Voter rules test Hillsborough election chief

By Jeff Testerman, Times Staff Writer
In print: Sunday, May 11, 2008

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ADVERTISEMENT Related Links Serving subpoena on Buddy Johnson took 18 days Diaz vs. Browning (See pages 307-330) (PDF) Diaz vs. Browning (PDF) NAACP vs. Browning (PDF)

TAMPA — It had taken almost three weeks to track down Elections Supervisor Buddy Johnson to hand him a subpoena for his testimony in a federal voting rights case brought by the NAACP.

When Johnson finally sat for his deposition, he said he didn't know the answers to dozens of questions about procedures in his office.

He was unable to describe details of the voter registration process and unwilling to respond to routine questions, including the degrees he held and where he lived. Johnson complained that an NAACP lawyer treated him with condescension, and he briefly donned a football helmet before beginning the second day of testimony.

"I don't like these (questions)," Johnson told the NAACP attorney at one point. "You have no idea. That language is really bothersome to me, really is offensive, I'll be honest with you."

Asked by the St. Petersburg Times about his halting responses and his demeanor in his deposition, Johnson referred questions to his general counsel, Kathy Harris, who was there through his testimony. Harris had only positive things to say about her boss' comportment.

"Mr. Johnson was not irritated, (and) he responded to each relevant question posed during the deposition," Harris wrote. "The proceeding was cordial and nonadversarial."

She said he did not wear the football helmet during the deposition.

The NAACP suit challenges a law that disallows voter registrations when personal information on applications does not match existing driver's license and Social Security databases.

Adherents say the law fights voter fraud. But according to the lawsuit, it tends to disenfranchise minority voters who have unusual or hyphenated names.

Filed in September in federal court in North Florida against Secretary of State Kurt Browning, the case is still pending.

Johnson was one of six county elections supervisors asked in depositions about procedures used to handle the voter registration "matching" law. When the NAACP attorneys asked which Hillsborough elections employees could best respond to questions about the registration process, Harris said Johnson "will speak to the issues."

But in a two-day deposition in October, Johnson often did not.

Faced with questions he could not answer, he described himself as not a detail person, but the man in charge of the big picture.

"My responsibility is the direction, the vision, and not the absolute minutia" handled by elections staffers, he testified.

Johnson did not know how the county's database of registrations was sent to the state. He could not identify the most common registration verification problems at his office. He did not know if letters notifying voters of registration errors were sent in English and Spanish. He could not say whether a nickname, like "Buddy," would result in a failed match on a registration.

"Is this a quiz?'' Johnson asked NAACP attorney Lauren M. Rothenberg. "It feels like a quiz."

He added, "I know everything I need to know to do my job as supervisor of elections, but I don't need to know some of the specific nuances of the answers your questions are looking for."

Johnson was asked: What could a poll worker tell a voter concerning data that needed to be verified on election day?

"I don't know,'' he replied. "That's an essay question. I don't know."

Rothenberg asked about the primary responsibility of the county's Canvassing Board, which reviews provisional ballots and certifies elections.

"The answer to that question is a speech,'' said Johnson, later saying he would have to "research the law" to determine the answer.

Along the way, Harris frequently objected to questions, instructed Johnson not to answer, provided testimony herself and made quips about the process.

Rothenberg asked Harris to "refrain from butting in."

Later, as Harris offered answers to help Johnson, Rothenberg reminded her that she was not permitted to testify.

"I clarified,'' Harris told her. "Don't get upset. We're having fun here."

Asked about the deposition, Harris told the Times that the notion that "Mr. Johnson was unable or unwilling to answer most questions is not factual or supported by the official record."

After Johnson's deposition ended, the NAACP attorneys filed papers in the court case saying "it is undisputed" that he "was unable to provide testimony on a number of topics for which he was designated to testify upon.'' The attorneys listed 23 areas where Johnson was unable to provide answers.

As a result, NAACP attorneys subpoenaed two of Johnson's top staffers, Deputy Supervisor of Voter Services Sharon Smith and Assistant Supervisor of Elections James A. Reed, for additional testimony.

Harris said the problem was not Johnson's inability to answer, it was that the NAACP lawyers didn't like what he said. "The plaintiffs were not able to lead Mr. Johnson, so they were not always happy with his responses.''

• • •

Johnson also gave testimony recently in a second, unrelated voting rights case.

His deposition answers prompted one side to call him to testify at trial. But there he gave different answers, prompting the lawyer who put him on the stand to attack his own witness' credibility.

The case was filed in federal court in South Florida in 2004 by several labor unions and minority voters, including Emma Yaiza Diaz.

The Diaz case asserted that thousands of voters were disenfranchised because after the close of registration, elections officials refused to process voter applications that contained errors or were incomplete.

The secretary of state and five county elections supervisors were initially sued. Johnson was not among the defendants.

At his deposition last October, Johnson was asked if in 2004 his office allowed voter registration applications to be corrected in the 29-day period between the registration deadline and election day.

"That's not a question I'm comfortable giving you a 'yes' or a 'no' on,'' he answered.

Diaz attorney Thomas B. Abt persisted: "Just tell me, yes, you allowed corrections, or, no you didn't allow corrections."

Johnson asked Abt to define "correction," and later said he would need to do more research.

Abt asked again. Still no answer.

"This is a very simple question," Abt said. "And if I can't get answers to very simple questions like this, we're going to need to adjourn the deposition and we may need to call the court."

Abt did get responses to two key questions. Asked if accepting corrections to incomplete registrations in the 29-day period led to voter fraud, Johnson said no. Asked if that process interfered with his ability to conduct an orderly election, Johnson again said no.

That testimony was important because a law enacted after the 2004 election prevented elections officials from making corrections after the close of registration. The Diaz attorneys intended to show that law was unduly restrictive, and Johnson's testimony suggested that in 2004 — when the law was not in effect — there were no problems, at least in Hillsborough County.

Abt called Johnson as his witness at the trial in February, but on the stand, Johnson gave different answers.

Asked if accepting late applications led to voter fraud, this time Johnson said yes.

"We had registrations that were — applications that were turned in that I believe were not signed by the individuals who purported to sign them." Asked for specifics, Johnson said a registration was turned in by Rico Suave, a professional wrestler who was not a Hillsborough resident.

Asked if his policy of correcting applications in 2004 interfered with his ability to conduct an election, Johnson testified: "Any exercise that takes away from the basics of our election interfere. So, to answer the question, the answer would be yes."

Abt pointed out the contradictions between Johnson's testimony at deposition and at trial. The defense objected that the plaintiffs were trying to undermine the credibility of their own witness.

In March, U.S. District Judge James Lawrence King ruled for the secretary of state. Closing the books 29 days prior to election day — and permitting no more corrections — was in the best interest of the state to conduct "an honest, fair and orderly election," he wrote.

The judge noted that he did not find anything to "impeach the general credibility of any of the (19 trial) witnesses."

Peter Antonacci, one of the secretary of state's attorneys, said Johnson's testimony was consistent with all the other elections supervisors who testified and that the plaintiffs chose not to challenge the judge's ruling.

Harris wrote that Johnson was a willing witness in the Diaz case and "pleased to participate'' in the NAACP proceeding.

"He is participating because he cares about the integrity of the voter registration system," Harris said. "He believes that the voter registration system must protect everyone's right to vote and make sure that every vote can be counted.''

Times researcher John Martin contributed to this report. Jeff Testerman can be reached at (813) 226-3422 or testerman@sptimes.com