Fifteen years ago, on December 12, 2000, the Supreme Court decided Bush v. Gore and put George W. Bush in the White House.
This article was first published at The Nation and is adapted from Give Us the Ballot: The Modern Struggle for Voting Rights in America by Ari Berman.
He brought his 10-year-old son, Willie Jr., to the polls for the first time. They waited a half hour to reach a poll worker. When Steen gave the poll worker his name, she searched a list of registered voters in the precinct and told him, “You can’t vote. You’re a convicted felon.”
“You must be mistaken,” a shocked Steen replied. “I’ve never been arrested in my life.” He worked at a hospital, a Tampa orthopedics center, that wouldn’t employ anyone with a felony conviction.
The poll worker gave him a number to call at the board of elections, but no one picked up. The 75 people behind him in line grew antsy. Few would look him in the eye.
He left in embarrassment, struggling to explain to his son what had just happened. After fighting for his country abroad, he wasn’t able to exercise his most fundamental right at home. “I felt I was shafted,” Steen said. “I think there were a lot of things that weren’t done properly. My name was dragged through the mud.”
He later found out from journalist Greg Palast that he’d been confused with a convict named Willie O’Steen, who had committed a felony between 1991 and 1993, when Steen was in the Persian Gulf. Little did Steen know that the same thing was happening to voters across the state of Florida — and disproportionately to voters like him, who were African-American.
Hanging chads, butterfly ballots, the antics of Florida Secretary of State Katherine Harris, and thousands of Jews accidentally voting for Pat Buchanan in Palm Beach were among the stories that captured the headlines during the chaotic 36-day Florida recount between Al Gore and George W. Bush. The widespread and wrongful purging of registered voters was the most consequential — and least discussed — aspect of the Florida election.
“The parties and the candidates did not want to focus on the racial impact of decisions that were made in Florida,” said civil-rights lawyer Judith Browne Dianis. “It was one of those moments when race was being swept under the rug.”
The NAACP sued Florida after the election for violating the Voting Rights Act (VRA). As a result of the settlement, the company that the Florida legislature entrusted with the purge — the Boca Raton-based Database Technologies (DBT) — ran the names on its 2000 purge list using stricter criteria. The exercise turned up 12,000 voters who shouldn’t have been labeled felons. That was 22 times Bush’s 537-vote margin of victory.
No one could ever determine precisely how many voters who were incorrectly labeled felons were turned away from the polls. But the US Civil Rights Commission launched a major investigation into the 2000 election fiasco, and its acting general counsel, Edward Hailes, did the math the best that he could. If 12,000 voters were wrongly purged from the rolls, and 44 percent of them were African-American, and 90 percent of African-Americans voted for Gore, that meant 4,752 black Gore voters — almost nine times Bush’s margin of victory — could have been prevented from voting. It’s not a stretch to conclude that the purge cost Gore the election. “We did think it was outcome-determinative,” Hailes said.
The 2000 election in Florida forever changed American politics and kicked off a new wave of GOP-led voter disenfranchisement efforts. “Other people began to see that in very competitive elections, you could make a difference by keeping certain voters from participating,” Hailes said. Bush’s election empowered a new generation of voting-rights critics, who hyped the threat of voter fraud in order to restrict access to the ballot, and remade a Supreme Court that would eventually gut the centerpiece of the VRA.
* * *
On election night in Florida, Bush led Gore by 1,784 votes. Because of the closeness of the election, an automatic recount began two days later in every county. Hundreds of lawyers flocked to Florida. Ben Ginsberg, national counsel for the Bush campaign, called it “Woodstock for constitutional lawyers.”
“We started to assemble a team of the best lawyers and in particular the best Supreme Court lawyers in the country, and John’s name naturally came near the top of the list,” Cruz told The New York Times in 2005. Roberts, who had clerked for Rehnquist in 1980 and was now in private practice, caught the next flight to Tallahassee.
Roberts had a long history of opposition to voting rights. As a young lawyer in Ronald Reagan’s Justice Department, Roberts led the charge against the 1982 reauthorization of the VRA, writing more than two dozen memos criticizing the landmark civil-rights law. Voting-rights violations “should not be made too easy to prove,” he wrote, and would lead to “a quota system in electoral politics.” Now he was helping the Bush team prevent eligible votes from being counted.
Roberts edited legal briefs, including the Bush campaign’s 50-page submission to the Supreme Court, and prepared Theodore Olson, a former assistant attorney general under Reagan, for oral arguments. He also advised Florida’s governor, Jeb Bush, on how the state legislature could assign its presidential electors to George W. Bush before the recount was finished. “I really appreciate your input on my role in this unique and historic situation,” Bush wrote to Roberts.
Roberts’s name appeared on no briefs, but his influence was unmistakable. “He is one of the finest legal writers of his generation,” Cruz said. “His editing pen was invaluable.”
The Bush campaign, which led by 327 votes after the automatic recount, wanted as few disputed ballots accepted as possible. When the Florida Supreme Court ordered a statewide manual recount, which favored Gore, Bush appealed to the Supreme Court. The Supreme Court halted Florida’s recount four days later, on December 12, thereby declaring Bush the winner of the election. No justice put his name on the unsigned 5–4 opinion.
The Court asserted that the recount violated the equal-protection clause of the 14th Amendment — established in 1868 to secure the rights of African-Americans — because there was no uniform statewide standard for counting disputed ballots in each county. In a draft of her dissent, Justice Ruth Bader Ginsburg observed in a footnote that if there was any equal-protection violation in Florida, it was because black voters encountered a disproportionate number of problems voting. Justice Antonin Scalia, her closest friend on the Court, objected to Ginsburg’s “Al Sharpton” footnote, according to The New Yorker’s Jeffrey Toobin, and she took it out. When one read the Bush v. Gore decision, it was as if the disenfranchisement of black voters had never occurred.
Fifteen years later, Cruz and Jeb Bush are running for the GOP’s nomination for president, and Roberts is celebrating his 10th year as chief justice of the United States.
* * *
On January 11, 2001, Jeb Bush testified before the Civil Rights Commission during its investigation into the election problems in Florida. “What, if anything, did you do to ensure the election laws were faithfully executed?” general counsel Hailes asked the Florida governor. Bush said that he wasn’t responsible for the problems in Florida, including the voter purge. He blamed Katherine Harris. “It is the responsibility of the secretary of state as part of our Constitution,” Bush answered.
“No, the secretary of state and the 67 supervisors of election were responsible for that,” Bush said.
But blatant warning signs were ignored by Bush and the state well in advance of the election. On the orders of state officials, names were added to the purge list if there was only a 70 percent match between a name on the voter rolls and a name in the state’s felon database. This meant that voters could be tagged as felons even when middle initials, suffixes, nicknames, and even race and sex data didn’t match perfectly. Hence the confusion of Willie Steen with felon O’Steen.
DBT warned the state that it was compiling “false positives.” Bucky Mitchell, a senior attorney for the Division of Elections, told the company, “Obviously, we want to capture more names that possibly aren’t matches and let the supervisors make a final determination rather than exclude certain matches altogether.” Voters were deemed guilty until proven innocent. The election supervisors became responsible for Florida’s intentionally lax record-keeping.
In May 2000, after the first supposedly corrected batch of names was released, the election supervisor in Madison County found herself on the purge list. Ion Sancho, the election supervisor for Tallahassee’s Leon County, was the only election official to go through the list one by one. “We went for a five-for-five match,” he told Vanity Fair. “Those were criteria such as name, birth date, race, sex, Social Security number. When we applied that to this list of 697 that we got in 2000, I could verify only 33.”
Nonetheless, the highest-ranking officials in Florida did not urge the election supervisors to disregard a list that many knew was deeply flawed. “Once the problems emerged, Governor Bush could have made it clear that it wasn’t acceptable to wrongly take voters off the rolls,” says Matthew Corrigan, professor of political science at the University of North Florida and author of Conservative Hurricane: How Jeb Bush Remade Florida.
In January and February 2001, the Civil Rights Commission listened to 30 hours of testimony from more than 100 witnesses during three field hearings in Tallahassee and Miami — including Bush, Harris, the state attorney general, and numerous county election supervisors. The commission’s final report found evidence of “widespread voter disenfranchisement” — which likely violated the VRA — and concluded that an “overall lack of leadership in protecting voting rights was largely responsible for the broad array of problems in Florida during the 2000 election.”
A strenuous dissenting statement was filed by the conservative intellectual Abigail Thernstrom, whom Bush had appointed to the Civil Rights Commission at the beginning of his presidency, and Russell Redenbaugh, a Philadelphia businessman appointed by Bush’s father. Thernstrom had been the leading critic of the VRA since the 1980s, arguing that the law represented “an instrument for affirmative action in the electoral sphere.”
The civil-rights panel had focused on the wrong set of voting problems in Florida, the two commissioners asserted in their dissent: “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.”
Despite this dissenting statement, a majority of the commission called on the Justice Department to immediately prepare litigation against Florida and its governor for violating the VRA. By then, however, it was too late: The Bush administration followed Thernstrom’s lead and prioritized prosecutions of voter fraud over investigations into voter disenfranchisement.
* * *
A thousand miles north of Florida, a similar electoral calamity, with equally profound ramifications, unfolded in St. Louis.
On Election Day 2000, Mahina Nightsage, a 41-year-old community organizer, went to her polling place of 20 years. But this time, she found that her name was not on the registration rolls. Her local alderman told her to visit the board of elections downtown to find out what had happened.
Not everyone was as lucky. “There were many people who had been waiting for hours, and they just left,” Nightsage said. The line of jilted voters in the heavily Democratic city was predominantly African-American.
The problems started before the 2000 election, when the St. Louis Board of Election Commissioners sent voter registration cards to all eligible voters. Those whose mail was returned as “Attempted — Not Known,” “Not Deliverable as Addressed,” or “Forwarding Order Expired” were labeled “inactive” and removed from the rolls. More than 50,000 voters in St. Louis were placed on inactive status between November 1996 and November 2000. None were notified about the change in their status. Thus, thousands of voters like Nightsage arrived at the polls on Election Day only to learn that they were no longer on the rolls.
The Gore campaign filed an emergency suit late that afternoon asking a court to keep the polls open an extra three hours so that everyone could vote. When a circuit court ordered the polls open until 10 pm in St. Louis, the Bush campaign filed an immediate appeal. Forty-five minutes later, the Missouri Court of Appeals rescinded the order and closed the polls. Only 100 additional voters had been able to cast ballots during the brief additional time. “As of 10:00 pm on election day,” a Justice Department lawsuit later stated, “individuals were still standing in line at the downtown headquarters of the Board of Elections.”
The brief extension of polling hours infuriated Missouri Republicans, who had gathered at an election-night party at the St. Louis Marriott West Hotel. Missouri Senator John Ashcroft watched in disbelief as the election returns showed him losing to a dead man.
Ashcroft’s opponent in the closely watched Senate race, Missouri Governor Mel Carnahan, had been killed in a plane crash three weeks before the election. His name remained on the ballot, and his wife, Jean, ran in his stead.
Republicans viewed the extended poll hours as a last-ditch attempt to illegitimately oust Ashcroft from office. “I know there are very serious allegations of fraud and corruption as it related to the conduct of the election in the city of St. Louis,” Ashcroft said.
Missouri’s senior senator, Republican Kit Bond, was far more blunt. “Democrats in the city of St. Louis are trying to steal this election,” he screamed into the microphone at the Marriott, slamming his right fist on the podium in anger.
How else could a sitting senator lose to a dead man? For Missouri Republicans, St. Louis became the contemporary version of the 1960 election in Chicago, when ballots from dead voters allegedly elected John F. Kennedy president.
Ashcroft lost by 49,000 votes — a result that would not have been determined by 100 extra people voting from 7 to 7:45 pm. Nevertheless, Bond sent the FBI and the US Attorney’s office a 250-page report alleging “a major criminal enterprise designed to defraud voters.” Less than two months later, Bush nominated Ashcroft as attorney general, and a new right-wing voter-fraud movement was born.
Soon after Bush’s inauguration, his administration embarked on a dramatic effort to restrict voting rights. With Ashcroft in charge, longtime civil-rights lawyers were fired from the Justice Department’s Civil Rights Division, which enforced the VRA, and replaced by ultraconservative zealots like voting-section chief Brad Schlozman, who vowed to “gerrymander all of those crazy libs right out of the section.” US Attorneys in states like New Mexico, Washington, and Missouri were fired for refusing to prosecute trumped-up cases of voter fraud.
Georgia’s strict voter-ID law, the first of its kind, was approved by the Justice Department under the VRA, despite objections from state lawyers and clear evidence that the law would disproportionately burden black voters. According to the Justice Department’s report, Representative Sue Burmeister of Augusta, the lead Republican sponsor of the bill, told department lawyers that “if there are fewer black voters because of this bill, it will only be because there is less opportunity for fraud. [Burmeister] said that when black voters in her black precincts are not paid to vote, they do not go to the polls.”
Most significantly, these new reactionaries soon found crucial allies in John Roberts and Samuel Alito, the two Supreme Court justices appointed by the Bush administration. In April 2008, the Court approved Indiana’s voter-ID law in the first major voting-rights case heard under Roberts. The Court backed the measure even though Indiana presented no instances of voter impersonation that the law would stop, which signaled that states could implement new voting restrictions merely by invoking the specter of voter fraud, even if such fraud had not actually occurred. (The author of the decision, John Paul Stevens, has since admitted that “the impact of the statute is much more serious” on poor, minority, disabled, and elderly voters than he’d initially recognized.)
Five years later, in a decision written by Roberts, the Supreme Court invalidated the centerpiece of the VRA: the formula that required states with the worst histories of voter discrimination to approve changes to their voting systems with the federal government. That decision has led to new voter-suppression efforts in states like North Carolina and Texas, and has set a chilling precedent for voting rights in the Obama era.
The result has been the most significant effort to restrict voting rights since the Jim Crow era. From 2011 to 2015, 468 voting restrictions have been introduced in 49 states. Half the states in the country have passed new laws making it harder to vote. None of this would have been possible if it wasn’t for the 2000 election in Florida.
Watch Bill Moyers interview Ari Berman about the fight — and the right — to vote.
Reprinted with permission from Give Us the Ballot: The Modern Struggle for Voting Rights in America, published by Farrar, Straus and Giroux. Copyright © 2015 by Ari Berman. All rights reserved.