Florida Secretary of State Ken Detzner essentially dared the Justice Department to sue the state over its voter purge in a sharply worded letter on Wednesday, accusing DOJ of wanting to make it easier for non-citizens to vote.
“This hardly seems like an approach earnestly designed to protect the integrity of elections and to ensure that eligible voters have their votes counted,” Detzner wrote in the letter.
DOJ said in a letter to Florida last week that its voter list purge ran afoul of the Voting Rights Act and the National Voter Registration Act.
Detzer countered that DOJ’s interpretation of the NVRA — which says voters can’t be removed from the rolls within 90 days of an election — is incorrect. Florida, of course, has removed legitimate voters from its rolls because of faulty data about noncitizens.
“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.”
Via The Miami Herald, the full letter is reprinted below.
T. Christian Herren United States Department of Justice Civil Rights Division Voting Section - NWB 950 Pennsylvania Ave, NW Washington, D.C. 20530Re: Florida’s Continuing Commitment to Protecting Citizen Voting Rights
Dear Mr. Herren:
I write in response to your letter of May 31, 2012, which questions the Florida Department of State’s ongoing efforts to protect the integrity of elections and to maintain current and accurate voter registration rolls. Your letter suggests that the Department of Justice (DOJ) opposes these efforts, and reads federal law to prohibit Florida from verifying the eligibility of registered voters and removing non-citizens from its voter rolls. The Department of State respectfully disagrees with DOJ’s position. The actions taken by Florida to identify and remove non-citizens from its voter rolls ensure that the right to vote of citizens is protected and is not diluted by the votes of ineligible persons.
For nine months, Florida has sought access to the best available information to ensure the accuracy of our voter registration rolls: the Systematic Alien Verification for Entitlements (SAVE) database maintained by the Department of Homeland Security (DHS). Because DHS has repeatedly blocked Florida’s access, we have been unable to send additional information to supervisors of elections since April 30, 2012. We continue to wait for access to the most current information available, and we respectfully reiterate our request for immediate access to the SAVE database.
At the outset, it is important to note that the process initiated by the Florida Department of State has identified registered voters who, by their own admission, are not United States citizens. These ineligible persons have been appropriately removed from the voter rolls. 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.
Under section 98.075, Florida Statutes, a law which has been duly precleared by the Department of Justice, a supervisor of elections must take the following actions before any person’s name may be removed from the statewide voter registration system:
• Notify the registered voter of his or her potential ineligibility by certified mail, return receipt requested, including any documentation upon which the potential ineligibility is based;
• Allow the registered voter 30 days to respond by admitting or denying the accuracy of the information underlying the potential ineligibility;
• Provide the registered voter a hearing, if requested, for the purpose of determining eligibility;
• If the mailed notice is returned as undeliverable, publish notice in a newspaper of general circulation in the county where the voter was last registered, with an additional 30-day opportunity for the registered voter to resolve the matter;
• At the conclusion of the notice and hearing process, make a final determination of the voter’s eligibility based on a preponderance of the evidence before the supervisor of elections;
• Allow for an additional appeal of any determination of ineligibility before a state circuit court.Other duly-precleared Florida laws provide additional safeguards to protect the rights of lawfully registered voters. See § 98.081(2), Fla. Stat. (providing for restoration of any voter erroneously removed from the statewide voter registration system); § 101.048, Fla. Stat. (allowing any voter whose eligibility cannot be determined to vote a provisional ballot).
As explained below, Florida’s implementation of these state statutes is fully consistent with federal law.
The Voting Rights Act
Florida’s actions are consistent with the Voting Rights Act. The State of Florida is not a covered jurisdiction subject to the preclearance requirements of Section 5 of the Voting Rights Act. As for the role of the supervisors of elections in Florida’s five covered counties, they are simply administering a law that the Department of Justice has duly precleared. See § 98.075, Fla. Stat.
The National Voter Registration Act
Florida’s actions are also consistent with the National Voter Registration Act. 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 (such as deceased persons, convicted felons, and the mentally incompetent) who may have lawfully been on the rolls at one time but have later become ineligible. Such a result is plainly contrary to the NVRA’s express purpose of “ensur[ing] that accurate and current voter registration rolls are maintained.” 42 U.S.C. § 1973gg(b)(4).
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. If DOJ applies the NVRA in this manner, then 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.
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