DRAFT REPORT 

Voting Irregularities in Florida During the 2000 Presidential Election

(Approved by the Commissioners on June 8, 2001)

Chapter 6

Accessibility Issues

The right to vote is not only a sacred testament to the struggles of the past. It is an indispensable weapon in our current arsenal of efforts to empower those who have traditionally been left out.[1]

After the November 7, 2000, election, newspapers were plastered with headlines about the complaints of Americans alleging their ability to vote was delayed, blocked, or otherwise impeded. In the aftermath of the election, at least one lawsuit was filed on behalf of a civil rights group[2] and Governor Jeb Bush appointed a task force, which recommended sweeping reforms in election machinery.[3]

A large of number of Floridians were denied the right to vote during the past presidential election. Some voting rights experts reported that there were more complaints in Florida than any other state during the election.[4] A disproportionate number of Florida voters excluded from the election process are racial and language minorities who faced an array of problems.[5]

The grievances voiced by Floridians at the Commission’s hearings on Election Day Irregularities held in Tallahassee and Miami included inaccessible polling places for people with disabilities and the inability to receive language assistance. This chapter focuses on Accessibility—the physical barriers and language barriers that disenfranchised Florida voters.

SPECIAL NEEDS ASSISTANCE                          

The Voting Rights Act of 1965 and its subsequent amendments are designed to ensure every citizen entitled to vote can both register to vote and have access to his or her polling site—both physical accessibility and ballot accessibility. Physical accessibility includes not only accessible entrance into a voting precinct, but physical access to a polling booth. Ballot accessibility includes ballots that do not discriminate against blind or visually impaired individuals as well as individuals who are unable to read English. The Commission’s hearings in Florida included testimony from Floridians with disabilities and of limited English proficiency, contending they were disenfranchised in the November 2000 election because their precincts were not accessible.[6]

ACCESS TO POLLING PLACES FOR PEOPLE WITH DISABILITIES

In 1984, Congress passed the Voter Accessibility for the Elderly and Handicapped Act (VAEHA), which requires that all polling places be physically accessible to voters with disabilities.[7] When a polling place is not accessible, the polling place must be relocated or made temporarily accessible.[8] If neither of these options is achievable, election officials might be allowed to employ an alternate method, such as curbside voting.[9] Specifically, the statute provides that

(a) within each State … each political subdivision within each State … responsible for conducting elections shall assure that all polling places for Federal elections are accessible to handicapped and elderly voters.[10]

The statute required the Federal Election Commission (FEC) to report to Congress “no later than December 31 of each even-numbered year … the number of accessible and inaccessible polling places in such State on the date of the preceding general federal election, and the reasons for such inaccessibility.” The FEC was only required to file these reports for a “period for 10 years beginning in … 1984.”[11] The FEC fulfilled this duty, collecting data through self-reporting by local jurisdictions. The FEC’s final report in 1992 asserted that 86 percent of the polling places in the United States were physically accessible to individuals with disabilities seeking to exercise their right to vote.

Disability advocacy groups, routinely hearing from their constituents, were skeptical of these numbers and have challenged these numbers, conducting their own surveys to determine compliance with VAEHA. In fact, a recent report titled Voters Denied Equal Access at the Polls[12] found numbers startlingly different from those of the FEC. Voters Denied found that “voters with disabilities frequently encountered physical accessibility problems at their polling places.”[13] The report noted that independent surveys and court cases suggest that potentially 40 percent of polling places “continue to pose significant accessibility problems for voters with disabilities.”[14]

Florida’s Inaccessible Polling Places for People with Disabilities

At the Commission’s Tallahassee hearing, Jim Dickson of the National Organization on Disability, testified that the inaccessibility of the nations’ voting systems means that many people with disabilities are unable to vote.[15] In addition, many of these people with disabilities found themselves forced to cope with inaccessible polling places that failed to provide proper accommodations. In some polling places, individuals using wheelchairs had to negotiate steps and unreachable polling booths. Some visually impaired voters were not provided with “proper equipment[s]” to assist them in reading the ballots. As a result, they had to rely on poll workers and others to cast their ballots, denying them the right to a secret ballot. Many poll workers were not adequately trained to provide proper assistance to individuals with disabilities, denying these voters their rights.

The following examples present vivid illustrations of the barriers individuals with disabilities encountered when attempting to vote.

• Joy Cohen, an elderly woman from Broward County, who relies on her wheelchair stated that her polling place did not have wheelchair-accessible ramps and did not provide curbside voting. As a result, she had to be lifted into her polling place. She testified how disappointing it was for her that she had spent her life advocating for legislation that would provide proper assistance for individuals with disabilities, and the one time she was in need of help, that assistance was not provided for her.[16]

• Harold Cousminer, a visually impaired voter from Palm Beach County, was given improper equipment to assist him in voting. The poll workers were unfamiliar with providing assistance and accommodations for individuals with disabilities. He was given a magnifying screen to see the ballot but the magnifying screen could not be used for his butterfly ballot. He ultimately relied on his wife to cast his ballot and believed that his right to a secret ballot was denied.[17]

• Dr. Frederick Shotz, a resident of Broward County, had to use his upper body to lift himself up to get up the steps in order for him access his polling place. Once he was inside the polling place, he was not given a wheelchair accessible polling booth. Once again, he had to use his arms to lift himself up to see the ballot and, while balancing on his arms, simultaneously attempt to cast his ballot. He testified that an individual using a wheelchair who did not have the same upper body strength could not have accessed his polling place. He also stated that his polling place did not provide curbside voting and described curbside voting as a “wonderful fantasy that never came true.”[18]

• A resident of Miami-Dade County testified that his polling place was under construction and that it would have been impossible for individuals using wheelchairs to access. The pavement leading to the main entrance of the building was broken and the surrounding areas were muddy.[19]

• A Palm Beach resident in poor health brought his wife and his nurse to assist him in voting. Neither was allowed to assist the resident to vote. Rather, a precinct worker assisted the voter and told him to fill in the first bubble if he wanted Bush or the second bubble if he wanted Gore, which was in fact the bubble for Buchanan. Thus, the resident did not vote for the candidate of his choice.[20]

In one particularly egregious situation in Palm Beach, a group of people with disabilities had arranged for a bus to transport them from their condominium to their polling place. When they arrived, they discovered that the polls were on the second floor of the building with no elevator. “Those people who were disabled, therefore, one by one, using the wheelchair left in the bus, got back on the bus, went back to their condominium association buildings without ever casting a vote.”[21] These are not isolated instances. Based on the hearings held by the Commission and the testimony of witnesses, numerous Florida residents encountered obstacles to polling places and were thus disenfranchised.

Miriam M. Oliphant, supervisor of elections for Broward County, conceded that some precincts in her district are inaccessible and need ramps to comply with accessibility requirements.[22] Ms. Oliphant also admitted that some precincts were not only inaccessible, but could not be ramped or made accessible and needed to “be replaced.”[23]

Requirements of accessibility are not limited to individuals with physical disabilities. The VRA requires “ballot accessibility.” This includes voters who are blind or visually impaired and those with language barriers. Accessibility means that individuals with accessibility issues—whether they be physical or language issues—should have the same access to precincts and the ballots as individuals without these barriers.

ACCESS TO POLLING PLACES FOR INDIVIDUALS REQUIRING LANGUAGE ASSISTANCE

The majority of non-English-speaking Americans are native-born citizens constitutionally entitled to vote.[24] Congress responded in 1975 by enacting amendments to the Voting Rights Act of 1965, addressing voting discrimination against members of “language minority groups,”[25] which prohibit states from providing voting materials exclusively in English when certain conditions exist.[26] Prior to the 1975 legislation,[27] which requires multilingual voting assistance in areas with large numbers of non-English speakers, people who did not understand English were effectively disenfranchised by elections held only in English. Congress enacted a multilingual requirement if:

(i)(I) more than five percent of the citizens of voting age of such State or political subdivision are members of a single language minority and are limited-English proficient;

(II) more than 10,000 of the citizens of voting age of such political subdivision are members of a single language minority and are limited- English proficient; or

(III) in the case of a political subdivision that contains all or any part of an Indian reservation, more than five percent of the . . . citizens of voting age within the Indian reservation are members of a single language minority and are limited-English proficient; and

(ii) the illiteracy rate of the citizens in the language minority as a group is higher than the national illiteracy rate.[28]

The law requires that when this provision applies, all “voting notices, forms, instructions, assistance, or other materials or information relating to the electoral process, including ballots[,]” be provided in the appropriate language of the minority group as well as English.[29]

Florida’s Ballot Inaccessibility for Non-English or Limited English Proficient Voters

Despite the requirements that non-English-proficient voters be provided with some form of language assistance, large numbers of limited English-speaking voters were denied this assistance at the polling places all around Florida. This occurred in counties and precincts where bilingual ballots and language assistance were mandated. Because of this failure to provide proper language assistance, voters faced problems understanding the ballots or the fundamental procedure of voting. The groups disproportionately affected were Haitian Americans and Spanish-speaking Latinos. Many poll workers were not properly trained to handle language assistance issues. Some voters found that even when there were willing volunteers available to provide assistance, the volunteers or precinct workers were prevented from providing language assistance. In some instances, bilingual poll workers were directed to not provide language assistance to voters who were in need of that assistance. Thus, these non-English minority voters found their polling places to have ballots that were, essentially, inaccessible to them.

Marleine Bastien, a Haitian American community leader, testified at the Commission’s Miami hearing that she received an overwhelming number of complaints on Election Day. She visited polling places that were required by county ordinance to provide bilingual ballots. Ms. Bastien was disturbed to learn that the precincts, in violation of the law, did not have bilingual ballots. Many Haitian American voters were, in effect, turned away from their polling places without the opportunity to vote.[30]

Similarly, Jackson Chin, the associate counsel at the Puerto Rican Legal Defense and Education Fund (PRLDEF), testified at the Tallahassee hearing that after a “groundswell of complaints from Latino Floridians,” the PRLDEF “dispatched a team of lawyers to investigate and to assess multiple complaints.”[31] PRLDEF’s field investigation revealed that many eligible Puerto Rican voters were turned away from the polling places without proper language assistance. Mr. Chin expressed his surprise that counties subject to section 203 of the Voting Rights Act failed to meet their “legal obligations to guarantee meaningful electoral access to its growing Spanish-speaking language minority voters.” In some counties, many Latino voters did not receive bilingual assistance.[32] PRLDEF believes that certain election practices and policies in Florida have led to widespread voter disenfranchisement of possibly several thousand Latino voters.[33]

At the Tallahassee hearing, however, the director of the Division of Elections, L. Clayton Roberts, testified that his office in fact provided posters to the supervisors of elections in Spanish and English.[34]

The extent of what we’ve done on mechanics of voting is we provide posters to the supervisor of elections in Spanish and English, which are posted in the polling place that explain to voters the basics of voting; to get their ballot, take it to their voting system to vote it, if they make an error on it, they are entitled to get another ballot.[35]

Similarly, Florida Attorney General Robert Butterworth testified that approximately 11 counties have ballots in English and Spanish.[36] Attorney General Butterworth stated that preclearance counties are required to have ballots translated in both English and Spanish.[37] He also commended Miami-Dade County for its ordinance that requires ballots to be translated into Creole because of its strong Haitian community.[38] Approximately 60 Miami-Dade County precincts had ballots in both English and Creole.[39] Attorney General Butterworth nevertheless conceded the Miami-Dade County ordinance does not resolve all the language assistance issues. Butterworth noted:

Now there might not have been enough handouts in Creole or enough interpreters there to assist, but I think at least the counties went in the right direction, and with the strong enrollment, this time the Haitian American community had a tremendous enrollment, a tremendous turnout and it appears that there may not have been enough materials for this election.[40]

Attorney General Butterworth, defended Miami-Dade County from criticisms that it was not prepared for the voter turnout on November 7, 2000, remarking:

When you see a community like Miami-Dade attempting to reach out and do what they believe is appropriate and they miss the estimates—well, gee, all the news media missed the estimate twice when it came to Florida. But they tried to, as they predict what the election is going to be, how many machines they’ll need in each precinct, they have to go by their own experience and the people in the community.[41]

After the November election and upon further reflection, Attorney General Butterworth recommended that Broward County enact an ordinance requiring Creole translation in certain precincts.[42] He conceded that so many languages are spoken in Florida that accommodations are essential.[43]

CONCLUSION

The inaccessibility of polling places—for both individuals with physical disabilities needing barrier-free access to buildings and those needing ballot accessibility—were issues presented at the Commission’s Florida hearings.

It is estimated that voter participation among people with disabilities is at least 15 to 20 percent below that of the general population at large.[44] Despite the enactment of a Florida law requiring polling places to be accessible to people with disabilities, the law is not enforced and barriers that prevent individuals with disabilities from voting have not been removed at polling places. Credible testimony established that many voters, unable to access (enter) the precincts, returned home without voting, deprived of their voting rights. Others, while able to gain physical access to their precinct, found the booths or ballots inaccessible and were deprived of their voting rights.

Many language minority voters were also effectively prevented from casting a ballot because elections officials refused to provide bilingual ballots or assistance on Election Day, and many persons who were not literate were denied adequate assistance in casting their ballots. Remarkably, while being denied this assistance, other language minority voters were forced to vacate the voting booth within five minutes, which is in fact provided by Florida law.[45] These failures meant that language minority voters were denied meaningful participation in the 2000 November election.

Florida’s chief legal officer, Robert Butterworth, conceded that more “accommodations” must be made to enfranchise special needs voters. Butterworth noted, “We should also target those communities with the most urgent needs and Florida has communities with many urgent needs, especially language needs, people who are elderly and minority communities who are voting sometimes for the first time.”[46] He added: “We have so many languages that are being spoken throughout Florida … that we have to make accommodations.”[47]

Unless and until these accommodations are made, for both persons with disabilities and language minority voters, the struggles to gain the right to vote and the history of barriers being erected remain.