Gov. Rick Scott’s administration is positioning itself for a showdown with the U.S. Department of Justice for demanding that Florida cease searching for and purging noncitizen voters.
The DOJ gave Florida until Wednesday to respond to a letter, sent last week, that said the purge probably ran afoul of two federal voting laws.
Florida will respond, but it probably won’t quit its effort and will likely ask the DOJ to clarify its interpretation of the federal laws it cited.
“Our letter will address the issues raised by DOJ while emphasizing the importance of having accurate voter rolls,” said Chris Cate, spokesman for Florida Secretary of State Ken Detzner, who’s in charge of the state’s elections division.
Cate would neither confirm nor deny what was in the state’s response, but he acknowledged that the state disagrees with the federal government and doesn’t plan to throw in the towel. “We know we’ve been acting responsibly,” he said.
If Scott’s administration stares down the DOJ, it will only heighten the partisan feud over the voter rolls in the nation’s largest swing state.
Liberals will protest at what they call “voter suppression” because so many of the targeted potential noncitizens — 87 percent — are minorities. Conservatives will cheer a Republican who opposes what they see as one of the most-politicized agencies under President Barack Obama, DOJ’s voting section. Some want Scott to force the DOJ to sue. A DOJ spokesman refused comment.
If the state pushes ahead, its defiance or resistance might be more symbolic than actual.
The attempted purge has been put on hold in nearly all 67 counties after the DOJ demanded the effort cease. Also, the state-produced list of nearly 2,700 suspected noncitizen voters was generated with some outdated data, targeing hundreds of actual citizens who are lawful voters. So far, no one has been purged who has not admitted that he or she is a noncitizen.
Without the counties, the purge effort can’t go on because the 67 independently elected supervisors are in charge of voter rolls in each of their counties. The state is, in one sense, just the custodian of all those records.
Regardless of who does the actual purging, the federal government wants it to stop, according to the Thursday demand letter from T. Christian Herren Jr., the Justice Department’s lead civil rights voting lawyer.
He said the state effort appears to violate the 1965 Voting Rights Act, which affects at least five Florida counties, and the 1993 National Voter Registration Act, which obligates states to remove ineligible voters from rolls.
Known as Motor Voter, the registration act also lays out specific purge rules and this requirement: “A State shall complete, not later than 90 days prior to the date of a primary or general election for Federal office, any program the purpose of which is to systematically remove the names of ineligible voters from the official lists of eligible voters.”
Herren pointed out that, under the law, the state had to stop May 16 due to the Aug. 14 primary.
Republican lawyers in Florida’s Capitol are wrestling with that 90-day prohibition and the definition of “systematically.” Some argue that, since the state is not actually removing people from the rolls — the counties would be — it might be able to continue checking voter-registration data with limited citizenship data contained in a state motor-vehicle database. Also, the state could argue it has already completed its checks, before the 90-day window, and now it’s leaving it up to the counties.
Technical arguments aside, Republicans say there’s also a question of the intent of Motor Voter, which congressional Republicans balked at until they got language added in that concerned removing ineligible voters.
“The law says states should clean up the voter rolls and that’s what Florida’s doing,” said Joseph diGenova, a conservative former Reagan-era U.S. Attorney for the District of Columbia.
“The DOJ’s Civil Rights division is out of control. Florida should fight,” he said. “This is a brazen effort by the [DOJ] to intimidate the states into doing nothing.”
But Penda Hair — co-founder of the voter-advocacy group The Advancement Project, which called on DOJ to get involved — disagrees. She said election officials may take steps to ensure the reliability of the voter rolls, but any systematic reviews should be done in years when there are no federal elections.
The state’s noncitizen purge is dangerous, she said, because it could have a disproportionate impact on Hispanic and Haitian voters. And the purge is happening too close to the election, she said, making it harder for people to verify their citizenship before Election Day.
"The state is flouting the federal law," Hair said. "This is a hugely overbroad purge."
Cate, the state elections spokesman, said the state continues to disagree with the DOJ, the Advancement Projects and other groups.
“DOJ is making the same argument as the groups that have sent letters to us,” Cate said. “If we disagree with the interpretation — it doesn’t matter who’s raising it — we disagree with the interpretation.”
Florida is one of a handful of states required to seek federal approval for any voting changes that could affect minority voting under the Voting Rights Act. But this requirement applies in only five Florida counties: Monroe, Hillsborough, Collier, Hendry and Hardee.
Because Florida had never before sought to identify ineligible noncitizen voters, these new procedures should have first been approved by the U.S. Attorney General or a panel of federal judges, said Katharine√ Butler, a law professor and voting-rights expert at the University of South Carolina.
However, if the noncitizen purge were not enforced in the five counties covered by the Voting Rights Act, the program may be able to go forward without federal scrutiny in the 62 other counties, Butler said.
Butler said the danger of widespread voting by noncitizens also seems remote. "It seems to be an unnecessary fight, a big waste of time on everybody’s part," she said.
With the purge in abeyance, Miami-Dade County — the most-populous in the state — has so far identified 13 noncitizens on the rolls, two of whom have voted and been referred to the State Attorney’s Office for investigation. It’s a third-degree felony for a noncitizen to vote.
The county has determined that about 500 others are lawful citizens out of more than 1,600 names of potential noncitizens flagged by the state. About 1,100 more have not been identified either way and could be eligible to vote this year whether they’re citizens or not if the purge stops.
“We’ve been acting responsibly through this process,” Cate said. “And our letter will reiterate that while addressing the concerns raised by DOJ. We have continued our efforts to identify ineligible voters.”
Whether DOJ — and ultimately the courts — will let the state continue is yet to be seen.
Miami Herald reporter Scott Hiaasen contributed to this story.