfill their duties. Linda Howell of Madison Countytestified that “the authority for the proper conduct of the elections in our county rests solely on me . . . I havea grave responsibility and duty to every citizen because I am employed by them, and this responsibility istaken seriously by me and I believe it’s taken seriously by the other 66 supervisors in the state.”[39]Although state law charges the secretary of state to “[p]rovide voter education assistance to the public,”[40]
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