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Published: Thursday, Jun. 07, 2012 / Updated: Wednesday, Jun. 13, 2012 07:53 AM

Florida Gov. Scott says voter purge is legal, DOJ is wrong

MIAMI -- 

Gov. Rick Scott’s election’s chief on Wednesday defiantly refused a federal demand to stop purging non-citizens from Florida’s voter rolls, intensifying an election-year confrontation with President Barack Obama’s administration as each side accuses the other of breaking federal law.

In a sharply worded letter, Scott’s administration claimed the Department of Justice doesn’t understand two federal voting laws at the heart of the dispute and was protecting potentially illegal voters more than legal ones.

Florida also accused another federal agency, the Department of Homeland Security, of violating the law by denying Florida access to a federal citizenship database.

“This hardly seems like an approach earnestly designed to protect the integrity of elections and to ensure that eligible voters have their votes counted,” said the letter, written by Scott’s hand-picked secretary of state, Ken Detzner, a fellow Republican.

Detzner also submitted a list of four questions that he wants the DOJ to answer.

In tone and substance, the letter all but dares the Justice Department to sue Florida for allegedly violating the 1965 Voting Rights Act and the 1993 National Voter Registration Act (NVRA), nicknamed “motor voter.”

Last week, after the Justice Department letter came out, county election supervisors suspended the purge. Several said a list of nearly 2,700 potential noncitizen voters — overwhelmingly minorities — was unreliable and included hundreds of actual citizens who are lawful voters.

The state’s latest action promises to escalate the debate over hunting down suspected illegal voters in the nation’s largest battleground state. Liberal groups, which requested DOJ involvement, condemned the Scott administration; conservatives praised it, slamming DOJ for its interference.

Meantime, Florida Attorney General Pam Bondi refused to rule out suing Homeland Security to gain access to its database for voter-registration checking. From voting to healthcare to immigration, Scott and Bondi, both Republicans, have shown few reservations in challenging the Obama administration.

The Justice Department’s top voting rights lawyer, T. Christian Herren, said last week that Florida’s voter-purge effort violated NVRA because it fell within 90 days of a federal election.

Detzner argues Herren misread the law, which only applies to purges of once-eligible citizens who become ineligible through criminal conviction, death or mental incompetence. The 90-day purge-ban, which has barely been litigated, largely applies to efforts to remove voters who have moved — not voters who were ineligible in the first place, Detzner said.

“DOJ’s reading of the NVRA would grant greater protection against removal from the voter rolls to non-citizens — who were never eligible to vote — than to other categories of registered voters,” Detzner wrote. “Such a result is plainly contrary to the NVRA’s express purpose of “ensur[ing] that accurate and current voter registration rolls are maintained.”

If the state followed the federal demand, Detzner wrote, then it would help unlawful voters cast ballots. And that could cancel out the ballots cast by lawful voters and would therefore violate the U.S. Constitution, Detzner said.

“If the effect of the NVRA is to force a state to allow never-eligible non-citizens the opportunity to vote,” he wrote, “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.”

And if that happens, Detzner said, citizen groups would sue.

“Presumably eligible voters in Florida have the right to bring a lawsuit in federal court to test whether their votes are being unconstitutionally denied by the federal government,” he wrote.

As for the Voting Rights Act claim, Detzner wrote, Florida already received federal permission to remove noncitizens, which is clearly spelled out in Florida law.

What’s more, the Voting Rights Act applies to only five Florida counties — Monroe, Hillsborough, Collier, Hardee and Hendry — and not the other 62 in Florida, including Miami-Dade, where about 1,600 of the 2,700 potential noncitizens were initially identified by the state in a database created by the Department of Highway Safety and Motor Vehicles.

It’s unclear if the Voting Rights Act requires the state to receive federal permission for the way in which he sought to identify noncitizens, by checking voter rolls with a motor-vehicle database that doesn’t have up-to-date citizenship information.

Detzner’s reasoning closely tracks an analysis by a former DOJ official, Hans von Spakovsky of the conservative Heritage Foundation, who arrived at the same conclusions.

Seminole County Supervisor of Elections Mike Ertel, who has been critical of the state’s handling of the database, said the federal government needs to explain why the Homeland Security database can’t be used to verify the status of voters.

"That’s a real question that needs to be answered," Ertel said.

DHS won’t comment.

Detzner wants DOJ to say whether Homeland Security must provide access to its citizenship database, which the state first asked for last October.

Detzner also asked the department to say whether NVRA prohibits the state from either removing — or merely checking the potential citizenship status — of noncitizen voters from the rolls until Election Day. And he wants DOJ to say what steps “Florida may take to identify and remove noncitizens.”

Detzner emphasized that "no person has or will be removed from the voter rolls without the fundamentals of due process, but liberal groups assailed the state’s decision. Said Mark Ferrulo of Progress Florida: "Rick Scott will stop at nothing to continue the GOP’s disgraceful legacy of disenfranchising voters in Florida."

Liberals have described the purge as an attempted act of “voter suppression,” in part because so many of the targeted potential noncitizens — 87 percent — are minorities. Whites and Republicans are the least likely to face removal.

A major reason minorities are disproportionately caught up in the hunt for noncitizen voters: Hispanics and Haitians comprise the state’s largest immigrant groups. Any effort to target noncitizens will focus on new immigrants.

About 500 people in Miami-Dade have been found to be lawful citizens and voters, and 13 noncitizens have been found. Two of them might have voted and could face prosecution. The county has been unable to verify the citizenship of more than 1,100 others.

Assuming the purge halts, those people could vote this year — even if some are noncitizens.

"Not a single eligible voter as far, as I know, has been removed from the voter rolls," Scott said Wednesday on WNDB radio in Daytona Beach, according to a News Service of Florida transcript. "Not one. And we’re working to keep it that way."

"Their vote should not be diluted by people who don’t have the right to vote," Scott said. "We need to be reviewing our voter rolls and making sure only those individuals who have the right to vote … are voting."