Mr. Chairman and members of the Committee, I am Mary Frances Berry, the Chairperson of the United States Commission on Civil Rights. In addition to serving as the Chairperson of the Commission, I am the Geraldine R. Segal Professor of American Social Thought, and Professor of History and Adjunct Professor of Law at the University of Pennsylvania in Philadelphia, Pennsylvania. Thank you for this invitation to provide testimony in support of the Committee's hearing today on election reform.

I am joined by Edward A. Hailes, Jr., the General Counsel for the Commission, who came to our agency with a wealth of experience in the area of voting rights litigation and legislation. Mr. Hailes led a team of eight lawyers in conducting the Commission's six-month investigation into allegations of voting irregularities occurring in the November 2000 Presidential Election in Florida. I am also joined today by Professor Allan Jay Lichtman, who conducted a statistical study for the Commission on the percentages of spoiled ballots among different populations of voters in Florida. Dr. Lichtman was selected by the Commission as an expert for its investigation based upon his significant knowledge of voting rights issues and experience in analyzing statistics and correlating those statistics with demographic data. He is the Chairman of the Department of History at the American University in Washington, D. C., and is a nationally recognized expert on voting rights issues and particularly in the use of statistics to analyze voting rights issues.

I begin today with a solemn affirmation found in a 1992 U.S Supreme Court decision:

No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. (1)

My testimony today focuses on factfinding by the U. S. Commission on Civil Rights concerning problems facing Americans, who want to vote, are eligible to vote, who try to vote, but who are denied the right to vote. I hope to accomplish at least two objectives by this testimony. First, I specifically want to apprise the Committee of the voting irregularities that occurred in Florida during the November 2000 presidential election. The Commission staff documented these irregularities in a report that is based upon a six-month investigation, utilizing the Commission's subpoena power, comprising three days of hearings, more than 30 hours of testimony, over 100 witnesses, and a systematic review of more than 118,000 sheets of paper. By a 6-2 margin, my colleagues on the Commission approved this report on June 8, 2001. Second, I want to address more generally how our findings in Florida lead me to conclude that there is a pressing need for national election reform. Before turning to these important issues, however, it may be useful to provide an overview of the work of the Commission and its present composition.

As an independent, bipartisan, factfinding agency of the Federal government, the Commission is mandated to collect, study, and publish information concerning denial of equal protection of the laws because of race, color religion, sex, age, disability, or national origin, or in the administration of justice. More directly, 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 votes counted…. The Commission reports its findings and recommendations to the President and the Congress. When the Commission on Civil Rights was established in 1957, it was given the responsibility for investigating and reporting on voting procedures and devices used by jurisdictions to discriminate against racial minorities.

My colleagues on the Commission represent a diverse range of backgrounds, talents, political affiliations and views. They are: Vice Chairperson Cruz Reynoso, professor of law at UCLA; Christopher Edley, Jr., professor of law, Harvard Law School; Yvonne Y. Lee, president of Yvonne Lee Consultants; Elsie M. Meeks, executive director, Lakota Fund; Russell G. Redenbaugh, partner and director, Cooke & Bieler, Inc.; Abigail Thernstrom, senior fellow, Manhattan Institute; and Victoria Wilson, vice president and associate publisher, Alfred A. Knopf.

Each member of the Commission has one vote on matters brought before the Commission. My colleagues are given extensive opportunities to present their views and fully participate in Commission meetings, project planning sessions and public hearings. It is the treasured tradition of the Commission to embrace open and frank dialogue among the members. We do not stifle debate. That is why the nation often hears our members express different views on a wide range of civil rights issues. Recently, the Commission has taken on some of the most controversial issues of our times. There is bound to be disagreement on how to approach and resolve these issues. Too often, media accounts confuse dialogue and disagreement with division and discord at the Commission. I know the Commission cannot preach and teach tolerance to our diverse nation if we do not practice it in our own deliberations.

I take the time to point this out to emphasize that we would prefer to have unanimity on every issue, but our larger purpose is to find and report factual information that is relevant to the issues within our jurisdiction. I turn again to the voters in Florida, whose voices were silenced in the first presidential election of the new millennium by a state-sponsored pattern of injustice, ineptitude and inefficiency.

The Commission found that the most dramatic undercount in the election was the nonexistent ballots of eligible voters, who were turned away, or wrongfully purged from the voter registration rolls by various procedures and practices. State officials failed to fulfill their duties in a manner that would prevent this disenfranchisement. A combination of restrictive statutory provisions, wide-ranging errors and inadequate and unequal resources in the election process denied countless Floridians the right to vote. The disenfranchisement of Florida's voters fell most harshly on the shoulders of African Americans. Statewide, based upon county-level statistical estimates, African American voters were nearly ten times more likely than white voters to have their ballots rejected in Florida. On a statewide basis, while African Americans comprised about 11% of all voters in Florida in the November 2000 presidential election, African Americans cast about 54% of the ballots that were rejected in the election. Before and during the election state and county officials were aware of several key factors that ultimately contributed to the disenfranchisement of qualified voters.

There was a disturbing dearth of quality controls at many levels of the Florida election system that resulted in a wide range of errors, including the insufficient provision of adequate resources. Large numbers of voters in Florida experienced frustration and confusion, which resulted in the denial of their right to vote or to have their vote counted. The state's highest officials failed to fulfill their duties in a manner that would prevent this disenfranchisement. The election system is the engine that drives the participation of citizens in our democracy through the exercise of the precious right to vote. Regrettably, Florida officials with responsibilities for the operation of the election system were asleep at the switch.

The governor of Florida claims moral authority over election matters but claims the legal authority rests with the secretary of state. The secretary of state, who has obvious legal power, claims no practical authority stemming from a lack of enforcement authority, limited power to promulgate administrative regulations, and shared constitutional authority with county supervisors of elections in overseeing elections. The supervisors of elections have the constitutional authority to conduct elections, but maintain they are not given the resources necessary to ensure that every legal voter can exercise that right should he or she choose to vote. In addition, supervisors of elections, by default, perform responsibilities assigned by law to the governor and the secretary of state.

The Commission found there was no uniformity in the manner the 67 counties in Florida carried out Election Day responsibilities. When state officials fail to provide clear guidelines and needed resources to its counties on a uniform basis, which results in the denial of the right to vote, it becomes the duty of the federal government to promote the exercise of that right. Thus, the importance of Federal election reform measures becomes easily apparent. I do not want to appear to downplay the steps Florida has taken in enacting a new election reform law.

The Commission commends the state for this action. It is clearly a step in the right direction. However, there is so much more work to be done. Each step of implementing this new law must be monitored. Adequate funding and expert assistance must be provided. The next federal election is fast approaching. Improved technology must be swiftly and equally distributed throughout the state. The necessary provision of voter education and proper training for election officials must immediately accompany the new technology. The new law does far too little to address accessibility issues for voters with physical disabilities and voters who require language assistance. The permanent disenfranchisement of former offenders who have paid their debt to society must also be addressed. The Florida law provided limited use of provisional balloting must also be expanded to ensure that eligible voters have an opportunity to cast ballots that count when the system otherwise breaks down.

In fact, many of the reform measures that are necessary and good for Florida are also indispensable in promoting and protecting voting rights in all of the states. All states should have uniform voting systems which allows for a precinct count and an opportunity for the voter to correct his or her ballot. All states should allocate the financial resources necessary to educate voters, poll workers, and state election officials of all appropriate policies and procedures, including, but not limited to general voting rights, a voter's rights while at the polling place, how the voter should use the technology to vote for his or her candidate of choice, and the proper procedures to resolve issues that arise at the polling place on Election Day.

In Florida, we found that African Americans had a significantly greater chance of appearing on a state-sponsored exclusion list that was compiled by a private firm and distributed to county supervisors of elections with names that were inexact matches. The list was compiled and distributed to prevent ineligible voters, including ex-felons from voting. The data provided demonstrated that this list had at least a 14.1 percent error rate. One witness, a member of the clergy, testified before the Commission that when he was told by an election official in front of his family that he could not vote on Election Day because he was on a felon exclusion list, his feeling was that he had been "slingshotted back into slavery." The witness had never committed a felony and had to threaten to take legal action before he was allowed to exercise his right to vote. Florida, and all states, should eliminate policies and practices that place the burden on eligible voters to prove that he or she has not lost his or her civil rights to be permitted to vote.

All voters throughout the nation, who are denied the opportunity to vote on Election Day should have an absolute right to appeal this determination, as well as a right to receive resolution of the issue prior to the canvassing of the election or the counting of ballots. Thus, any voter wrongfully denied the right to vote would have an opportunity for his or her vote to count in the same election in which the denial initially occurred. Resources should be allocated to create a system of voter reminder cards that would be mailed to voters before every election, that informs them of their registration status and the location of their polling place. The timely processing of "motor voter" registration applications is also essential to provide opportunities for eligible persons to participate in our democracy. The Commission also support measures designed to address problems caused when polling places close early or are moved without adequate notice.

The Commission also believes that meaningful measures must be undertaken to protect the integrity of the ballot box from fraud. All states should issue public service announcements and advertisements that should plainly define voter fraud, provide succinct examples of when fraud occurs, and suggest measures that members of the public can take to prevent and/or report its occurrence. The appropriate state officials should also provide the necessary level of funding for advertisements and public service announcements that educate Florida residents on the mechanics of voting, as well as the importance of voting.

In addition, states must allocate funding and resources to train precinct managers and poll workers on providing required assistance to individuals with disabilities and non-English speaking voters. This training should not only focus on the mechanics of providing assistance, but it should also include sensitivity training to provide services to better assist and accommodate individuals with special needs.

The Commission does not believe that Florida's new provisional balloting provision adequately protects the rights of eligible voters. All states should provide an absolute right to a provisional ballot in every polling location where the voter executes an appropriate affidavit attesting that he or she is eligible to vote. In addition to provisional balloting, the Commission believes that each state should require the use of precinct-based technology that will significantly increase the chances that a voter will have his or her vote count.

We also emphasize that all states must eliminate ballot confusion. One disability expert told the Commission that the design of the butterfly ballot that was used in Palm Beach County, Florida, was "absolutely irresponsible" for use by persons with visual impairments. The Commission heard additional testimony about the burden of confusion that it placed on other voters. The state of Florida and all states must ensure that ballot designs are as uniform and easy to read and understand as possible for all voters, including individuals with disabilities and those with language assistance needs. Thus, training should be required for all election officials on creating and approving ballot designs, including training on how to conduct effective outreach efforts seeking advice and input from disability rights and other community groups.

In conclusion, the error-plagued election in Florida must never be repeated. Not all voices were heard on Election Day and the law provides no meaningful way for their voices to now be heard. Voting is the language of our democracy and regrettably, when it mattered most, real people lost real opportunities to speak. There must be adequate funding, better training, more voter education resources, increased access for special needs populations, and greater responsiveness to the voting rights of all people.

Mr. Chairman and Members of this Committee, as we move forward down this new path of election reform, we must glance back into the rear-view mirror of history, to ensure that we do not go back to the horrible days that prompted the passage of the Voting Rights Act of 1965. This law still provides vital protection for voters even when intentional discrimination cannot be proven. So when we ask the Justice Department to find out why Florida's election system caused stark disparities in spoiled ballots cast by African American voters and non-African American voters, it is because we understand very clearly that the question who spoiled the ballots is important, but even more important is to discover why the disparity exists and how to eliminate it. I stand ready to commit the resources of the Commission to the exciting challenge of promoting election reform throughout our great country. Thank you.

1. 1 Burdick v. Takushi, 504 U.S. 428, 441 (1992) (quoting Wesberry v. Sanders, U.S. 1, 17 (1964).