The Scott administration disagrees with the federal Department of Justice’s interpretation of elections law, saying the state’s efforts to clear its voter rolls of non-citizens are not only legal but necessary to ensure eligible voters’ choices aren’t diluted.
In a letter Wednesday to the DOJ, Secretary of State Ken Detzner defended the state’s voter purge effort, echoing Gov. Rick Scott’s assertion that it wouldn’t disenfranchise any legal voters and that the only people removed would be those who are truly ineligible to vote.
Detzner also turned the allegations of illegality back on the Obama Administration, arguing it has improperly denied Florida access to a key federal database that would help the state root out ineligible voters.
Civil rights groups and Democrats have criticized the state’s purge effort as too broad-brushed and have raised the prospect that it could capture legal voters – who may not respond to a warning from local officials that they are about to be removed from the rolls unless they can prove they’re legal citizens.
That won’t happen, Detzner said.
“Pursuant to Florida law, no person has been or will be removed from the voter rolls without the fundamentals of due process: notice, an opportunity to be heard, and a determination by the county supervisor of elections that a preponderance of the evidence shows the voter is ineligible,” Detzner, a Scott appointee, wrote.
The letter, sent to DOJ elections lawyer T. Christian Herren, was in response to one sent by Herren last week to the state. The Herren letter raised the possibility that Florida could be violating federal voting laws with the purge, primarily by continuing to remove voters less than 90 days before an election. Herren’s letter also suggested that the state could be violating federal requirements for getting prior approval for major changes in election procedures in certain jurisdictions.
Detzner said the preclearance requirement isn’t an issue in the five Florida counties normally required to get such approvals, because a Florida statute spelling out the process for cleaning up the voter rolls, which supervisors are following, has already been cleared by the Justice Department.
The 90-day requirement for stopping certain voter roll clean-up efforts, which is part of the federal National Voter Registration Act, simply can’t apply in this case, Detzner argued. The purpose of that law was to ensure “accurate and current voter registration,” he noted. And if it did apply, it wouldn’t be constitutional, he argued.
“If the effect of the NVRA is to force a state to allow never-eligible non-citizens the opportunity to vote, then the statute might violate the Equal Protection Clause of the Constitution, which guarantees that the right to vote cannot be denied by a dilution of the weight of a citizen’s vote,” Detzner wrote.
Even if the 90-day requirement were valid the only reason Florida has started trying to remove voters now is that it was prevented from beginning the process earlier by the federal government, Detzner charged.
That’s because the Department of Homeland Security has “repeatedly ignored or rebuffed” the state’s efforts to get access to a federal DHS database, known as SAVE, that would help Florida in identifying non-citizens for removal from the rolls.
“By denying Florida access to the SAVE database, DHS appears to have violated federal law, which provides that states may use the SAVE database ‘for any legal purpose such as … voter registration,'” Detzner alleged. The federal law also requires DHS to turn over that database when asked, he said.
“In sum, the practice DOJ now appears to be endorsing is as follows,” he wrote. “The federal Department of Homeland Security may, for months, violate federal law and deny Florida and other states access to the SAVE database so that the federal Department of Justice may then assert that the resulting delays in a state’s election-integrity efforts violate the time periods established in another federal law. This hardly seems like an approach earnestly designed to protect the integrity of elections and to ensure that eligible voters have their votes counted.”
The Scott administration also turned around the Justice Department’s demand for information on the purge process with a demand for answers to questions that Detzer has. He asked the DOJ to respond by June 11 to four questions:
-Whether DOJ agrees Homeland Security should provide access to the SAVE database.
-Whether DOJ’s position is that federal law prohibits Florida from removing non-citizens from voter rolls between now and the November election.
-If not, what DOJ thinks Florida should do to remove non-citizens between now and then.
-And if so, whether Florida could even identify non-citizens for later removal from the rolls after the election.
Scott came under fire shortly after asking local elections supervisors – who are independently elected and don’t technically answer to Tallahassee – to use a list generated by the state that was pulled from a driver’s license database to identify potentially ineligible voters for removal.
But in recent days, Scott and his supporters have pushed back hard. The Republican Party has taken up the issue, sending out regular messages about the logic of clearing the voter rolls of non-citizens.
And in what was clearly a coordinated effort, Scott this week began getting encouragement emails, after weeks of not getting any email on the subject.
Hundreds of similar emails from supporters began showing up in the last two days in Scott’s inbox, which is open to the public and media to view.
“I encourage, implore, and demand that you do not give into the pressure and demands of the federal government,” an emailer named Troy French wrote to Scott. An emailer from Arizona sent a similar note urging Scott to clean up the Florida voter rolls and another emailer told Scott it is easy for poll officials to “create additional votes” from non-citizens.
Detzner’s letter in defense of Florida’s practice also closely tracked an opinion piece written in the National Review Online by Republican lawyer Hans von Spakovsky. A fellow at the Heritage Foundation, von Spakovsky was counsel to the assistant attorney general for civil rights at the Justice Department in the Bush administration, where he was in charge of enforcement of the voting rights laws DOJ cited in its questions to Florida. The state’s response to DOJ was essentially von Spakovsky’s argument.
Local supervisors of elections had been advised by their association’s legal counsel to hold off on actually removing voters from the rolls pending the state’s response to DOJ on its questions. A lawyer for the supervisors’ association told the South Florida Sun-Sentinel late Wednesday that that recommendation wouldn’t immediately change.
Liberal opponents of the purge effort redoubled their criticism on Wednesday after Detzner’s response.
“The fact that Gov. Scott is using the nearly nonexistent threat of voter fraud as an excuse to continue his dragnet voter purge reveals his true intention to rig the 2012 election,” said Mark Ferrulo, executive director of the liberal advocacy group Progress Florida.
Senate Democratic Leader Nan Rich of Weston, who is so far the only Democrat who has announced a challenge to Scott in the 2014 election, also criticized the governor.
“Gov. Scott needs to pay more attention to the affairs of our struggling economy rather than trying to stack the outcome of an election,” she said.
By David Royse
