DOJ responds to FL claim that feds illegally withholding DHS immigrant database
By Ernest A. Canning on 6/18/2012, 12:52pm PT  

Guest blogged by Ernest A. Canning

Last week, after notifying the state of Florida of its intention to do so, the U.S. Department of Justice (DOJ) filed a lawsuit [PDF], seeking to halt what Asst. U.S. Attorney General Thomas E. Perez described in his June 11, 2012 letter [PDF] to FL Sec. of State Ken Detzner (R), as "a new program for systematic voter removal, which may ultimately target more than 180,000 registered voters."

A longtime respected election official in the state went further, describing the attempted scrubbing of the rolls to be "un-American".

The lawsuit alleges that the ongoing, systematic voter removal program violates the provisions of the National Vote Registration Act of 1993 (NVRA), which "expressly forbids such removal programs during the 90-day period before an election for Federal office."

The complaint seeks not only an immediate federal court injunction to stop the purge, but an order directing FL officials "to take all steps necessary to ensure that no registered voter identified as potentially ineligible based on the [faulty FL Department of Highway Safety & Motor Vehicles] database and voter verification removed from the voter rolls within 90 days of a primary or general election for Federal office."

The injunction may prove to be necessary only in three of the Sunshine State's 67 counties --- Lee, Collier and Bay --- where election officials have signaled they intend to continue the allegedly unlawful voter roll purge, even after the actions taken by the DOJ.

When interviewed last week by Brad Friedman on the nationally-syndicated Mike Malloy Show, Leon County (Tallahassee), FL's legendary Supervisor of Elections Ion Sancho --- the man placed in charge of the aborted 2000 Florida Presidential recount --- explained the reasons why most of the Supervisors of Elections (both Democratic and Republican) in each of the state's 67 counties have now refused to carry out the state-ordered purge. He described the ongoing effort by the Governor and Sec. of State as "shameful."

The DOJ's 6/11/12 letter also responded to, and seemed to debunk, the claim made by FL that it had been denied access to a U.S. Department of Homeland Security (DHS) immigration database. The state, in its own lawsuit filed against the DHS last week, has cited lack of access to that database as their reason for using the less reliable state Dept. of Highway Safety and Motor Vehicles (DHSMV) database for the basis of its voter purge.

The purge, to date, has identifies hundreds of perfectly legal citizen voters for removal from the rolls.

The state of FL, in its response to the DOJ, appears not to be offering the full facts about their attempt to use the DHS database and, as it turns out, Republican Gov. Rick Scott should, by now, be very well acquainted with the perils of voter purges based on inaccurate an apparent victim of one such purge himself...

DOJ's twin obligations

Where the FL GOP has attempted to justify the purge of thousands of voters on the basis of the possibility that there may be non-citizens who have been registered to vote, the DOJ, by way of the 6/11/12 Perez letter to Detzner, explained that the DOJ, an agency headed by the nation's chief law enforcement officer, has an obligation to ensure "that all eligible citizens have the opportunity to register and vote, and that ineligible persons, including non-citizens, do not register and vote in federal elections."

Both the NVRA and the Help America Vote Act of 2002 (HAVA) mandate, as Perez observed, "that every person seeking to register to vote in a federal election swear or affirm under penalty of perjury their United States citizenship."

Moreover, he added, the DOJ "does not hesitate to investigate and, where appropriate, prosecute" all forms of voter registration and voting fraud, "including non-citizens."

FL purge violates the NVRA

As explained by Perez in his 06/11/12 letter:

Congress enacted the NVRA against a historical which many purge programs were initiated close to elections, which prevented or deterred eligible citizens from casting ballots in those elections. Where the registration status of eligible citizens is questioned close to an election, it creates significant confusion for both voters and election officials that cannot easily be resolved in the immediate pre-election period where there is insufficient time to identify errors or remedy incorrect removals. The 90 day quiet period in the NVRA protects these legitimate voters from being dropped from the rolls right before an election.

The DOJ complaint alleges that, under the NVRA, with certain exceptions not applicable in this case, any state program that seeks "to systemically remove the names of ineligible voters," must be completed by a state "no later than 90 days prior to the date of a primary or general election for Federal office." As a federal primary election is scheduled in the Sunshine State for 8/14/12, FL may not lawfully engage in this systematic form of removal after 5/16/12.

By way of an earlier 6/6/12 letter from Detnzer to the DOJ, FL declared that it "intended to proceed with [its] voter verification process," despite direction from the DOJ that the purge is in violation of the NVRA as well as the Voting Rights Act of 1965 (VRA) in a number of counties where the VRA requires federal preclearance of new election procedures.

'Round up the usual suspects.'

The process of targeting as many as 180,000 legal voters as "potential non-citizens" in order to identify, at most, a handful of non-citizens who may have voted in an election at some point, calls to mind a remark made by Captain Renault (Claude Rains) in the classic 1942 film, Casablanca: "Round up the usual suspects."

In covering the ACLU federal lawsuit filed recently in hopes of blocking the latest purge, The BRAD BLOG cited a study by the Brennan Center for Justice which revealed that illegal, non-citizen voting is about a scarce as hen's teeth. The "penalty (not only criminal prosecution, but deportation) is so severe, and the payoff (one incremental vote) is so minimal," the Brennan Center observed, that few could be expected to take the risk.

That position was seconded by Asst. AG Perez, who observed in his June 12 letter that "federal criminal laws [that] prohibit fraudulent voter registration as well as non-citizens voting...have proven quite effective in deterring non-citizens from registering to vote and from casting ballots in federal elections."

In its federal complaint [PDF], the ACLU alleged that FL Secretary of State Detzner created the "potential non-citizen" purge list based upon a FL DHSMV database which is incapable of establishing non-citizenship as the DHSMV did not require applicants for new or renewed driver's licenses to present proof of citizenship until 2010. Many, like named plaintiff, Murat Limage, became naturalized citizens after their driver's license was last updated, so that information is not reflected accurately in the state database.

The DOJ, in its federal complaint, alleges that FL officials are knowingly relying upon an "outdated and inaccurate database" that has put "U.S. citizens who are eligible to vote" at risk of being disenfranchised; that this has included not only recently "naturalized U.S. citizens" but also "native-born citizens, including decorated combat veterans who served in the United States Armed Forces."

As we previously reported, those ensnared by the purge included U.S. citizens like Bill Internicola, the 91-year old, Brooklyn-born, World War II veteran and Bronze Star recipient who fought in the Battle of the Bulge and Archibald Bowyer, another 91-year old WWII vet who has been a citizen since the age of 2, and who received his letter from the state warning he would be purged just as his wife had recently died.

Disturbingly, this "shameful", knowing reliance upon an inaccurate database comes at the behest of a governor who, from personal experience, knows that it could interfere with a citizen's lawful right to vote. In 2006, before he was elected to office by the state of Florida, Gov. Rick Scott (R) was forced to cast a provisional ballot because Collier County election officials, based on a Social Security Death Index Record, mistakenly believed he was dead.

Equal Protection

Although it was not directly mentioned in either the ACLU or DOJ complaints, there is an Equal Protection issue that arises from the purge.

Gov. Scott insists that there is nothing wrong with his "round up the usual suspects" approach because U.S. citizens are afforded "due process." They are given 30 days notice and an opportunity to prove their citizenship, he claims.

As revealed by previous cases which struck down a draconian Photo ID law in WI as unconstitutional, however, coming up with certified copies of documents necessary to prove citizenship (e.g., birth certificates, passports, naturalization papers) can be expensive and time-consuming.

Moreover, as Brad Friedman observed during his interview with Leon County, FL Supervisor of Elections Ion Sancho, a vacationing citizen may not receive notice in time to act. Worse, a notice could be mailed to the FL address of a soldier who is in the midst of combat in Afghanistan.

The disparate number of minorities and Democrats targeted by a purge that has been arbitrarily compiled by partisan state officials from a known faulty database suggests that the effort to shift the burden of proof of citizenship to otherwise eligible voters is tantamount to a denial of Equal Protection as guaranteed by the 14th Amendment of the U.S. Constitution.

Sancho, when interviewed by Friedman last week, was more direct. He directly lambasted the effort by Scott and the other state officials as nothing less than "un-American."

FL election supervisor revolt

During his June 12 interview, Sancho told Friedman that FL county election supervisors need not, and most will not, carry out the purge. He is aware of only three GOP controlled FL counties that are still vowing to continue the removal of voters.

Sancho explained:

They were basically told that they had to, but under questioning of the Supervisor of Elections at our recent conference we received contradictory information. We were told that we didn’t have to remove them if we did not feel that the quality of information was good, and it’s not.

The vast majority of county election supervisors, he said, have refused to purge "American citizens [who are] perfectly legal to vote."

DHS did not deny FL access to database

In his 6/11/12 letter, Perez responded to FL's claim that they were denied access to the DHS Systematic Alien Verification for Entitlements (SAVE) database which, the state alleges, is a more comprehensive and accurate database than the they one currently being used from the state DHSMV.

That database, however, Perez explains, does "not include a comprehensive and definitive listing of U.S. citizens, and does not include, for example, those born in the United States."

While SAVE can verify documentation regarding naturalized citizens and "U.S. citizens born abroad who derived citizenship from U.S. parents," Perez wrote, as early as October 2011 the DHS advised FL that "SAVE...can verify these individuals only if [FL provides the DHS with] unique identifiers, such as alien registration numbers or certificate numbers found on immigration-related documents."

In other words, the SAVE database cannot identify immigration status based on names alone, as FL had been hoping to use to compare suspected non-citizens to the federal database.

The state, Perez wrote, "admitted to DHS nearly eight months ago that the Division of Elections does not collect any of the immigration-related numeric identifiers or documentation that DHS has advised would be necessary to participate in SAVE."

Thus, this appears not to be a case of DHS denying a state access to the database, as FL has claimed, and as its rightwing proponents have echoed in the media, but rather a case in which a state has failed to provide the information necessary for it to participate in the federal program.

"In fact," Perez notes, "we understand that the SAVE program has had long and successful working relationships with a number of Florida agencies that need to verify immigration status for their programs and that are able to comply with SAVE requirements."

Moreover, the letter explains, the SAVE program is used by another state (it does not identify which one) "for purposes of verifying citizenship of new voter registrants through use of appropriate identifying information that DHS requires of governments participating in that program."

"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 admonished, reminding Detzner that the state admitted to having been informed eight months ago of the necessary requirements for participation in the program, but have "failed" ever since to "provide the necessary information DHS."

"As a result, the significant problems you are encountering in administering this new program are of your own creation," the Asst. Attorney General scolded.

The state of Florida has yet to respond publicly to the DOJ lawsuit, other than to indicate they intend to continue their purge of "non-citizens", and any inaccuracies in that effort can be laid at the feet of DHS for not giving them access to the federal database they claim is required to be shared with them by law.

With additional reporting by Brad Friedman.

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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.