Guest blogged by Ernest A. Canning

The state of Florida and it’s Secretary of State Ken Detzner (R) are knowingly violating Section 5 of the Voting Rights Act in their attempted purge of “potential non-citizens” from the Sunshine State voting rolls, according to a new federal lawsuit [PDF] filed by the ACLU and the Lawyers’ Committee for Civil Rights Under Law.

The complaint follows on the heels of a May 31, 2012 two-page letter submitted to FL election officials by T. Christian Herren, the chief lawyer of the U.S. Justice Department’s Voting Rights Division. In his letter, Herren opined that the state’s voter roll purge is in violation of Section 5 — at least in the 6 Florida counties “covered” by that section — because the state has not sought preclearance from either the DOJ or a federal court, as required by that section of the 40-year old federal law.

Additionally, the DOJ notes in its letter, the purge, coming as it does within the 90 days before Florida’s federal primary election, is also in violation of the National Voter Registration Act (NVRA) which covers the entire state.

In response, FL State Department spokesman Chris Cates initially said they would continue the purge nonetheless, as they were “firmly committed to doing the right thing and preventing ineligible voters from being able to cast a ballot.” In his official response to the DOJ a few days later, Detzner all but challenged the feds to bring a suit in order to stop the state from continuing their efforts.

Of the original 180,000 names identified by the state as potential non-citizens, out of some 11.3 million registered voters in the state of Florida, 2,700 were sent to county election officials with instructions to notify those voters that they had just 30 days to prove their citizenship or be removed from the rolls. As reported by the Christian Science Monitor, “Before heeding DOJ’s order to stop the purge” county election officials had identified just four noncitizens who “may have voted in past elections, making them potentially guilty of voter fraud,” while clearing hundreds of voters who had, in fact, been legally registered voters. Hundreds of others may have been removed from the rolls, despite being legally registered citizen voters.

As The BRAD BLOG previously reported, Herren had demanded that FL officials “advise whether the State intends to cease the practice,” but stopped short of issuing an actual “order” that FL immediately cease and desist. Such an order would have to come by way of an injunction issued by a U.S. District Court. The ACLU lawsuit now seeks that injunction even though, according to the Miami Herald, county elections supervisors across the state, led by Leon County’s Ion Sancho, are now refusing to carry out a purge which Sancho describes as “illegal.”

The ACLU lawsuit alleges facts that suggest the FL GOP is relying upon a FL Department of Highway Safety and Motor Vehicles (DMV) database that it knows cannot provide an accurate basis for establishing non-citizenship until 2017.

Unfortunately, this year’s purge in Florida continues a tradition that has been affecting legal voters in Florida — and, along with them, the rest of the nation — cycle after cycle since at least the 2000 election…

Phantom menace

In a 2007 report [PDF], Law Prof. Justin Levitt of NYU’s Brennan Center for Justice, wrote:

Levitt, who would go on to present compelling testimony debunking GOP “voter fraud” claims generally during September 2011 hearings before a U.S. Senate Judiciary Subcommittee pertaining to the recent spate of ALEC/GOP voter suppression laws, added in the Brennan Center report that what is far more common are bogus claims of non-citizen voting based upon inadequate databases.

“Naturalization documentation,” the Brennan Center report noted, “may find its way into the government files slowly, or not at all, leaving outdated or inaccurate information for investigators looking for fraud. And this, in turn, leads to flawed accusations that non-citizens have been voting, when the voters in question have in fact become fully naturalized American citizens.”

This is precisely what the ACLU complaint documents as now occurring in FL.

Secretary of State Detzner, the complaint alleges, has created the purge list based upon the fact that the FL DMV records don’t establish citizenship. The problem is that the FL DMV did not require proof of citizenship to individuals applying for new or renewed driver’s licenses until 2010. Many who received driver’s licenses prior to that date will not be required to present proof of citizenship until 2017. Therefore, the FL DMV database cannot, until 2017, serve as an accurate basis for citizenship determination.

Murat Limage, a named plaintiff in the ACLU lawsuit and resident of Hillsborough, a county covered by Section 5 of the VRA, last updated his driver’s license on 11/6/08. He became a naturalized U.S. Citizen on 10/19/10. Yet, on 03/13/12 the Hillsborough County Supervisor of Elections sent a letter advising him his name may be removed from the voter rolls unless he proved his citizenship within thirty (30) days.

While Limage produced his passport, proving his citizenship, the ACLU lawsuit seeks an injunction on his behalf as well as others because he has not received formal notification that he will be permitted to vote.

Multiple illegal FL GOP voter purges

As reported by the Sun-Sentinel, while the “potential non-citizen” excuse is new, this is by no means the first occasion in which the FL GOP has relied upon a faulty database as an excuse to purge thousands of eligible voters, though in the previous two occasions — 2000 and 2004 — the purported target was “convicted felons,” who are ineligible to vote in the Sunshine State.

In Armed Madhouse, investigative reporter Greg Palast touched upon the first purge which was carried out by then FL Secretary of State Katherine Harris (R), then a co-chair of the Bush/Cheney campaign.

This, of course, occurred in an election in which, per the official, Katherine Harris certified count after the U.S. Supreme Court blocked the state from actually counting the voters’ ballots, George W. Bush “won” FL and the Presidency by just 547 votes.

The FL GOP would come up with another 48,000 “felon voters” in 2004, but, the Sun-Sentinel adds, the state “pulled back” because of all the false positives.

In 2005, the GOP-controlled state legislature passed a “no match, no vote” law which gave election officials the power to preclude voting for the slightest divergence, such as a clerk’s clerical error or the inclusion of a middle initial instead of a full middle name, between a voter’s ID card and the voter database.

The FL GOP has not simply sought to prevent those who are already legally registered from voting via purges, but has repeatedly sought to prevent new voters from being added to the registered voter rolls.

Last month U.S. District Court Judge Robert L. Hinkle enjoined a 2011 law which imposed impediments to voter registration that were so onerous that the League of Women Voters of FL was forced to call a halt to their registration drives in the Sunshine State for the first time in 70 years. As revealed by Levitt’s Senate testimony last year, the FL GOP rammed through its 2011 limitations on voter registration despite the fact that nearly identical registration restrictions in a 2005 statute enacted by the GOP-controlled state legislature had been struck down as unconstitutional in League of Women Voters of Florida v. Cobb.

Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968). Follow him on Twitter: @Cann4ing.