By Ashley Lopez
Florida Center for Investigative Reporting
A federal court ruled Tuesday that Gov. Rick Scott’s effort to remove non-citizens from the state’s voter rolls several weeks shy of the 2012 presidential election was illegal.
The voter purge, which was eventually halted by local election officials in Florida before that 2012 election, has been fraught with problems. For one, the state’s list of suspected non-citizens was error-ridden and included names of many actual U.S. Citizens, including war veterans.
Civil rights groups also filed lawsuits against the state because the purge disproportionately targeted minorities.
Ultimately, the court ruled that the timing in particular, was the most problematic aspect of the purge, because it violated the National Voter Registration Act (NVRA).
The decision by a three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta invalidated efforts by the Department of State to identify and remove noncitizens from the voter rolls in advance of an election in which a Florida victory was crucial to President Barack Obama’s re-election.
Federal law prohibits states from “systematic” removals of voters less than 90 days before a federal primary or general election.
Judges said they ruled in a case that might otherwise be moot to prevent Scott’s administration from undertaking a future purge effort.
… The 2-1 decision was written by Judge Beverly Martin and joined by Judge Adalberto Jordan, who was born in Cuba and is a University of Miami law school graduate and a former assistant U.S. attorney in Miami. Judge Richard Suhrheinrich dissented.
Scott’s chief elections official, Secretary of State Ken Detzner, issued a terse five-word statement through a spokeswoman: “We are reviewing the decision.”
The state could ask for a rehearing before the full 11th U.S. Circuit Court of Appeals.
According to a statement from The Advancement Project, which was part of a coalition of civil rights and minority groups that intervened in this lawsuit:
The appellants included Karla Arcia and Melande Antoine, two Miami citizens wrongly targeted as non-citizens under Florida’s voter purge, and the following organizational plaintiffs: Florida Immigrant Coalition, National Congress for Puerto Rican Rights, and 1199 SEIU United Healthcare Workers East-Florida. Led by Lorelie Masters, now at Perkins Coie LLP, and Marc Goldman, of Jenner & Block LLP, the legal team included a coalition of civil rights groups – Advancement Project, Fair Elections Legal Network, LatinoJustice PRLDEF and Project Vote — as well as SEIU and the Law Offices of Chavez & De Leon, P.A.
…The victory is the second win for the litigation team, which in 2012 settled a separate discrimination claim in the same case. The initial purge, which flagged nearly 2,700 registered Florida voters as alleged non-citizens, disproportionately affected voters of color. More than 82 percent of the voters who received notice letters were people of color, and many turned out to be eligible citizens.
“The Court’s decision is a victory not only for the thousands of voters who were wrongly targeted by Florida’s 2012 purge list; it’s a win for naturalized citizens and for democracy,” said Katherine Culliton-González, Advancement Project Director of Voter Protection. “Importantly, the Court again recognized the standing of advocacy groups acting on behalf of its affected members. With another election ahead of us this year, we remain vigilant to ensure that politicians do not again restrict the fundamental right to vote.”
“The Court recognized, as Congress did in passing the NVRA, that systematic removal of voters from the rolls is complicated and should not be attempted just prior to an election. False positives during voter purges put legitimate voters at risk, and conducting a large scale voter purge within 90 days of an election only heightens the risk that these mistakes will occur,” said Courtney Mills, Staff Attorney for the Fair Elections Legal Network. “We applaud the Court for correctly finding that Secretary Detzner violated federal law with this purge and for protecting voters across the state from future risk of these problematic efforts leading up to Election Day.”
Following the bungled attempt to purge the voter rolls in 2012, state officials planned on trying to launch another non-citizen voter purge. This time, they were planning to work with a better list, which would be cross-referenced with a federal immigration database, called SAVE.
However, state officials announced that the SAVE database was undergoing a redesign. Florida Secretary of State Ken Detzner announced just a few days ago that the state would be halting the non-citizen purge in the meantime.
It’s unclear what this ruling means for any future purge effort. Mostly, this ruling makes it clear that the state can’t begin “systematically” removing names within 90 days of an election.
Here are two excerpts from the majority opinion—via University of Florida elections expert Daniel Smith:
We reject Secretary Detzner’s attempts to have us decide today whether both the General Removal Provision and the 90 Day Provision allow for removals of non-citizens. Certainly an interpretation of the General Removal Provision that prevents Florida from removing non-citizens would raise constitutional concerns regarding Congress’s power to determine the qualifications of eligible voters in federal elections. Cf. Arizona v. Inter Tribal Council of Arizona, Inc., ___ U.S. ___, 133 S. Ct. 2247, 2257 (2013) (“Arizona is correct that the Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them.”). We are not convinced, however, that the Secretary’s perceived need for an equitable exception in the General Removal Provision also requires us to find the same exception in the 90 Day Provision.
…In closing, we emphasize that our interpretation of the 90 Day Provision [of the NRVA] does not in any way handcuff a state from using its resources to ensure that non-citizens are not listed in the voter rolls. The 90 Day Provision by its terms only applies to programs which “systematically” remove the names of ineligible voters. As a result, the 90 Day Provision would not bar a state from investigating potential non-citizens and removing them on the basis of individualized information, even within the 90-day window. All that the 90 Day Provision prohibits is a program whose purpose is to “systematically remove the names of ineligible voters” from the voter rolls within the last 90 days before a federal election. 42 U.S.C. § 1973gg-6(c)(2)(A).
Just a few days ago, following the announcement that the state was halting the purge, Scott maintained that the voter purge itself is a good idea.
He said during a press gaggle that his main concern is still protecting the right to vote.
“I don’t want it to be diluted by somebody that doesn’t have the rights to vote,” he said. “The national database is doing some changes. The secretary of state’s office is working with them. So, they are working to make sure everything is right. I don’t want anybody’s sacred right to be diluted.”