Florida's Voter Purge: What the Hell?

With a tangle of lawsuits and legal complexities, it's easy to get lost in the minutiae of Florida's voter-purge debacle. Last week, as a U.S. District Court ruled on one of the disputes between the Department of Justice and the state of Florida, most of the media discussion focused on who'd won and who'd lost in the rather nuanced court opinion. More legal action comes next week, and the discussion will likely be similar.

At its core, though, this is a story of how Florida's secretary of state cast suspicion on thousands of perfectly legitimate voters. Waving around a list of 180,000 potential non-citizens and sending out a sample of 2,700 to elections officials, the state's methodology was deeply flawed. Many of those identified had immigrated to this country and completed the arduous path to citizenship. Now they're at risk of being kicked off voter rolls. 

With voter-ID laws gaining popularity in states across the country, the purge constitutes a new front in the battle to protect citizens' rights to the ballot box. But following the drama is hardly an easy task. Here's a breakdown of the background and the four lawsuits around the purge.

The Background

In April, Florida Secretary of State Ken Detzner compiled a list of more than 180,000 registered voters who might be non-citizens. He then narrowed that to a list of 2,700, which he sent to local election officials with a list of instructions. Supervisors of Elections were to send a letter to each person on the short list, asking him or her to send back a form swearing that he or she was or was not a citizen. Detzner included a suggested form letter. If the person swore she was a citizen, she also had to include the relevant documentation. All of this was supposed to be done in 30 days—if there was no response, Detzner's letter stated the person could be removed from the voter rolls.

The problems were almost immediately apparent. Without approval from the feds, Florida had used its Department of Motor Vehicles and Highway Safety Registration, which had flawed and outdated citizenship information, to gather its lists. A person who had gotten a driver's license as a non-citizen and then been naturalized and registered to vote could easily be flagged if he or she had not yet renewed the driver's license. (They only need to be renewed every six years.)

The purge disproportionately affects nonwhite voters, who make up around 82 percent of the list (as compared with 30 percent of Florida's population). While white people make up 70 percent of the state's registered voters, only 16 percent of the list is white. Of the 2,700 listed, around 500 have proven themselves citizens thus far. So far, only around 100 of those 2,700 are ineligible to vote. The fate of the vast majority, however, is still unclear.

Some of the local election supervisors chose not to take any action, believing they lacked sufficient evidence. Voting-rights advocates began to pound drums and raise awareness of the problem. One of the people who received a letter, World War II vet (and legal voter) Bill Internicola, became the face of the flawed effort.

Lawsuit No. 1: Did Florida violate the National Voter Registration Act?

The Department of Justice filed a temporary restraining order to stop the purge. But on June 27, U.S. District Judge Robert Hinkle denied the order. Even so, the decision was far from a victory for the state. "The order denies the motion primarily because the Secretary has abandoned the program," wrote Hinkle in his opinion

The DOJ argued that the purge was discriminatory and had violated the National Voter Registration Act, which prevents states from conducting systematic purges within 90 days of an election. The reasoning is obvious: If mistakes are made, voters still have time to sort things out or re-register. Florida has a primary coming on August 14, well within the 90-day mark. The feds also pointed to the obvious discriminatory impact of the methodology—the vastly disproportionate number of naturalized, nonwhite citizens who were identified.

Hinkle ruled that the 90-day rule did not apply to revoking "improperly granted registration of a noncitizen." In other words, the rule was meant to keep eligible voters on the rolls but does not apply to removing people who should never have been on the rolls in the first place. As for the charges of discrimination, the judge was clear that the methodology had "major flaws" and "was likely to have a discriminatory impact on new citizens." However, because the secretary of state had largely ceased all efforts and was pursuing a new methodology using a federal database (see Lawsuit 2), the judge denied the DOJ's restraining order. Hinkle left open the possibility of reconsidering the case, should the secretary of state continue the discriminatory practices. "If the secretary or the supervisors of elections go forward with the program the secretary says he has abandoned," wrote the judge, "the issue can be revisited."

Lawsuit No. 2: Should Florida get access to a Homeland Security database?

That's just the beginning of the story. The state has its own plans for continuing the purge, this time comparing the 180,000 names with those in a federal database. Florida is suing the Department of Homeland Security for access to the Systematic Alien Verification for Entitlements program, which it says will determine just how many of those voters' names are ineligible. The idea here is that they can see the immigration status of the 180,000 people on the potential non-citizen list and then know whether the people are eligible voters. 

But the Department of Homeland Security has argued that Florida hasn't provided necessary technical information to make the matches between the list and the database. A June 12 letter from Alejandro N. Mayorkas, the director of U.S. Citizenship and Immigration Services, to Detzner explained that the Department of Homeland Security "does not allow verification based on name and/or date of birth alone" and argues Florida has not provided other requisite information that would allow for accurate matching. 

That's not the only problem, however. As Mayorkas's letter explains, the federal database only contains citizenship information on those born outside the U.S.; American citizens born in the country, it seems, wouldn't even be in the database:

The SAVE Program provides a means for state government entities to verify documentation regarding naturalized U.S. citizens, U.S. citizens born abroad who derived citizenship from U.S. citizen parentage and who have acquired DHS[Department of Homeland Security] certificates of citizenship, and the immigration status of defined categories of non-citizens. The SAVE Program relies on DHS records, which do not include a comprehensive and definitive listing of all U.S. citizens, including those born in the United States.

While the database can show if someone is a naturalized citizen or documented alien, the feds say Florida could not use the database to confirm whether someone is a U.S.-born citizen—which is the way 87 percent of Americans get their citizenship. 

Lawsuit No. 3: Did Florida violate the Voting Rights Act?

Yes, another lawsuit—this one from the ACLU and the Lawyer's Committee for Civil Rights Under Law. While the Justice Department's lawsuit focused on the National Voter Registration Act, this complaint claims that Florida violated the Voting Rights Act by pursuing the purge without getting permission from the feds first. Five counties in Florida with histories of voter suppression are listed in Section 5 of the Voting Rights Act, meaning they must get preclearance from the feds before implementing any significant changes to election law. In late May, the DOJ noted that Florida had failed to get its new procedures precleared, despite the fact that the purge effort included the five counties with particular histories of voter suppression. While the DOJ case did not center on the Voting Rights Act, this second case is focused largely on whether the state should have gotten preclearance before sending the list of 2,700 names to election officials. 

"We expect to have the state answer our complaint next week, and then we'll take it from there," says Dara Lindenbaum, associate counsel for the Lawyer's Committee.

Among the five counties in the state that require preclearance, Collier County has received the bulk of attention. "We know [Collier County] continued this process much longer than other counties did," Lindenbaum says. In fact, the county had taken the purge effort further; when individuals could not be reached by mail, county officials listed their names in the newspaper to serve as notice that they needed to show documentation or they'd be purged.

As The Nation's Ari Berman notes:

Collier County, which includes Naples, removed 26 alleged “non-citizens” from the rolls based on the state’s list—eight of whom did not respond to contact attempts from the county to determine whether they were or were not citizens. “The worst-case scenario is that we’ve wrongfully removed somebody from the rolls,” says Tim Durham, the county’s deputy elections supervisor. If that’s the case, legitimate voters wrongly branded as “non-citizens” would have to cast a provisional ballot, which may or may not be counted (Durham says two-thirds of provisional ballots are counted in Collier County).

Since election supervisors have significant autonomy, Lindenbaum says it remains unclear just what's happening in other counties around the state—i.e., which ones have stopped the purge completely and which ones will now resume. 

Lawsuit No. 4: Was the purge discriminatory?

Meanwhile, voting-rights groups, including the Advancement Project, have filed a complaint that focuses entirely on the purge's discriminatory effect on voters. The complaint points to the composition of the list of 2,700 names; 82 percent nonwhite, compared with only 16 percent of registered voters as a whole. "The numbers are glaringly disproportionate," reads the complaint. Furthermore, the groups argue the methodology "specifically targets naturalized citizens (as compared to persons born in the United States)."

There's likely more to come. According to the Miami Herald, after Judge Hinkle's decision to lift the stay on the purge, the legal adviser for the Association of Supervisors of Elections told members that they were free to start removing names, so long as there is "sufficient documentation." Democrats are pushing for Congress to review the state's timing and methodology in conducting the purge. A letter to the newspaper from the director of the state chapter of the League of Women Voters and a lawyer from the Brennan Center for Justice (both groups that submitted friend-of-court briefs supporting the DOJ) argues for continuing vigilance: "Given Florida's repeated history of error-ridden purges and its pending lawsuit seeking access to a federal database to help create a new purge list, there is good reason to keep close watch for Florida's next move."

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