Florida files suit against federal government for database needed in voting purge

Gov. Scott sues for database access while the feds go to court to stop the voter purge.
Published June 11 2012
Updated June 12 2012

Gov. Rick Scott and President Barack Obama's administration traded legal barbs and counteraccusations Monday as each side announced it would sue the other over Florida's controversial noncitizen voter purge.

Scott's chief elections official sued first, filing a federal lawsuit in Washington that accused the U.S. Department of Homeland Security of unlawfully refusing Florida access to a federal database that could help the state spot and remove noncitizens from the voter rolls.

"We can't let the federal government delay our efforts to uphold the integrity of Florida elections any longer," Florida Secretary of State Ken Detzner said. "We've filed a lawsuit to ensure the law is carried out and we are able to meet our obligation to keep the voter rolls accurate and current."

The state and county officials say they have found 141 noncitizens on the voter rolls so far, at least 47 of whom may have unlawfully cast ballots. More than 500 others have been identified as actual citizens and lawful voters.

Moments after the state filed suit, Assistant U.S. Attorney General Thomas E. Perez roared back in a sharply worded five-page letter from the U.S. Department of Justice, which ordered the state two weeks ago to stop the purge because it could violate two federal voting laws.

The state's program is too "faulty" and comes too close to election time to not endanger the voting rights of thousands of lawful U.S. citizens, Perez wrote. He said Florida has repeatedly ignored Homeland Security's warning that the department's database, known as SAVE, isn't designed for the noncitizen hunt on which Florida embarked.

"The significant problems you are encountering in administering this new program are of your own creation," Perez wrote.

"Your claim that the Department of Justice and Department of Homeland Security have worked in concert to deny Florida access to the SAVE Program is simply wrong," Perez added. "Please immediately cease this unlawful conduct."

Perez wrote his letter in response to a letter last week by Detzner. Detzner, in turn, was responding to a DOJ demand that Florida cease the purge. Perez said that because of Florida's "unwillingness" to comply with the law, "I have authorized the initiation of an enforcement action against Florida in federal court."

Meantime, the American Civil Liberties Union has also sued the state to stop the effort, which is largely on hold in nearly every county because elections supervisors say they're concerned with the quality of the 2,700-person list of potential noncitizens generated by the state.

That's a fraction of a list of 180,000 potential noncitizens the state initially identified. That larger list has not been released.

The fight between the state and federal government is but one battle in the war over voting rights and voting integrity in the nation's most important swing state, where the scars of voting irregularities were magnified in the 2000 elections.

Liberals accuse Scott of "voter suppression;" conservatives say the Obama administration is allowing "voter fraud."

So far, there's less evidence of suppression and more evidence of fraud.

The number of noncitizens who are on the rolls or appear to have cast unlawful ballots grows by the day. And there's no evidence yet that any lawful voter has been kicked off the rolls. Still, it's tough to prove if someone actually cast an illegal ballot.

Consider the case of Andre Fiset, a 59-year-old noncitizen from Quebec who lives in Hollywood. Records show he voted before 2006 — far back enough that no records survive to show if he actually signed in and cast a ballot at the polls. He said he didn't.

"I don't know what this is about," Fiset said. "I didn't vote. They keep sending me voter cards, but I never voted."

He was removed last week from the voter rolls. It's a state and federal felony for noncitizens to register as voters or cast ballots.

About 87 percent of those listed as potential noncitizens are minorities, a Miami Herald analysis showed. Hispanics and Haitians are Florida's largest immigrant group. So any search of noncitizens will disproportionately target them.

Minorities account for 53 percent of the confirmed noncitizens who have actually been removed from the rolls, according to a Herald analysis of the available voting information for 87 noncitizens.

Still, to liberal groups like MoveOn, the bottom-line statistics are proof that the noncitizen voter purge is "racist."

Non-Hispanic whites and Republicans are the least likely to face the prospect of being identified as noncitizens and removed from the rolls. Of those so far removed, 41 percent are Democrats, 22 percent are independents and 31 percent are Republicans — which largely mirrors the state's party registration breakdown for its more than 11.3 million active voters.

"This is not a partisan issue," Scott said Monday on the conservative FOX News show Your World with Neil Cavuto, where he announced the state lawsuit. "This is an issue that we need to have fair elections in our state."

But the Justice Department and ACLU said the process of Florida's noncitizen purge program is the problem.

The ACLU sued Florida in federal court last week to stop the purge, saying the effort violates the 1965 Voting Rights Act, which requires Florida to get permission for election-law changes in Hillsborough, Monroe, Collier, Hardee and Hendry counties.

The Department of Justice said two weeks ago that the Florida effort probably violated the 1965 act as well as another federal law, the National Voter Registration Act, which bans voter purges within 90 days of a federal election, meaning the state is banned from purging the rolls after May 16.

But Secretary of State Detzner last week refused to stop and told DOJ in a letter that Justice is misreading federal law.

Detzner said Florida didn't need to seek federal permission under the Voting Rights Act to embark on the purge because DOJ had already signed off on a state law that allows Florida to remove noncitizen voters. Also, he said, the 90-day ban on purging voters doesn't apply to the removal of noncitizens.

Detzner and Scott have pointed out that Florida's purge would have been conducted much sooner, but the Department of Homeland Security refused Florida the right to access the SAVE database, which details which immigrants become citizens.

Florida first asked DHS for the database last year. Federal law says the database has to be shared.

But, for the first time publicly in response to the voter-purge issue, the federal government finally explained that Florida might not be able to use the database because the SAVE Program requires "unique identifiers… found on immigration-related documents" to produce accurate checks.

Without SAVE, Florida's elections division then began comparing the voter rolls with a Florida Department of Highway Safety and Motor Vehicles database, which contains some citizenship information.

But that information can be out of date. And that can lead the state to mistake a lawful voter as a potential noncitizen.

Those identified as noncitizens had 30 days to respond to county elections supervisors or risk being removed from the rolls after another 30 days. Florida law allows those who were removed to get back on the rolls and, if necessary, cast a provisional ballot on Election Day.

One wrongly identified potential noncitizen — 91-year-old Brooklyn-born, World War II vet Bill Internicola — didn't just prove his citizenship. He called his congressman, held a press conference and became the face of the program's errors.

The Justice Department referred to Internicola's case in Perez's letter.

"As one would expect with a new program that has not previously been tested against real-world information," Perez wrote, "your program has critical imperfections, which lead to errors that harm and confuse eligible voters."

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