But unlike regular ballots cast by voters, provisional ballots–despite what we’re told–often don’t count.  In fact, in the 2008 general election, less than half of all provisional ballots cast were actually deemed to be valid.  Days after the polls closed on Tuesday, November 4, 2008, and long after the unofficial results were posted by the Secretary of State and broadcast by the media, local three-member canvassing boards in the state’s 67 counties opened thousands of envelopes containing provisional ballots and began to tabulate them.

Whether they count, is another question altogether.  Of the 35,635 provisional ballots cast in the 2008 general election, local canvassing boards validated only 17,312, or less than 50%.

The dirty little secret in the Sunshine State is that provisional ballots often don’t count. Or at least they don’t count as frequently in some counties as in others. There are innumerable reasons for the disparity, but the disparity exists. For whatever reason, provisional ballots cast by registered voters don’t have an equal shot of being accepted by local canvassing boards. The assault on voting rights by the Florida legislature in 2011, with the passage of HB1355, will likely increase the proportion of provisional ballots cast in the 2012 general election, and could very well lead to an even lower likelihood that provisional ballots will be validated.

In the 2008 general election there was a tremendous amount of variation across the state’s 67 counties regarding the number of provisional ballots cast and the percentage that were actually added to the final tabulation.  In six counties, all of them largely rural, all of the provisional ballots cast (a total of 54) were deemed to be valid by the county canvasing boards (Baker (0/0); Dixie (11/11); Hamilton (12/12); Holmes (13/13); Lafayette (3/3); and Suwannee (15/15)).

Other counties, as this Provisional Ballots Chart reveals, also had high percentages of validated provisional ballots.  For example, over 82 percent of the 731 provisional ballots cast in St. Johns County, 72 percent of the 411 provisional ballots cast in Pasco County, and nearly 60 percent of the 4,659 provisional ballots cast in Hillsborough (a Section 5 Voting Right Act county) were added to the total vote.

This 2008 Provisional Ballot Plot, crafted by my collaborator, Dartmouth University Professor Michael Herron, helps the visualization of where provisional ballots were cast in Florida in the 2008 general election. The proportion of the total votes cast in each county that were provisional ballot runs along the horizontal axis, and the percentage of provisional ballots cast in each county that were validated by the 67 county canvassing boards runs up the vertical axis. The size of the dot is proportional to the total number of provisional ballots cast, as distributed across the 67 counties.

There are several outliers, but two are pretty dramatic: Broward County, with its paltry acceptance rate of cast provisional ballots, and Osceola County, with its exceptionally high proportion of provisional ballots cast.

As I’ve written elsewhere with Dr. Herron, the rate of provisional ballots, the acceptance rate of provisional ballots, and the variation across counties should all be of grave concern as we head into the 2012 general election.

In the coming months, we’ll be investigating why there might be so much variation in the casting and counting of provisional ballots in Florida.  I suspect it’s quite likely that these clear disparities across Florida’s 67 counties are not out of the ordinary when it comes to voting provisional ballots in other states.

Here are the slides I projected during my 7 minute oral testimony.

And here’s the link to the key plot showing by day the racial/ethnic early in-person voting in Florida in the 2008 General Election.

If you’re interested in discussing our testimony, please contact me at “president<at>electionsmith[dot]com“

January 12, 2012
NOTICE OF SUBCOMMITTEE FIELD HEARING

The Senate Committee on the Judiciary has scheduled a field hearing of the Subcommittee on the Constitution, Civil Rights and Human Rights entitled “New State Voting Laws II: Protecting the Right to Vote in the Sunshine State” for Friday, January 27, 2012 at 1:00 p.m. at the Hillsborough County Courthouse, 800 E. Twiggs Street, Tampa, FL 33602.

Chairman Durbin to preside.

By order of the Chairman.

Witness List

Hearing before the
Senate Committee on the Judiciary
Subcommittee on the Constitution, Civil Rights and Human Rights

On

“New State Voting Laws II: Protecting the Right to Vote in the Sunshine State”
Friday, January 27, 2012
Hillsborough County Courthouse
800 E. Twiggs Street, Tampa, FL 33602
1:00 p.m.

Panel I

Michael Ertel
Supervisor of Elections, Seminole County
Sanford, FL

Ann McFall
Supervisor of Elections, Volusia County
DeLand, FL

Hon. Bruce Smathers
Former Secretary of State of Florida
Jacksonville, FL

Panel II

Daryl Parks
President
National Bar Association
Tallahassee, FL

Sara Pemberton
President
Florida College System Student Government Association
Clearwater, FL

Dr. Daniel A. Smith
Professor of Political Science
University of Florida
Gainesville, FL

Brent A. Wilkes
National Executive Director
League of United Latin American Citizens
Washington, DC

Here’s a link to the official announcement

New York Times has the latest in the alleged con-job he’s been running.

Here’s an excerpt from my 2005 Election Law Journal article with Elizabeth Garrett on “Veiled Political Actors” in ballot issue campaigns, which highlighted some of Connerly’s deceptive practices, which turned out to be just the tip of the iceberg :

Using 501(c)s to shield the identities of entities active in direct democracy is likely only to increase. The American Civil Rights Coalition
(ACRC) was established by Ward Connerly in 1997 following the passage of California’s Proposition 209, the successful 1996 anti-affirmative action initiative. The ACRC was the sponsor of Proposition 54, a racial privacy initiative that attempted to prohibit state and local governments from collecting data on or using classifications based on race, ethnicity, color, or national origin. According to campaign finance filings with the FPPC, ACRC contributed 94 percent ($1,570,400 of $1,671,958) of the total raised in 2001–02 by the ballot issue committee, Yes on Proposition 54/Racial Privacy Initiative Sponsored by American Civil Rights Coalition.112 The contributions made to ACRC were subsequently transferred to its sister ballot committee to help finance the paid signature-gathering effort to qualify the measure.113

Below is a Press Release from Senator Durbin’s Office

January 12, 2012

Durbin Announces Field Hearing on Florida Voting Law

January 27th Field Hearing Will Be Subcommittee’s First

Exhibit A: Reduced and Uneven Hours for In-Person Early Voting across the state’s 67 counties.

Despite claims to the contrary by outgoing Secretary of State Kurt Browning, citizens in the Sunshine State will have considerably fewer hours to vote early in the coming weeks prior to Election Day on January 31, and voters in some counties will have half as many hours to cast an in-person ballot as voters in other counties.

When compared with the state’s January 2008 presidential preference primary, voters in the Sunshine State will have a total of 1,888 and 1/2 fewer hours to cast early, in-person votes across the state’s 67 counties.  That’s a total of nearly 79 fewer working days for the state’s roughly 11.2 million registered voters to come out early and cast ballots.

But there is also considerable inequality in opportunity for Floridians to vote early, depending on the county in which they live.

Of the five Florida counties under Section 5 Voting Rights Act awaiting US Justice Department preclearance  (Collier, Hardee, Hendry, Hillsborough, Monroe), early in-person voting for the January 31, 2012 presidential preference primary runs nearly two weeks, commencing on Monday, January 16.  Although they could do so, none of the five counties has opted to offer early voting on either Sunday, January 22 or Sunday, January 29 (despite the incorrect information posted of the Secretary of State’s website–which was changed after I prepared my US Senate testimony on the topic–indicating that the Hillsborough Supervisor of Elections was planning to offer early in-person voting on both Sundays.)

Under House Bill 1355, the Supervisors of Elections of the state’s remaining 62 counties may offer up to 96 hours of early voting–from Saturday, January 21, to Saturday, January 28–although they may opt to limit voters to as few as 48 hours in total over the eight days they must keep their polls open.

Also, unlike in 2008, HB1355 prohibits counties not requiring US Department of Justice preclearance from offering early voting on the final Sunday (January 29) before Election Day.

As  I’ve written about here, the Florida Department of State, led by outgoing Secretary of State Kurt Browning, has continually misinformed the public about the total hours of early in-person (EIP) voting hours that are required under HB1355.  In an op-ed he penned in May 2001, Browning claimed that although the number of total days of early voting had been shortened, from 14 to 8, the total number of EIP voting hours  remained the same.  However, as Politifact documented, that claim that the total required number of EIP voting hours under HB1355 was “Mostly False.”

In fact, the total number of early in-person voting hours that county Supervisors of Elections must remain open under HB1355 has been cut in half, from 96 to 48. Under the new law, county Supervisors of Elections have the discretion to offer between six and 12 hours of early voting for each of the eight days polls are open—which amounts to a minimum of 48 hours and a maximum of 96 hours.

Polls will only be open for early voting this month for 48 hours in Citrus, Okeechobee, and Putnam counties, half of what they were in 2008. Citizens wanting to vote in Alachua, Okaloosa, and DeSoto counties will each see available hours trimmed from 96 hours four years ago to less than 55 hours this year.

Again, all 67 counties had 96 hours of early voting in 2008; this year, under HB1355, besides the five Section 5 VRA counties, only two counties are offering 96 hours of early voting–Lake and Miami-Dade.

When one tallies the total number of early voting hours across the state’s 67 counties, which I’ve done, Secretary Browning’s specious claim has indeed turned out to be false.

In the 2008 presidential preference primary, polls were open in the 67 counties a total of 6,432 hours; in the 2012 January primary, they’ll be open only 4,542 and 1/2 hours.

Although the 62 counties that are free an clear from the US Justice Department (as well as Section 5 Hillsborough County) will offer early voting on Sunday, January 22, the aggregate number of early voting hours is markedly less than in the 2008 presidential primary, which will undoubtedly make early voting less convenient for many Floridians.

But of course, that’s exactly what many Republicans in the state legislature had in mind when they passed HB1355 last year.

Despite their continued, self-serving opposition to the 2010 Fair Districts Florida ballot measure, Amendment 6, a majority of voters in both Congresswoman Corrine Brown’s African-American majority-minority district, CD3, and Mario Diaz-Balart’s majority-minority Hispanic district, CD21, supported congressional redistricting reform, with 57% and 62% approval, respectively.

More on the lawsuit, which Brown and Diaz-Balart have appealed to the 11th Circuit Court of Appeals, can be found here.

The popular referendum–which dates to the early 1900s in several states–allows a person or group to file a petition to have a public vote on a bill that the legislature has already approved. Every one of the two dozen states that permit the initiative process also allows citizens to propose popular referendums, except for Florida, Illinois, and Mississippi. The popular referendum, which has been used with more frequency in the past decade, is effectively a public veto of a law. Proponents may qualify popular referendums for the ballot by collecting a certain percentage of signatures in a set amount of time following the passage of the legislation in question. It’s the quintessential “gun behind the door” that allows citizens to keep their elected officials in check.

Despite the popular support for direct democracy in Florida, the political environment at this moment is not very conducive for the state legislature to devolve power to citizens.

I have a 2008 article, “Delegating Direct Democracy: Interparty Legislative Competition and the Adoption of the Initiative in the American States,” that was published in the American Political Science Review with my graduate student, Dustin Fridkin, that investigates the widespread adoption of direct democracy–specifically the citizen initiative–during the early 20th century.  It is available here for download.

From the abstract:

Between 1898 and 1918, voters in 20 American states adopted constitutional amendments granting citizens the power of the initiative. The embrace of direct democracy by voters invites inquiry into why some state legislatures opted to delegate to citizens the power of the initiative, while others did not. Drawing on an original data set, this article uses Event History Analysis hazard models to explain the puzzle of why legislatures might devolve institutional power to citizens. Our longitudinal, macrolevel analysis of socioeconomic and political forces reveals that political considerations—interparty legislative competition, party organizational strength, and third parties—are the most powerful predictors of a legislature’s decision to refer the initiative to the ballot. Although several of our findings comport with the conventional wisdom explaining the adoption of the initiative during the Progressive Era, others are surprising, offering us new theoretical insights into why and when legislative bodies might be willing to divest themselves of their institutional power.

Absent interparty legislative competition in Florida (Republicans are dominant) and the utter lack of third parties in the state, I don’t think the time is ripe for the legislature to place a popular referendum on the ballot. This is unfortunate, as the citizen’s veto–as the popular referendum is often called–has proven to be an effective tool for citizens to use to keep their unrepresentative legislature in check and more responsive to the people.

But State Senator, Republican Paula Dockery, along with Democratic Representative Richard Steinberg, have filed companion bills that would permit citizens to “veto” certain bills if signed into law by the governor.  Budgetary and emergency legislation would be exempt from citizen vetoes under Dockery’s Senate Joint Resolution 1490 and Steinberg’s House Joint Resolution 1231.

“Constituents reach out to me on a daily basis expressing frustration with the maze that is the legislative process,” Dockery said in a statement released today. “In this political climate, the bulk of the power is held by wealthy special interests. This joint resolution would place that power where it rightly belongs: into the hands of the citizens.”

“Like many states, Florida should afford its citizens the opportunity to reject legislation that they deem detrimental to the state,” Steinberg added.  “In a democracy, it is the citizens who should have the final word on whether to accept or reject a law.”

The popular referendum–which dates to the early 1900s in several states–allows a person or group to file a petition to have a public vote on a bill that the legislature has already approved. Every one of the two dozen states that permit the initiative process also allows citizens to propose popular referendums, except for Florida, Illinois, and Mississippi. The popular referendum, which has been used with more frequency in the past decade, is effectively a public veto of a law. Proponents may qualify popular referendums for the ballot by collecting a certain percentage of signatures in a set amount of time following the passage of the legislation in question. It’s the quintessential “gun behind the door” that allows citizens to keep their elected officials in check.

Most recently, Ohio voters in the November 2011 election used the popular referendum to overturn Senate Bill 5, which repealed the anti-public sector legislation signed into law by Governor Kasich.

The Dockery legislation is available here.

It’s time to set the record straight on the origins of this deceptive ballot measure, which traces its history to anti-tax crusader, and Republican insider, Grover Norquist.

In the late 1990s, Norquist and his DC-based Americans for Tax Reform organization backed several conservative initiatives on statewide ballots, including so-called paycheck “protection” measures. The major source of his funding for his efforts, it was later revealed,was the Republican National Party.  In 1993, Norquist had authored a mock policy memo (fictitiously dated “November 9, 1996”) addressed to “Republican Congressional Leaders.”  His fictitious memo detailed the GOP’s hard won “success” in the 1996 elections.  Noting the electoral power of initiatives, Norquist wrote, “I believe the wave of initiative elections in 1992 and 1994 paved the way for Republican electoral victories this year [1996].”  He highlighted how initiatives limiting legislative terms, cutting taxes and government spending, as well as anti-crime, victims rights, and parental rights ballot measures, brought fiscal and “social conservative Republican voters to the polls.”

Republican leaders apparently were convinced by Norquist’s electoral prediction.  In October 1996, the Republican National Committee (RNC) quietly contributed $4.6 million in soft money to ATR to promote federal candidates by broadcasting issue ads. While Norquist’s nonprofit did not have to disclose its subsequent expenditures, a congressional investigation (Minority Report) into campaign finance abuses in the 1990s found that ATR acted “as an alter ego of the Republican National Committee [RNC] in promoting the Republican agenda and Republican candidates, while shielding itself and its contributors from the accountability required of campaign organizations.”

Norquist’s ATR subsequently funneled a substantial amount of the RNC money to issue groups in California, Colorado, Oregon, and Nevada that were sponsoring paycheck protection ballot measures.

For example, in 1998, ATR was a major contributor to the sponsors of Oregon’s Measure 26, a paycheck “protection” initiative that qualified for Oregon’s November, 1998 ballot.  ATR also helped to finance paycheck “deception” measures in Nevada and Colorado, but they were stymied by the courts in Nevada and stalled by a union-led counterproposition in Colorado.

Earlier in 1998, Norquist’s ATR successfully spearheaded the financing of a California ballot measure designed specifically to weaken organized labor. During the crucial petition gathering phase of the campaign, ATR transferred $441,000 to the Campaign Reform Initiative in California, one of four issue committees advocating Proposition 226, a paycheck “protection” measure.  In the end, California voters defeated the measure at the polls, in large part because labor unions spent over $23 million fighting the June 1998 primary initiative.

Rather than paycheck protection, the history of these ballot measures is steeped in deception.

For more background on paycheck “protection”/”deception” ballot measures, see Daniel A. Smith. 2004. “Peeling Away the Populist Rhetoric: Toward a Taxonomy of Anti-Tax Ballot Initiatives,” Public Budgeting and Finance 24 (4): 88-110, and Elizabeth Garrett and Daniel A. Smith. 2005. “Veiled Political Actors and Campaign Disclosure Laws in Direct Democracy,” Election Law Journal 4 (4) 295-328.