U.S. Department of Justice
                                                                                Civil Rights Division

Office of the Assistant Attorney General                   Washington, DC
                                                    June 7, 2002

The Honorable Patrick Leahy
Chairman, Committee on the Judiciary
United States Senate
Washington, D.C. 20510-4502
Dear Mr. Chairman:

    Thank you for your letter of May 30, 2002, on behalf of you and
Senators Kennedy, Edwards, Graham and Nelson, regarding the Civil Rights
Division's ongoing activities in Florida. I am pleased to respond on behalf
of the Attorney General.

    In your letter you ask for additional information regarding the
Department's efforts to investigate allegations of misconduct arising from
the 2000 election, and then solicit the Department's views on issues
surrounding the State of Florida's redistricting process. We met with your
staff and that of Senators Kennedy, Graham and Nelson on June 6, 2002 to
address the latter issue. This letter is intended to address your concerns
about investigations in Florida following the 2000 election that the
Department has closed since November 2000.

    As I summarized in my testimony before the Senate Judiciary Committee
on May 21, 2002, beginning November 7, 2000 the Department of Justice
received many calls from citizens voicing concerns about the election and
subsequent events, the total eventually reaching about 11,000. The Civil
Rights Division's Voting Section coordinated efforts to handle and review
these calls. Very few of the callers, however, relayed substantive
information indicating a possible violation of the federal voting rights
laws enforced by the Civil Rights Division. In fact, most calls came from
outside Florida, and the vast majority - over 95% - simply expressed
opinions or vented frustrations about daily events in the ongoing election
dispute. Voting Section personnel reviewed the calls daily and made all
efforts to follow up on calls from persons who asked to be called back.
Priority was given to callers who lived in Florida because of the
continuing attention focused on the election in that state.

    The Voting Section also reviewed complaints from the National
Association for the Advancement of Colored People's (“NAACP”) National
Voter Fund, which we began to receive on Election Day. Most, however, did
not involve claims of discrimination, but rather claims of irregularities
in the voting and recount that are not covered by the federal voting rights
laws. Where there appeared to be substantive information alleging possible
violations of federal voting rights laws, follow-up calls were made. The
Voting Section also sought information from the Florida Attorney General's
Office about complaints it had received following the election, and
followed up with that office several times in the subsequent three to four
months. During these inquiries, we received information from that office
that out of the nearly 2600 complaints it received, a small handful raised
issues of racial discrimination. Finally, career attorneys attended
hearings held by the NAACP and the United States Commission on Civil
Rights, and met with various Members of Congress about Florida issues. When
the Civil Rights Commission's report was issued in June 2001, the Voting
Section compared the report to its own investigatory activities to ensure
that the Department had explored all credible leads.

    The information from all sources was reviewed daily by career personnel
in the Voting Section for months after the election. Individual
investigations were formulated and authorized throughout this period. By
late January 2001, the Voting Section had identified twelve matters
concerning the 2000 election in Florida warranting investigation. Two
additional investigations were later opened, for a total of fourteen
matters in Florida - the total I referred to in my testimony. Outside
Florida, seven investigations were opened.

    After assuming my position at the Division at the end of July 2001, I
received a thorough briefing from the career voting staff on Florida
matters.  From that point I - and my front office staff - decided that the
Division's career attorneys should enjoy the widest latitude to pursue
these investigations wherever the evidence led them. My staff and I became
involved only when the Voting Section was prepared to make a recommendation
as to a particular investigation. I am gratified to say that throughout
this process the work of the Division's career voting lawyers has been
first rate, and my decisionmaking on Florida matters has been informed, and
guided, by their efforts. As of this date I have authorized suit in five
cases - three in Florida, one in Missouri, one in Tennessee. Negotiations
in those matters are progressing, and my goal is to ensure real electoral
reform in each jurisdiction. The Division has also completed and closed
twelve of these investigations — ten in Florida, two outside Florida. The
remaining four investigations remain active.

    In your letter you ask specifically about the matters the Department
has chosen not to pursue. Appearing below are summaries regarding the
matters in Florida in which we have not pursued litigation.

1.    Allegations of Police Roadblocks in the Tallahassee Area Intended to
Intimidate Minority Voters

    The Voting Section received a complaint on Election Day that the
Florida State Police had set up a traffic checkpoint near a polling place
in or near a predominantly black neighborhood outside Tallahassee, Florida.
Our investigation, which included contact with the Florida Attorney
General's Office on Election Day, showed that the police had not received
the usual supervisory approval for the checkpoint, but that such
checkpoints were not unusual in the area. The Voting Section also learned
that (a) the checkpoint existed for about 3 hours; (b) the checkpoint was
in fact several miles from the nearest polling place; (c) a higher number
of white motorists were stopped than African-American motorists; and (d)
interviews with minority drivers indicated that the motorists themselves
considered the checkpoint routine, that the police had been cordial, and
that minority drivers proceeded to vote without incident. Based on this
information we concluded there was no evidence of a violation of the Voting
Rights Act and decided not to pursue the matter further.

2.    Issues Surrounding Butterfly Ballots

    The Division received hundreds of complaints shortly after the election
about the so-called butterfly ballot used in Palm Beach County, and this
matter also received a great deal of scrutiny and public interest.
Immediately following the election we opened an investigation to determine
if there was any evidence of a possible violation of federal voting rights
laws. Review by career staff, however, showed that we lacked federal
jurisdiction over issues surrounding the implementation and use of these
ballots, and thus we determined that further action was not warranted.

    In addition, after months of scrutiny to ensure that none of its 78
sections had the purpose or would have the effect of harming minority
voting strength, the Department recently completed the preclearance process
for the new Florida Election Reform Law under Section 5 of the Voting
Rights Act. The Florida law is comprehensive; among its provisions it
addresses the problem of confusing ballot formats by imposing greater
oversight over ballot design.

3.  Allegations of Missing Ballot Boxes in Miami-Dade County

    Shortly after the election, the Voting Section received allegations
from the NAACP that ballot boxes from two precincts, one of which was
located in a minority neighborhood in Miami, had been found in these
polling places more than a week after the November 7, 2000 election, and
that ballots in these boxes had not been counted. These allegations
received significant press coverage and were discussed in a November 13,
2000 hearing conducted by the NAACP. The Section reviewed the available
evidence closely, and discussed the matter with both NAACP officials and
election officials from Miami-Dade County. Investigation revealed that the
boxes in fact contained no ballots, but only election supplies. County
officials also confirmed that all County ballot boxes were accounted for. A
separate review of voter turnout data for these precincts corroborated the
County's claim.

    Voting Section staff informed the NAACP of these findings at that time.
We received no further information indicating that there actually were any
missing ballot boxes, or that any boxes found in polling places after the
election in fact contained ballots.

4.    Alleged Intimidation of Election Officials in Miami-Dade County
During the Recount

    In November 2000 the Voting Section received allegations that a crowd
of persons had attempted to intimidate election officials on the canvassing
board of Miami-Dade County during the presidential vote recount.
Specifically it was alleged that, on November 22, 2000, this group's
activities at the county courthouse, while the recount was ongoing,
intimidated the canvassing board into abandoning the recount. Career
attorneys investigated numerous accounts of events of that day and, based
on that review, concluded that no federal voting rights laws enforced by
the Division had been violated.

5.    Allegations of Police Intimidation of Minority Voters in the Tampa

    Following Election Day, the Voting Section received allegations that
local law enforcement officials in Hillsborough County, Florida, had
attempted to deter voter turnout in Progress Village, a small,
predominantly African-American residential subdivision about 15 miles east
of Tampa. Specifically, the NAACP National Voter Project alleged that
Hillsborough County Sheriff’s patrol cars had blocked access to the
Progress Village polling place throughout the day, and that sheriff’s
office personnel had intimidated at least one African-American voter.

    The Voting Section investigated these allegations, including two trips
to Tampa to interview approximately fifteen witnesses. No witnesses could
attest to having seen any law enforcement officer block voter access to the
Progress Village polling place, or otherwise intimidate voters or deter
their participation. The only Election Day police activity career voting
staff could document near this polling place was an unrelated mid-afternoon
burglary call on the same street as the polling place, two blocks away, to
which two cruisers responded. Because no evidence of voter intimidation or
discrimination was discovered, the investigation was closed.

6.    Alleged Racial Disparities in Ballot Spoilage Rates Due to the Types
of Voting Machines Used in Florida Counties

    The Voting Section received several allegations that some Florida
counties used voting machines that caused a disproportionate number of
minority voters to spoil their ballots during the November 2000 election.
Specifically it was alleged that the use by some counties of punch card and
centrally counted optical scan voting machines led to disproportionate
spoilage, because these machines lacked the technology to alert voters that
they had overvoted i.e., had voted for too many candidates in a particular
race. The Voting Section also reviewed media accounts on this issue after
the election, the report of the United States Commission on Civil Rights on
this topic, and studies undertaken by various newspapers and task forces.

    The data culled and investigated by our career voting staff suggested
that a majority of the ballot spoilage in the November 2000 presidential
election in Florida was caused by voters accidentally overvoting in that
contest and, unsurprisingly, that rates of overvoting spoilage were
generally higher in counties using machines that did not alert voters to
overvoting. While there was evidence that, in the counties using punch card
and optical scan devices, there was a higher spoilage rate at predominantly
minority precincts than at predominantly white precincts, the Voting
Section uncovered no evidence of any intent to disadvantage minority voters
through county decisions to use these machines. Moreover, the Section found
no evidence that older machines were more often placed in predominantly
minority precincts.

    Discussion of the spoilage issue often focused on Duval County
following the 2000 election, because of the high spoilage rates in the
county's minority precincts. The Voting Section specifically investigated
the election in Duval County, and concluded that the county did have an
exceptionally high number of spoiled ballots, both in absolute terms and as
a percentage of ballots cast. Various studies suggested that more than 80
percent of these spoiled ballots were overvotes, and that a
disproportionate number of the spoiled ballots came from predominantly
black precincts.

    After investigating, the Voting Section concluded that the overvoting
in Duval County was primarily due to formatting differences between the
sample and actual ballots, which caused an exceptional degree of voter
confusion. This, coupled with Duval County's then-existing punch card
system, aggravated the spoilage problem in this county. The Voting Section
found no indication, however, of racial discrimination in the actions of
the election officials who prepared the ballots.

    Further analysis of the spoilage issue was deferred by passage of the
Florida Election Reform Law in May 2001, which specifically addressed this
problem by requiring those counties which had not already done so to
purchase, by September 2002, voting machines able to detect overvoting
ballot spoilage and give voters a chance to correct it. Many Florida
counties, including Duval, Miami-Dade and Palm Beach counties, have already
adopted use of such machines, and the information the Division has
indicates that the remainder of Florida's counties will comply before the
Fall 2002 elections.

7.    Allegations That Certain Florida Counties That Used Precinct-Based
Optical Scan Voting Machines Disabled the Ability of Those Machines to
Defect Ballot Spoilage

    The Voting Section received allegations, based on a May 6, 2001 article
in the OrlandoSentinel newspaper, that certain counties in Florida that
used optical scan voting machines able to detect ballots spoiled by
overvoting and give voters a chance to correct it, nonetheless disabled
this feature during the November 2000 election, resulting in a higher rate
of ballot spoilage. Investigation revealed that some of the counties which
had units with this detection feature did not have it activated in their
voting machines, while in other counties there were more isolated instances
in which the technology apparently was either disabled or malfunctioned
during use. Career staff found no evidence that the disabling of this
feature in machines in these counties was done selectively in minority
precincts, or with a discriminatory purpose. Moreover, as noted above, the
Florida Election Reform Law specifically addresses this issue by requiring
all Florida counties, by September 2002, to acquire voting machines with
spoilage detection technology that rejects overvoted ballots and allows
voters to correct such overvoting. The law also requires counties to set
their voting machines to ensure that the technology is activated during

8.    Florida Voter Registration Issues

    The Division received many complaints from Florida alleging various
types of voter registration difficulties. These complaints were not limited
to any specific area of the state nor, with one exception discussed in (9)
below, did the allegations indicate that only members of a particular
racial or ethnic group were affected by the problems encountered. In most
cases the allegations indicated that voters had arrived at the polls
expecting to be properly registered and to vote, but were told that their
names were not on the voter rolls. Where that was the case, persons were
often told to stand in another line so that a call could be made to
election officials to verify their registration. Many allegations, however,
indicated that election office phones were busy all day and therefore
registrations could not be verified. Some alleged that they left or waited
in line until poll closing, only to be told that the polls were closed and
they could not vote.

    This issue arose in several jurisdictions nationwide. The Division
monitored the ongoing situation in Florida to see what steps the State of
Florida would take, if any, to address voter registration concerns in its
amended election laws. As discussed above, in May 2001 the state passed its
election reform legislation, which, among other things, in fact requires
the state to implement a statewide voter registration database, permit
provisional balloting, and provide funding to counties for both voter
education and election worker training. Because these reforms substantially
addressed the registration problems alleged to have occurred in 2000, the
Division did not pursue further investigation.

    More recently, on March 21, 2002, the Florida legislature enacted new
voting legislation (Statute 2002-189), which was submitted to the
Department for Section 5 review on April 24. This legislation addresses
another alleged registration issue arising in the 2000 election, concerning
the role of the State Department of Highway Safety and Motor Vehicles in
voter registration. This law is presently pending for administrative
review. The Section expects to monitor implementation of the new Florida
laws to assess how well they address past problems, and to determine if
further investigation is needed.

9.    Alleged Registration Irregularities at Florida A&M University and
Bethune Cookman College on Nov. 7, 2000

    Shortly after the election the Voting Section received complaints from
students at Florida A&M University in Tallahassee Florida, and
Bethune-Cookman College in Daytona Beach, Florida. An investigation was
conducted in response to these allegations. In-person interviews and close
review of complaints forwarded to the Voting Section revealed that
first-time voters, who were away from their residences while at college,
were unfamiliar with the registration process and had greater difficulty
registering to vote. Older students appear to have had no such difficulty.
The Section's investigation uncovered no evidence of disparate treatment of
African-American students or of other racial discrimination. Career staff
determined that the problems reported to the Voting Section were
attributable to voter confusion rather than to racial animus and closed its
investigations at both campuses.

10.    Alleged Irregularities in the Purging of Voters

    The Division received many complaints about the manner in which Florida
conducted a purge of their voting rolls for the 2000 election. In
particular, there were allegations that Florida's purge of persons
suspected of being felons from voter registration rolls prior to the
November 2000 election violated federal law.

    Under the Florida law governing voter purges for the 2000 election, a
law which in 1998 had been precleared by the Department of Justice under
Section 5 of the Voting Rights Act, the state contracted with a private
computer database management firm to prepare lists which compared names of
registered voters with information about those persons who were convicted
felons, previously adjudicated incompetent to vote, and/or dead. The state
elections division then sent lists of matched names to election officials
in each of Florida's 67 counties for investigation and purging. Our
inquiries, and the testimony of Florida election officials and the database
contractor's personnel in early 2001, showed that the matching process at
the state level was relatively broad - the system captured names that were
less than perfect matches.

    After receiving purge lists from the state, counties' responses varied
from reluctance to use the lists because of alleged errors, to notifying
persons on the list in that county that their names were matched to those
of disqualified felons and that they would be required to demonstrate their
eligibility before being allowed to vote. As a consequence, there were
allegations that many properly registered voters were improperly purged in
this process.

    The Voting Section conducted a thorough investigation of this matter in
early 2001 to determine whether any eligible Florida voters had been
improperly removed from the rolls and prevented from voting by a violation
of federal law. While this investigation was proceeding, Florida enacted
its election reform law, which repealed the purge procedures in effect for
the 2000 election and replaced them with new procedures for removing voters
from the rolls. The new purge procedures mandated by the election reform
law were reviewed by the Division pursuant to Section 5 of the Voting
Rights Act, and were ultimately precleared on March 28, 2002, after two
requests for additional information and the receipt of written assurances
from the Florida Attorney General that the new purging procedures would be
implemented consistent with clarifications he provided during the
Division's review. Because there was no evidence that the provisions were
enacted with the purpose - or would have the effect in practice - of
harming the voting strength of minority voters, they were precleared. In
light of these developments, and because it is unlikely that any injunctive
relief won by the Division in litigation would have been as comprehensive
as the state's own reform law, the investigation was closed.

    As noted above, a new election-related law passed by the state in March
also is presently under Section 5 review. Beyond amending registration
procedures, it also further modifies state purging procedures. The
Division's Section 5 review is proceeding. Voting staff will also monitor
implementation of these new provisions to ensure that they address the
problems raised after the 2000 election.

                           *          *         *

    I hope this recitation is helpful to your understanding of the Department’s
long-term effort to investigate potential violations of federal voting
rights laws. The Attorney General and I are committed to a just resolution
of all such investigations.


Ralph F. Boyd, Jr.
Assistant Attorney General

cc: The Honorable Orrin Hatch
Ranking Member