Thank you for inviting me to testify today. 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, a position to which I was appointed by Congress this past January.

I am also the author of Whose Votes Count? Affirmative Action and Minority Voting Rights (Harvard University Press, 1987) which won four major awards, including the American Bar Association's Certificate of Merit. It was named best policy studies book of that year by the Policy Studies Organization, an affiliate of the American Political Science Association.

As a member of the U.S. Commission on Civil Rights, I attended the three days of hearings in January and February on "Allegations of Election-Day Irregularities in Florida," and have been a participant in deliberations since then. I did not join the majority in voting to approve the report that was released earlier this month, and, with Commissioner Russell Redenbaugh, have written a dissent which will be submitted to the Commission today.

The United States Commission on Civil Rights has a statutory duty to investigate voting rights violations in a fair and objective manner. It has produced a report, however, that makes a mockery of its non-partisan fact-finding mission. "Voting Irregularities Occurring in Florida During the 2000 Presidential Election," released first to selected press on June 4 and then to all Commissioners a day later, draws conclusions based on a deeply flawed statistical analysis coupled with anecdotal evidence of limited usefulness and given a questionable spin. As a consequence, its central finding--that there was "widespread disenfranchisement and denial of voting rights"--does not withstand close scholarly scrutiny.

This report does not serve the public interest. Nothing is more fundamental to American democracy than the right to vote and to have that vote properly counted. Allegations of disfranchisement are the fertile ground in which a dangerous distrust of American political institutions thrives. When those allegations are driven by partisan interests and have no basis in fact, distrust, alienation and cynicism have been needlessly and irresponsibly fostered. Democracies are always fragile. Today, the Commission eagerly labels as illegitimate the results of the 2000 election; tomorrow, true democrats, across party lines, will rue the day it did so.

Perfectly obvious 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 statistical analysis upon which much of the final report's findings are based was conducted by an historian with close ties to Albert Gore, Jr. 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 10 days to review and respond to the final report, in violation of established procedures and previous promises. Memos from the Republican appointees to the chief of staff throughout the process regularly went unanswered.

Most recently, a request for basic data to which I--and indeed, any member of the public--was entitled was denied to me. The Commission hired Professor Allan Lichtman, an historian at American University, to examine the relationship between spoiled ballots and the race of the voter. I asked for a copy of the machine-readable data that Professor Lichtman used to run his correlations and ecological regressions . Obviously, he could have easily put that information on a disk. The Commission had the temerity to tell me that it did not exist--that the data as he organized it for purposes of analysis was literally unavailable. Professor Lichtman, who knows that as a matter of scholarly convention such data are always shared, also declined to provide it. Evidently, they have no confidence in their own numbers and analysis.

Process matters. And that is why it is important to examine, with integrity, 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 worthless document. And thus it certainly provides no basis upon which to reform the electoral process in Florida or anywhere else.

In my dissent to the Commission's majority report, I will argue that:

The statistical analysis done for the Commission by Allan Lichtman does not support the claim of disfranchisement.

The report also relies heavily on anecdotal evidence and the statements of various witnesses at the hearings. But many experts, Florida officials, and ordinary citizens testified to the absence of "systemic disenfranchisement" and "widespread discrimination" in Florida.

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 a white male 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.

The report argues that election procedures in Florida were in violation of the Voting Rights Act, but the Commission has bent the 1965 statute totally out of shape.

The report holds Florida's public officials, including 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 many of those with the highest rates of voter error were under Democratic control.

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." Undoubtedly that is true; a higher proportion of blacks in Florida have been convicted of felonies. But there is no evidence that the state targeted African Americans 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. And the problem of voters erroneously purged from the rolls has been addressed by Florida's recent reforms which permit provisional voting in cases of dispute.

While the report is rightly concerned about legitimate voters purged from the rolls, it is unconcerned about evidence pointing to voter fraud. Thousands of ballots were apparently cast by felons and others who were ineligible to vote.

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. Moreover, according to unrebutted testimony, the only reason why any troopers visited any polling places was to vote.