This week, the Center for Individual Freedom’s Renee Giachino, who hosts the radio talk show "Your Turn — Meeting Nonsense with Common Sense" on WEBY 1330 AM in Northwest Florida, interviewed Peter Kirsanow, Commissioner on the U.S. Commission on Civil Rights, about claims of voter disenfranchisement in the 2000 election and legal challenges in the upcoming election.

What follows are excerpts from the interview.

GIACHINO: This afternoon my first guest joins me from Cleveland, Ohio. Mr. Peter Kirsanow is a partner in the law firm of Penesch, Friedlander, Coplan and Aranoff where he practices in the Labor and Employment Practice Group. Mr. Kirsanow also serves as a Commissioner on the U.S. Commission on Civil Rights. Mr. Kirsanow frequently testifies before and advises members of the U.S. Congress on various employment laws and issues. Thank you, Commissioner Kirsanow, for joining me today to discuss the upcoming election. Are you there?

KIRSANOW: Yes, my pleasure.

GIACHINO: Thank you so much. We know that all eyes were on Florida following the 2000 election, with all of the allegations that were floating around of voter fraud, manipulation or deliberate suppression of the vote in Florida. All of that gave rise, as I understand it, to investigations by the Civil Rights Commission, media entities and the Justice Department. It is my understanding Mr. Kirsanow that you joined the U.S. Commission on Civil Rights as a Commissioner after they completed the investigation. Can you elaborate on your role as a Commissioner and give us your thoughts about the 2000 election?

KIRSANOW: The U.S. Commission on Civil Rights was created in 1957 and is charged with a number of things, among which are monitoring and investigating alleged deprivations of voting rights. Pursuant to such charter, the U.S. Civil Rights Commission, immediately after the 2000 Presidential Election conducted a six-month investigation of allegations of voter intimidation, harassment and disenfranchisement in Florida. The investigation lasted for about six months — the staff of the Commission conducted investigations, there were hearings and information and evidence was compiled and the Commission produced a report of about 200 pages. There was also a dissent to the report. In addition, as you just indicated, the Civil Division of the Department of Justice, that is the Civil Rights Division, also conducted its own investigation to determine whether or not there were violations of the Voting Rights Act.

Now, immediately upon conclusion of the 2000 Presidential Election, actually before the polls even closed, there were allegations of various tactics being used to disenfranchise voters. Some people said that dogs and hoses were being used, specifically against black voters, to prevent them from going to the polls; that other tactics of intimidation were being used to prevent voters from casting their ballots. At the conclusion of the investigations that I just described, there was no evidence of any type of harassment or intimidation or disenfranchisement — as defined by an intentional attempt to prevent voters from casting a ballot or discriminatory attempt to prevent voters from casting a ballot.

What the investigation of the U.S. Civil Rights Commission did reveal was that there were a number of spoiled or ruined ballots. By that I mean that voters had made mistakes on their ballots so that the votes could not be properly recorded. But the Civil Rights Division of the Department of Justice did find that there were a few violations of the Voting Rights Act in three different counties. One was that bilingual assistance had not been provided to Hispanic and Haitian voters, I think at two polling locations, and that at one location a poll worker was hostile to a Hispanic voter. But that is pretty much the sum and substance of the investigation.

One other feature was that there was a felon purge list that had been developed by the State of Florida. That purge list was designed to ensure that felons — who are by Florida law prohibited from voting in elections unless they have their voting rights restored by petitioning the government to do so — that they are purged from the roll and it is made sure that they are not voting in violation of the law. That had been a problem in previous elections, and, in fact, in the Miami Mayoral Election it had been a considerable problem, and that is why this was implemented to prevent voter fraud of that nature. And the allegation was there that the voter purge list was inaccurate. And, in fact, it was. There were a number of people who were on the list who should not have been on the list. But the allegation by some that this was somehow a device or vehicle to deprive people of the right to vote, and especially blacks of the right to vote, was proven to be inaccurate. In fact, whites were twice as likely as blacks to be inaccurately placed on the voter purge list, and a couple of newspapers, after they conducted their investigations, found that the problem with the felon purge list was not that it prevented so much lawful voters from voting but that so many felons in fact did get a chance to vote. In fact, something like 6,000 felons voted unlawfully.

GIACHINO: Some of the allegations that you raise — those involving felons, those involving individuals who feel disenfranchised — some of those are some of the same allegations that we are hearing surface again in the last couple of weeks and certainly even more so in the last week before the election. In your opinion, are all eyes going to be on Florida again this year?

KIRSANOW: They will be on two states: Florida, again, and also Ohio. Those are the states that are closest in the polls and are the states that have the greatest number of electoral votes that are closest in this particular election. We have heard for several months now that there are going to be numerous challenges to the outcome of the election, or that there could be numerous challenges to the outcome of the election. In fact, there have been a number of officials who have stated very forthrightly that regardless of what the outcome is that they plan to litigate, and that’s unfortunate. There is a DNC memorandum that was unearthed last week that indicated or suggested to poll workers that they should look out for voter intimidation, and that if there is not voter intimidation they should launch a preemptive strike. In other words, to allege it even if there is not a whole lot of evidence to support that. That I think is an unfortunate development, and I think it doesn’t serve society or the country well to raise suspicions of violations of the electoral process if they are unfounded. If they are, in fact, founded most definitely the Justice Department and others should be on the case. I suspect that they will be. We know that there are thousands of lawyers who have been marshaled by either side to make sure that the process works properly. But it is unfortunate to see that electoral process has been reduced to a matter of competing lawyers.

GIACHINO: It has been reported that in anticipation of the potential legal and political fights, that, I read something today, that the Kerry Campaign has six so-called "SWAT teams" of lawyers and political operatives, numbering close to 10,000 situated around the country with fueled-up jets awaiting Kerry’s orders to speed to the battleground states — some say six, some say eight, you have identified certainly two of them. I assume the Bush Campaign is ready to go, as well. Can you tell me, with all of this going on, will the Commission on Civil Rights be in the State of Florida to witness the voting first hand?

KIRSANOW: Renee, I can certainly tell you that I hope the U.S. Commission on Civil Rights doesn’t have to be involved. We will not have people on hand, at least to my knowledge, unless the regional office plans to do so. But it is not the province, nor do we have the staff to monitor the polling places. My understanding is that the Department of Justice does have a team of lawyers at various points. I may be mistaken about that, but we did have several hearings before the Commission all year long on voting matters, including access issues, issues pertaining to allegations of intimidation and harassment. And, we did have individuals from the Department of Justice testify that they are monitoring the situation very closely, and they do have a team of lawyers assigned to it. There are tens of thousands of polls and poll watchers throughout the country. In some places, there are poll watchers from either party in every precinct, and there are going to be more for this election than in any other election in our lifetime. So, we would expect that there will be considerable scrutiny and the Commission’s role would be — if there are credible allegations of deprivation of voting rights — to then go in, after the fact, and compile evidence from witness testimony, documentary evidence, as to what transpired.

GIACHINO: So there is no preemptive measure taken, at least not by the Commission on Civil Rights?

KIRSANOW: Right, the only thing the Commission on Civil Rights has done to this point is conduct a series of hearings related to ballot access issues, voter integrity issues, matters or problems pertaining to ballots or voting machines, so on and so forth, and matters related to the Help America Vote Act. But no, our charge is not going to be to have monitors stationed to preempt problems. That is left up to various states, county supervisors in many jurisdictions, who are responsible for the conduct of the elections, and also the U.S. Department of Justice.

GIACHINO: We talked briefly about how they are laying the groundwork to claim voter disenfranchisement — both parties perhaps are — and wrongdoing by pointing to every possible voting irregularity before the election next week. I think it is unprecedented — the volume of lawsuits that we have already seen challenging voting practices. I think there are at least a half dozen such lawsuits in key states and probably more are being developed. I know that here in Florida alone you pick up the paper every day and there is reference to another lawsuit. There is one dealing with the paperless voting system, which in fact was ruled on today, and there is also the one dealing with provisional ballots, where a federal judge last week ruled. I think there is a similar suit going on with provisional ballots in Ohio and perhaps others in Michigan, Missouri and Colorado.

Do you think these lawsuits and allegations are going to make a difference in the election next week? Or, is this all just media hype to draw attention away from some of the bigger issues, or just to scare voters? Or do you think it will have the opposite effect and in fact get the voters out there?

KIRSANOW: First of all, I do think much of it is hype to kind of excite the electorate. I know that a number of politicians have been out there making extraordinary claims to excite voters and to energize and motivate voters in a way that I don’t think is healthy for the polity. Some of these claims are that a million blacks were disenfranchised last time around — that their votes were stolen. John Kerry has even said that a million black votes were stolen in the last election. There are flyers that are circulating that indicate that Republicans used hoses to prevent blacks from voting last time around. All of which is false.

To answer your questions, yes, I think this is part of an effort to get voters to the polls. Will it make a difference? Will all the allegations and lawsuits make a difference on the outcome? Hard to tell. I think much of it depends on how close the election is. I think the book circulating out there says that if it’s not close, you can’t cheat. But if there is a significant margin between the two candidates, both popular vote and electoral vote — and I stress both of them because there is always going to be those who suggest that if the popular vote is close the electoral vote should not really matter, regardless of the Constitution — but nonetheless, if it’s close I think that these kinds of allegations may have a difference. I wonder though what kind of patience the public will have for the kind of litigation that we saw subsequent to the 2000 election. My own sense is, just anecdotally, I don’t think the public is going to be all geared up for another drawn out election, and I think there will be a backlash against whatever party it is that decides to proceed down those lines.

GIACHINO: That’s an interesting perspective. Peter, you raised this earlier and I would like to turn back to it if I may. That is, the manner in which we determine who our next president will be. I am sure that you are familiar with Colorado’s initiative to allot that state’s electoral college votes not on a "winner-take-all" basis (as the state currently does), but rather proportionally to the statewide vote. What is your opinion on this?

KIRSANOW: Well, there are other states, I know Maine does something similar to that and Nebraska does as well, I don’t know where it stands right now. I think that the polls show that the initiative is probably going to fail. But I think it is important. I think that the Electoral College is an important vehicle and that the Founding Fathers were right to put something like that together. Without going into the history lesson or civics lesson, there are a number of reasons why it makes good sense to have an electoral college. But among others is that it does not concentrate power in certain areas. Otherwise, the Northeast, for example, would have a disproportionate amount of political influence as compared to the less populated, although nonetheless vital area. I guess that I have visceral reaction to it that I prefer that there not be a split. But, even if there were, I am not sure that the Colorado initiative is being motivated by the greatest of civic intent. I think it is more political calculus and a hope to draw off a couple of electoral votes to a party that may not have a chance of winning the state outright, thereby enhancing the prospect that that party’s candidate might still be able to glean one or two votes and be able to still help them in the electoral college overall.

GIACHINO: As a Commissioner for the Civil Rights Commission, I would like to ask your opinion on several columns written recently by syndicated columnists. For example, syndicated writer Mona Charen, in an article that I read today said that if you don’t know, please don’t vote — essentially proposing that if a person is utterly ignorant about matters of public policy, then he or she has a solemn obligation to refrain from voting. How do you respond to that?

KIRSANOW: There are a number of views on that. I know of a lot of people who share that perspective. You don’t want somebody who has absolutely no idea of what is going on kind of poisoning the vote totals by casting an uninformed vote. By the same token, how do you determine and how do you measure who is ignorant and who has educated them sufficiently to vote. I mean that is a very difficult proposition — where do you draw the line. Obviously there is never going to be any kind of statute or anything of that kind of nature that sets any kind of line like that. What she is doing is urging people to use some kind of self-discipline or self-censorship if they know that they know absolutely nothing about the issue — that they should not be engaging in electoral malpractice. But again, I go to the point of, where and at what point are we satisfied that someone is sufficiently engaged in the process that they should go ahead and vote, and at what point do they fall below the line and they should exercise some discretion and decide that they should stay at home. I don’t know that the United States, or any other country that considers itself democratic, can do that. I respect Mona Charen a lot, and I think there is a lot to be said for that proposition, I know that a lot of people think that if someone has no clue, he or she is driving the country in the wrong direction by casting a vote, but I think that’s the nature of our democracy. It is our obligation, everybody, to make sure that we educate ourselves and/or make sure that our neighbors are educated by talking to them and get the message out sufficiently, and that our candidates do that. That is the job of the electorate as a whole

GIACHINO: Let me ask you about one other article that I recently read. This one by Cynthia Tucker, who is also a well-regarded columnist. She recently wrote an article titled "Civil Rights in danger if Bush is re-elected." Recognizing that you are not speaking on behalf of the U.S. Commission on Civil Rights, but that you are one of the Commissioners, what is your opinion of what she has written, that being that the fate of the U.S. Supreme Court, which we all know to be the case — that is that at least four of the Justices could retire during the next term or face some other unfortunate event, and she writes that if President Bush is re-elected "his Court could turn back the clock on the individual rights Americans take for granted." Do you agree or disagree?

KIRSANOW: I disagree vehemently. With all due respect to Ms. Tucker, who I think is very well respected, that is just tremendous hyperbole. I have seen that in a lot of other places and using the fact or the term "turning back the clock." If anyone is a historian of the Court, I would like to see under what circumstances, other than perhaps Dred Scott and a few others, where any clocks have been turned back. And, in fact, I think we have a court system, a legislative system and executive branch that are all committed to civil rights, and, in fact, we have a multi-billion dollar apparatus in place to insure that civil rights are protected. All we see and have seen for the last 50 years is an expansion of those civil rights and the protection thereof. I think it verges on irresponsible to make a comment like that.

GIACHINO: Mr. Kirsanow, I have to take a break now. Thank you very much for your time today, and we appreciate all of your efforts on behalf of the U.S. Commission on Civil Rights.

KIRSANOW: Thank you.