It’s no surprise that Florida’s decision to once again try to scrub the voter rolls of noncitizens has prompted an outcry from voting-rights advocates and local elections administrators. While no names have yet been removed, letters went out to elections supervisors last week about the new effort. Republican Secretary of State Ken Detzner has begun creating a new list of suspect voters. Famous for its poorly run elections, the state is picking up where it left off last year, when Detzner announced that he had a list of more than 180,000 voters who shouldn’t have been on the rolls. The list—90 percent of whose voters were nonwhite—turned out (surprise!) to be based on faulty and outdated information. The previous push also happened fewer than 90 days before Florida’s statewide primaries, leaving little time to alert the voters whose registration was being questioned and allow them to bring documentation to show they were eligible to vote. Elections supervisors in many counties began raising concerns about inaccuracies in the lists they’d received. The Department of Justice ordered the state to stop the purge and soon after, the Florida State Association of Supervisors of Elections also recommended counties halt the process. The list later got chopped down to 1,800 names, and then to fewer than 300.
Legal pressure was also key in stopping the assault on voter rights. Among several lawsuits, one brought by immigrant-rights group Mi Familia Vota argued that in addition to the purge being discriminatory, the state had violated Section 5 of the Voting Rights Act because it did not receive permission in advance from the Justice Department to start its hunt for noncitizens. Section 5, which the Supreme Court ruled unconstitutional in its current form in June, required states with a history of discrimination to get pre-clearance from federal authorities before making changes to election law. Florida was among the states that needed prior approval, but it did not apply for it in that case. Eventually, the courts granted an injunction preventing the state from sending the names of potential noncitizens to counties.
Now, after the Supreme Court ruling this summer, states do not need to obtain pre-clearance for changes to election law. The decision opened the door to a number of Republican-backed laws that will make it harder to vote and, Republicans hope, decrease turnout, giving the GOP an electoral edge. In Florida, a Tampa judge found the stay of last year’s purge voided now that Section 5 is no longer in effect, and threw it out. Governor Rick Scott seemed eager to restart the noncitizens purge as soon as possible. Elections supervisors, however, are still wary. Duval County's elections chief Jerry Holland, a Republican, told The Tampa Bay Times that the 2012 fiasco was "embarrassing." The purge of 2013, he said, "has to be a better scrub of names than we had before."
Anything that comes close to resembling the 2012 effort will certainly prompt lawsuits. While Section 5 may be moot for now, discriminatory voting procedures are still against the law. The trouble is, voting-rights lawyers face a much tougher battle because the burden of proof has shifted. Under Section 5, states had to prove election changes wouldn’t have a discriminatory effect. Now, lawyers challenging the changes have to prove that they would. (Another case against the 2012 purge, arguing it violated the Voting Rights Act’s ban on discrimination, will be argued in October.)
But lost in the controversy is the nuanced difference between a good and a bad ”purge” of voter rolls. Maintaining accurate voter lists isn’t a bad thing; it’s a key part of administering elections effectively. A report from the Pew Charitable Trusts last year showed that that one out of every eight voter-registration listings in the country either had inaccuracies or was no longer valid. States can improve this situation by relying more on online voter registration, which has fewer errors than the pen-and-paper method, and by integrating voter rolls with other state records so that when someone changes her address at the DMV, she can also change it on her voter registration.
Accurate information helps elections administrators communicate with voters, and makes the process on Election Day more orderly. It also saves money since only valid voters receive mailings. “We know that clean rolls make life easier for everybody,” says Myrna Perez, deputy director at the Brennan Center for Justice’s Democracy Program, which focuses on voting rights. “It's good for voters, it's good for elections officials.”
Florida’s noncitizen purge, however, is distinct from the routine list-maintenance that the state, like most others, already performs. Much of that work is done without fuss. Each month, county supervisors get lists of changes to the rolls: those who have passed away, moved out of state, been found guilty of a felony, or gotten back their right to vote after a felony conviction. While far from perfect, these lists are straightforward and transparent—they’re updated on a regular basis, with public notice, and use relatively reliable data. They don’t, however, weed out noncitizen voters.
The question is how the newest effort to purge noncitizens from the voting rolls will work. This time around, Detzner and his staff are compiling their list of names based on Homeland Security databases—more accurate than the databases they used to create the erroneous list in 2012, but still far from complete. Furthermore, it’s not yet clear how wide a net the secretary of state’s office will cast—will they gather up tens of thousands of people who “might” be ineligible or hundreds who are likely ineligible?
Unlike other methods of maintaining voter rolls in which officials passively receive lists of names to trim, seeking out noncitizens is significantly more complicated because it requires officials to figure out who shouldn’t be on the list. According to Daniel Smith, a political science professor at the University of Florida who was involved in one of the lawsuits over maintaining voting lists last year, there’s a high risk of wrongly flagging eligible voters when officials try to find ineligible registrations. "I'm concerned about the method of identifying individuals in the voter roll process," he says. "What is their algorithm to sift through the voter rolls? I have no idea what they're looking at."
While we know the state will target noncitizens, we don’t know exactly what criteria Florida will use to identify them. Figuring out who is a citizen isn’t as simple as you might expect. Unlike other countries, the U.S. doesn’t have a centralized list of its citizens that officials can use, and the various Homeland Security databases are neither complete nor designed for checking voter eligibility. The problem is complicated by the fact that Florida has among the highest rates of naturalization in the country. Someone who was not a citizen last year may be a citizen this year.
Just how successful this new hunt for ineligible voters may also depend on how long the lists are this time around. Unlike routine maintenance, the noncitizen purge in 2012 resulted in an enormously long list. According to Perez, trying to do big purges—like noncitizen purges—once a year leads to errors because, as the lists get longer, the odds of mismatching voter records go up. The chance of hitting on people who share the same name and birthdate increases as the number of people in a sample grows. That means one John Smith who’s a citizen could get flagged as another John Smith who is not.
But unlike in 2012, when the purge occurred only months before the presidential election, voters this time will at least have a longer timeframe to figure out if they’ve been incorrectly flagged and to get back on the list. County supervisors have more time to research the names and see if the voters are in fact ineligible. Furthermore, voters have more time to receive notification and challenge the state’s determination.
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