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U.S. COMMISSION ON CIVIL RIGHTS

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

OF THE

COMMITTEE ON THE JUDICIARY

HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

APRIL 11, 2002

Serial No. 73

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://www.house.gov/judiciary

(II)

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

JOHN 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

JOHN N. HOSTETTLER, Indiana

MELISSA A. HART, Pennsylvania,

Vice Chair

LAMAR SMITH, Texas

[VACANCY]

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

(III)

C O N T E N T S

APRIL 11, 2002

OPENING STATEMENT

Page

The Honorable Steve Chabot, a Representative in Congress From the State

of Ohio, and Chairman, Subcommittee on the Constitution ............................ 1

The Honorable Jerrold Nadler, a Representative in Congress From the State

of New York, and Ranking Member, Subcommittee on the Constitution ....... 1

WITNESSES

Ms. Abigail Thernstrom, Commissioner, U.S. Commission on Civil Rights

Oral Testimony ..................................................................................................... 6

Prepared Statement ............................................................................................. 8

Mr. Les Jin, Staff Director, U.S. Commission on Civil Rights

Oral Testimony ..................................................................................................... 18

Prepared Statement ............................................................................................. 20

Mr. Hilary O. Shelton, Director, NAACP Washington Bureau

Oral Testimony ..................................................................................................... 25

Prepared Statement ............................................................................................. 27

Mr. Thomas Schatz, President, Citizens Against Government Waste

Oral Testimony ..................................................................................................... 29

Prepared Statement ............................................................................................. 31

APPENDIX

STATEMENTS SUBMITTED FOR THE HEARING RECORD

The Honorable Steve Chabot, a Representative in Congress From the State

of Ohio, and Chairman, Subcommittee on the Constitution ............................ 51

The Honorable Jennifer C. Braceras, Commissioner, U.S. Commission on

Civil Rights ........................................................................................................... 53

MATERIAL SUBMITTED FOR THE HEARING RECORD

Miscellaneous documents submitted by the Honorable Abigail Thernstrom,

Commissioner, U.S. Commission on Civil Rights .............................................. 60

Miscellaneous documents submitted by Mr. Les Jin, Staff Director, U.S. Commission on Civil Rights ........................................................................................ 177

(1)

U.S. COMMISSION ON CIVIL RIGHTS

THURSDAY, APRIL 11, 2002

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON THE CONSTITUTION,

COMMITTEE ON THE JUDICIARY,

Washington, DC.

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.

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.

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.

2

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.

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.

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.

3

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.

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.

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

4

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.

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.

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.

5

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.

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.

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

6

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.

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.

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.

7

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.

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.

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.

8

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.

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 fact—that

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.

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.

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

part—in theory.

9

1 USCCR transcript, February 16, 2001, p. 30:

Commissioner THERNSTROM: It is correct that I had an agenda, but all the witness—I 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. 2 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. 3Seelye, Katharine, New York Times, March 9, 2001, p. A14.

4 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.’’

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.

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

Continued

In practice, however, it hurts more than it helps. It sullies the drive for civil

rights—taints 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 11–12 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 16.1 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.2

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, 2001.3

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.4 Ultimately, stories on the reVerDate 11-MAY-2000 13:59 Jul 17, 2002 Jkt 000000 PO 00000 Frm 00013 Fmt 6633 Sfmt 5602 G:\WORK\CONST\041102\78674.000 HJUD2 PsN: HJUD2
10

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. 5Getler, Michael, The Washington Post, ‘‘When Leaks Backfire,’’ June 10, 2001. 6 USCCR transcript, September 14, 2001, pp. 50–55. The hotline is not mentioned in the discussion and not voted on.

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.

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.

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 now—so 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

port 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.’’ 5

• 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.6 Moreover, there had been no discusVerDate 11-MAY-2000 13:59 Jul 17, 2002 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 5602 G:\WORK\CONST\041102\78674.000 HJUD2 PsN: HJUD2
11

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—— 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 on—maybe 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’t— you 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 like—just because they’re from—so 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.

Commissioner EDLEY: Right.

Chairperson BERRY: Because then people can do anything they want to almost—almost 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. 7The 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.’’ 8Sergent, Jennifer, ‘‘Civil Rights Commission PR Expenditures Questioned,’’ August 15, 2001.

sion of the matter at any Commission meeting. I include the text of the transcript and the discussion of this issue.

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.7

On August 15, 2001, Scripps Howard published an article stating that the Com- mission 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.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

12

9 USCCR transcript, November 15, 1996

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.’’ 10 USCCR Transcript, March 8, 2002, pp. 59–68.

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.

Yes?

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, actually—and

my special assistant had spent some time—preparing 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.

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 was—who 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 would—unless 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?

Staff Director JIN: And the situation was that a number of things happened sequentially so

that—when we were going through it, we thought that the person would—we knew there were

some major things, but we didn’t think that they would last this long. And it just kept on piling

up.

unit has become a very expensive clipping service—nothing 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.

• 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 meetings—one in 1996 and another

in 1999—at which commissioners protested this practice on the record.9 In spite of

assurances by the chairman and memoranda requesting an explanation, this practice continues.

On March 8, the chairman justified the last minute change by stating that the

briefing was being conducted by a ‘‘speaker’’ 10 even though the agenda and the FedVerDate 11-MAY-2000 13:59 Jul 17, 2002 Jkt 000000 PO 00000 Frm 00016 Fmt 6633 Sfmt 5602 G:\WORK\CONST\041102\78674.000 HJUD2 PsN: HJUD2
13

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 all—or 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.

The staff after that—there 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.

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?

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 transcript—read 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.

Now, if you object—— Commissioner BRACERAS: Oh, I don’t object at all. I don’t know why—I 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 actually—no, 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——

Continued

14

Chairperson BERRY: Do you——

Commissioner BRACERAS: Excuse me.

Chairperson BERRY:—have a motion, Commissioner Braceras?

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——

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 really—there seems to be—I 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.

And I just—I 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’t—and 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? 11 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.’’

eral 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.

• 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.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

15

12October 12, 2001, USCCR, p. 25. 13 ‘‘Sins of the Commission,’’ Washington Post, February 11, 2002; Page A24. 14 USCCR Transcript, June 11, 2001, pp. 130–133.

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 by—no, 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.

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 Commissioners—just so we can get out of this—this 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.

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.

Continued

ought to be proud that we’re doing this rather than worrying about whether

it’s helping anybody.’’ 12

• 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 course—a 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.’’ 13

Fear of input from affected parties in Florida, from scholars outside the Commission, and from Commissioners themselves drove a process that lacked even barebones integrity. And a corrupt process insured a worthless result.

I would like to speak briefly 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 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.14

16

Commissioner EDLEY: Whatever the transcript says I said.

Chairperson BERRY: All in favor indicate by saying aye.

(Commissioners vote aye.)

Chairperson BERRY: So ordered. 15 USCCR transcript. April 13, 2001. pp. 4–6.

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 routinely—does 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

know—any Commissioner wants to know, to their special assistant if they have one. If not, to

them, if they prefer.

• 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 ‘‘dayto-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.

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.15

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.

17

16 USCCR transcript, March 8, 2002, pp. 107–112.

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.

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: I—I——

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 is—I 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.

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 personal—other 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.

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.

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 forwardlooking point, that we’ve had this discussion about going to Florida for several months now. And

to the extent that—as 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

Continued

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’’ 16 and the staff director was unable or unwilling to answer either.

18

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.

Mr. Jin.

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.

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.

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:

19

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.

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 provided—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, operating procedures, and changes—and charges of financial

mismanagement.

I emphasize that these GAO—I 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.

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

20

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 over—the

commissioners disagree over commission policies, practices, and

procedures.

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

I. INTRODUCTION

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.

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

21

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.

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.

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.

• In March 1999, as a result of recommendations made in a Commission report

titled Helping Employers Comply with the ADA, the EEOC issued enforceVerDate 11-MAY-2000 13:59 Jul 17, 2002 Jkt 000000 PO 00000 Frm 00025 Fmt 6633 Sfmt 6621 G:\WORK\CONST\041102\78674.000 HJUD2 PsN: HJUD2
22

ment 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.

III. IMPROVEMENTS

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 flatlined 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.

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

23

costs and responsibilities to operate in accordance to all the rules and requirements

applicable to all federal agencies.

V. CONCLUSION

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.

ATTACHMENT

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.

• 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:

• 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

24

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.

• 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)

• 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.

• 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 ComVerDate 11-MAY-2000 13:59 Jul 17, 2002 Jkt 000000 PO 00000 Frm 00028 Fmt 6633 Sfmt 6621 G:\WORK\CONST\041102\78674.000 HJUD2 PsN: HJUD2
25

mittee 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.

Mr. CHABOT. Thank you very much.

Mr. Shelton.

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.

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.

26

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.

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 lowincome, 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, innercity African-American men. This report has been used extensively

27

by the NAACP in our efforts to address many of the issues that it

raised.

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.

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.

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.

28

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.

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.

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.

Mr. CHABOT. Thank you, Mr. Shelton.

Mr. Schatz.

29

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.

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 described—began 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.

There are also—there’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.

30

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.

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:]

31

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.

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;

• 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 guidance—the Administrative Manual—was 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 funds—

taxpayer hard-earned dollars—were being used. It further concluded that these deficiencies made the commission vulnerable to ‘‘misuse of its resources’’ and that a

32

‘‘lack of attention to basic requirements applying to all federal agencies, such as upto-date descriptions of operations and internal guidance for employees, reflects poorly on the overall management of the commission.’’ 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 re- marks 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.’’ 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.

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

33

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.

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;

• 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.

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.

34

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 do—the commission

to do to stop depriving minority commissioners the basic tools to

participate fully in the work of the commission?

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 example—and

this is just an example; I think there were a number of questions

that were—comments 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.

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.

35

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.

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 in—I think that my

long—the long testimony that I’ll be submitting spells out with— in 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 am—I 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.]

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

36

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.

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.

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.

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

37

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 any—excuse 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?

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 mistakenly—which 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.

The bottom line is you’re absolutely right. To suggest that we

blame those people—they were not prepared—they were not provided the ample opportunity to cast a vote that could be counted—

is 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

findings—reasonable 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?

38

Mr. SHELTON. No, sir. I think the results of the study that was

done by the U.S. commission was extremely accurate, extremely

helpful.

Mr. NADLER. That’s not what I—I 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 question—I 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’s—you’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.

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 on—I’m sorry. I

apologize.

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 the—that you—or 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.

Mr. NADLER. Thank you.

39

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 the—well, 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 point—and 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?

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 fully—we 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 by—the majority of the commission determines the activity of the commission and the staff.

Mr. JIN. As long as it’s consistent with the—with statutes and

other rules, sure.

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.

40

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——

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.

Mr. HOSTETTLER. Turning to Commissioner Thernstrom, that

was the day that you requested that your staff—I guess my question—it’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 that—

not only here but elsewhere—is 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.

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.

41

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 responsibility—fulfilling 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?

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?

Mr. JIN. The—in 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 you—in regard to McKinney and Associates—and I don’t know this to be the case, so it’s just an open question—did 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?

Mr. JIN. I had no prior dealings with them.

42

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 because—when

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.

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?

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 this—

I 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, A–76 and others,

that encourages privatization when appropriate.

43

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.

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

one—I appreciate—I do have one question for Commissioner

Thernstrom.

Commissioner, you stated, I believe, that when—and certainly—

I don’t remember if you stated it, but it was certainly in your written statement that when—that 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?

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 legal—and 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 should—this 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.

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, including—I mean, we are told specifically,

44

when we take office as Members of Congress, our handbook—or

whatever they give us, whatever they call it, the list of rules and

regs—that 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 you—because 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——

Mr. NADLER. And if not, why not?

Ms. THERNSTROM. Well, I submitted it to a number of attorneys.

But, no, I can’t—I 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.

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 is—

I 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

the—and 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.

Mr. Staff Director, is that true? Has all the data not been allowed to be looked at?

45

Ms. THERNSTROM. Oh, well, now, there’s—it has—it magically—

some of it magically appeared way after I had—the 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.

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.

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.

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——

46

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.

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. When—what happened was

back in the previous report, Dr. Berry had cited a—somebody 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.

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 had—we did have

a meeting with them.

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 the—I 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.

47

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.

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 is—the question of process and the

question of substance is inseparable and that if you don’t get the

process right—and it’s true in the U.S. Senate, it’s true in the Florida hearings, it’s true wherever, you know, you look—that 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.

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 not—is 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

48

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.

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 commission—and 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

part—in a minor way—part 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 were—he 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 you—I 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?

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 heard—well, 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.

But I thank you very much, Mr. Chairman and Mr. Nadler, for

your kindness.

49

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 been—there 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?

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 purpose—see, that’s—we have an oversight hearing and we’re not really involved in a lot of—like 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.

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 November—November 28th of last year

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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 granted—and you

talked about obviously the title of the organization you represent

is Citizens Against Government Waste.

Do you—in 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.

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.

[Whereupon, at 2:40 p.m., the Subcommittee was adjourned.]

(51)

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.

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 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.

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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:

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 finding—that there was ‘‘widespread disenfranchisement and denial of voting rights’’ in Florida’s 2000 presidential election—does 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.

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 verdict—long 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.

Most recently, a request for basic data to which we—and indeed, any member of

the public—were 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 machinereadable 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 exist—

that the data as he organized it for purposes of analysis was literally unavailable.

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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.

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 outcome—use 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.

SUMMARY

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.

(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.

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

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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.

(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 explore—or even mention—this 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.

Dr. Lichtman’s precinct analysis is just as vulnerable to criticism as his countylevel 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 officials—particularly 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 Democrat—the 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 maVerDate 11-MAY-2000 13:59 Jul 17, 2002 Jkt 000000 PO 00000 Frm 00183 Fmt 6601 Sfmt 6621 G:\WORK\CONST\041102\78674.000 HJUD2 PsN: HJUD2
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chinery 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

group—people of Hispanic origin. The analysis in the Commission’s report thus excluded more Floridians of minority background than it included.

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.’’

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.

IV. 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.

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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 rates—found nearly everywhere in the country—would 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 properly—as regrettable as they are—are 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.

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 opportunity—an 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.

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.

• 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 them—to 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 report—one less day

than three major newspapers had—before 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.

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.

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1 Report, 154.

2 Report, 18.

3 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? 4Martin Merzer, The Miami Herald Report: Democracy Held Hostage (New York: St. Martin’s

Press, 2001), 194 5 Ibid., 195.

6 Ibid., 230–231. 7 Richard A. Posner, Breaking the Deadlock: The 2000 Election, the Constitution, and the

Courts (Princeton, N.J: Princeton University Press, 2001), 61.

Disenfranchisement is not the same as voter error.

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.’’ 1 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.’’ 2

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.3 (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.)

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 candidate—if any—voters 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.4 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.’’ 5

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 half—46.2 percent—had no

markings at all for president.6 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.7 If so, that would account for 56 percent of all the undervotes in Miami-Dade.

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8 Report, 1.

9 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. 10 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.

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 socalled ‘‘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.’’ 8 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.

Some of the 180,000 rejected ballots may have the result of machine error, of

course—but very few. Machine error, according to experts who have studied it, is

rare, involving at most 1 in 250,000 votes cast.9 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.10 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 majorVerDate 11-MAY-2000 13:59 Jul 17, 2002 Jkt 000000 PO 00000 Frm 00188 Fmt 6601 Sfmt 6621 G:\WORK\CONST\041102\78674.000 HJUD2 PsN: HJUD2
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11W.G. Robinson, ‘‘Ecological Correlations and the Behavior of Individuals,’’ American Sociological Review, vol. 15 (June, 1950), 351–357. 12D.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. 13Transcript of June 8, 2001 meeting, 42.

ity report are at least pretty good approximations of reality. There are many reasons

to doubt that they are.

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 appealing—but 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.11 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.

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.12 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 bracket—but 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 countylevel or precinct-level averages.

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.13 That is

certainly true. But he went on to claim that the ‘‘more advanced statistical proceVerDate 11-MAY-2000 13:59 Jul 17, 2002 Jkt 000000 PO 00000 Frm 00189 Fmt 6601 Sfmt 6621 G:\WORK\CONST\041102\78674.000 HJUD2 PsN: HJUD2
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14The explanation is that immigrants tend to be attracted to the richer states—California 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. 15D. 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),

1518–1523. 16 Report, 21.

dures’’ 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.14 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.15

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 .50.16 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.

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

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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 significance—not 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.

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 nonresponsive 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.

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 refused—and still refuses—to 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.

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 variVerDate 11-MAY-2000 13:59 Jul 17, 2002 Jkt 000000 PO 00000 Frm 00191 Fmt 6601 Sfmt 6621 G:\WORK\CONST\041102\78674.000 HJUD2 PsN: HJUD2
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17 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. 18 National Center for Education Statistics, NAEP 1998 Reading Report Card for the Nation

and the States, NCES 1999–500 (Washington, D.C.: U.S. Department of Education, 1999), 70. 19 National Center for Education Statistics, Literacy in the Labor Force: Results from the National Adult Literacy Survey, NCES 1999–470 (Washington, D.C.: U.S. Department of Education, 1999), 57. 20 NAEP 1998 Reading Report Card, 260, and data from the NAEP website. 21 Report, 22; Lichtman Report, 6. 22Posner, Breaking the Deadlock, 81.

ance. 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 Americans—but only 14 percent of whites—ranked 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.’’ 17

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.18 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.19

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.20 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.’’ 21

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.’’ 22

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23 Report, 37. 24 Report, 34. 25 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.

They have wide confidence intervals—an 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 ballots—nearly 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. 26Frank J. Murray, ‘‘Florida’s Black Voter Turnout Grossly Overstated,’’ Washington Times,

July 11, 2001.

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 complete—that it gave no vote or too many votes for president, for example.23 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.

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.’’ 24

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.25

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

1996.26 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.

190

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.

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 1–4), 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.

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 30–39 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.

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

191

27Transcript of June 8, 2001 Meeting, 44.

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 accurate—and we repeat the caution that they too are open to serious

question—we 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.

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 interest— in 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.’’ 27 This is

a very curious statement, since the report’s best sound bite—that blacks were nine

times as likely as nonblacks to cast ballots that were rejected—is a statement about

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28 Ibid, 44.

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.

Instead of considering the ratio of estimated ballot spoilage for black and nonblack voters, Dr. Lichtman chose to look at percentage point differences. The estimated difference for the state as a whole was 12.8 points (14.4–1.6); 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.28 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.

But which officials were responsible for the conduct of elections in Florida’s con- stitutionally 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

rate—by +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?

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 variable—

whether 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

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29 Report, 141.

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 technology—the 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.

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!

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.’’ 29 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 group—people of Hispanic origin.

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 popVerDate 11-MAY-2000 13:59 Jul 17, 2002 Jkt 000000 PO 00000 Frm 00197 Fmt 6601 Sfmt 6621 G:\WORK\CONST\041102\78674.000 HJUD2 PsN: HJUD2
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30 U.S. Census Bureau, Profiles of General Population Characteristics, 2000 Census of Population and Housing: Florida, May 2001, Table DP–1. 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. 31 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.

ulation. But the state had 2.7 million Latinos, almost 17 percent of its population.30

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.31

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 background—quite a lot more—than 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.

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.

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 balVerDate 11-MAY-2000 13:59 Jul 17, 2002 Jkt 000000 PO 00000 Frm 00198 Fmt 6601 Sfmt 6621 G:\WORK\CONST\041102\78674.000 HJUD2 PsN: HJUD2
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lot. 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:

• 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.’’

• 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 describVerDate 11-MAY-2000 13:59 Jul 17, 2002 Jkt 000000 PO 00000 Frm 00199 Fmt 6601 Sfmt 6621 G:\WORK\CONST\041102\78674.000 HJUD2 PsN: HJUD2
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ing election-day problems, they did not point to what the majority report calls a

‘‘disturbing trend of disenfranchisement.’’

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

required—but was denied—assistance 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.

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 facility—for 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.’’

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

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32 John R. Lott, Jr., ‘‘Documenting Unusual Declines in Republican Voting Rates in Florida’s

Western Panhandle Counties in 2000,’’ unpublished paper, May 2001.

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.32 The majority’s lack of interest in exploring this issue suggests

that its research was shaped by its preconceptions and political predispositions.

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.

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.

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5. 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.’’

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.

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 gun—unmistakable 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 diluVerDate 11-MAY-2000 13:59 Jul 17, 2002 Jkt 000000 PO 00000 Frm 00202 Fmt 6601 Sfmt 6621 G:\WORK\CONST\041102\78674.000 HJUD2 PsN: HJUD2
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tion 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.

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.

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

questions—namely, 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 federallymandated 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.

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.

200

33Stan Simpson, ‘‘Report Inspires Gore Aide,’’ Hartford Courant, June 11, 2001. 34 ‘‘Unfair, Again,’’ The Economist, June 9, 2001.

More voter education is clearly needed—a 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.33 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.

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

hearings—that 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.’’ 34 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.

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

201

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 .

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 dayto-day operations of the Commission, she herself—as Chair—must 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.

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

felonies—in 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.

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35Merzer, Miami Herald Report, 105.

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.

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

mistake—which 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 whites—–8.7 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.

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 wronglypurged 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.’’

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 voters—of all ethnic and racial groups,

but particularly blacks—were 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 opposite—that election officials were mostly permissive, not obstructionist, when unregistered voters presented themselves.35

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36Palm Beach Post, ‘‘Felon Purge Sacrificed Innocent Voters,’’ May 27, 2001.

The Palm Beach Post conducted its own extensive research into the problems with

the flawed exceptions list.36 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.

• 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.

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 singlemindedly 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

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hearings pertaining to how these issues created possible voter disenfranchisement

in Florida.’’

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.

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.

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.

205

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.

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

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

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37Transcript of United States Commission on Civil Rights meeting, Washington, D.C., June

8, 2001, 46. 38<http://www.american.edu/cas/faculty.shtml#HISTORY. WMA>.

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.

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.’’

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.’’ 37 At the time, the American University web site identified him as a ‘‘consultant to Vice-President Albert Gore, Jr.’’ 38

His partisan commitment was evident in his media appearances throughout the

campaign and the period of post-election uncertainty.

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 open—

even ‘‘skeptical’’—mind, in fact, evidence suggests the contrary. As early as January

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39Transcript of U.S. Commission on Civil Rights hearing, Tallahassee, Florida, January 11,

2001.

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.’’ 39 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.

CONCLUSION

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.

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 report—which was absolutely central to the Commission’s report—was 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.

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

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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.

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.

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 estiVerDate 11-MAY-2000 13:59 Jul 17, 2002 Jkt 000000 PO 00000 Frm 00212 Fmt 6601 Sfmt 6621 G:\WORK\CONST\041102\78674.000 HJUD2 PsN: HJUD2
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mate 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 exam- ined 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 counties—Broward

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.

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 ‘‘nonblacks’’ 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

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 cases—precincts 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.

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1 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.

Perhaps most important, even his extreme case analysis—which clearly exaggerates differences—does 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.

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.’’ 1 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.

Dr. Lichtman maintains that his regressions disprove that hypothesis. He claims

to have measured the effect of literacy by using two county-level measures—the 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 above—that 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.

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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.

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.

b. That leaves voter error. Dr. Lichtman apparently believes—or at least would

like us to believe—that 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.

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

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the supervisor of elections, another new variable—the 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 elections—the only ones in a position to do anything to discourage voters or deface ballots—were 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.

V. CONCLUSION

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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