Below are excerpts from Secretary of State Ken Detzner’s June 6 letter to T. Christian Herren of the Department of Justice’s Civil Rights Division:
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 opposes these efforts, and reads federal law to prohibit Florida from verifying the eligibility of registered voters and removing noncitizens from its voter rolls. The Department of State respectfully disagrees with DOJ’s position. The actions taken by Florida to identify and remove noncitizens 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. Because DHS has repeatedly blocked Florida’s access, we have been unable to send additional information to supervisors of elections since April 30, 2012. …
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. …
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.
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 noncitizens – 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.” …
In sum, the practice DOJ now appears to be endorsing is as follows: the federal Department of Homeland Security may, for months, violate federal law and deny Florida and other states access to the SAVE database so that the federal Department of Justice may then assert that the resulting delays in a state’s election-integrity efforts violate the time periods established in another federal law. This hardly seems like an approach earnestly designed to protect the integrity of elections and to ensure that eligible voters have their votes counted.
Six House Democrats from Florida – U.S. Reps. Ted Deutch, Alcee L. Hastings, Corrine Brown, Fredericka Wilson, Debbie Wasserman Schultz, and Kathy Castor – addressed a letter to Florida Gov. Rick Scott on May 29 asking “for the immediate suspension of the Florida Division of Elections’ directive that county supervisors of elections purge up to 180,000 names from Florida’s voter rolls in advance of the November 2012 elections.”
It continued, in part:
“While we all agree that the right to vote should be reserved only to those who are eligible, any process that could strip Floridians of their voting rights should be conducted with the utmost caution and transparency, and certainly not within six months of a major federal election and within 90 days of the primary. Providing a list of names with questionable validity – created with absolutely no oversight – to county supervisors and asking that they purge their rolls will create chaotic results and further undermine Floridians’ confidence in the integrity of our elections. A rushed process will undermine both Florida and federal law requiring voter rolls to be maintained in a uniform and nondiscriminatory manner. …
“We agree that removing deceased, ineligible and fraudulently registered individuals from the voter rolls is important as part of responsible stewardship of our elections system. We support any open process to remove these names from voter rolls, but we strongly object to the process currently underway. It is already evident that many eligible voters have been included among the names of individuals to be removed, and it appears the state is on track to repeat the mistakes of 2000 and 2004 rather than learning from them.
“It is important to remember, Governor Scott, that Florida has never encountered problems with mass voter fraud. Unfortunately, however, our state does have a troubled history of wrongfully purging from our rolls the names of legitimate voters mistakenly deemed ineligible to vote. In both 2000 and 2004, the state pursued misguided efforts to purge the voter rolls that were shown to wrongfully include legal voters in these lists. Only when the lists and the process were made transparent could all Florida voters trust that no one would be wrongfully denied their right to vote.
“It is the responsibility of the supervisors of elections to maintain accurate voter registration records, and doing so is an important part of protecting the integrity of our elections. In the same vein, individual cases of suspected voter fraud should be vigorously pursued whenever they are uncovered. But we must remember that the voting rights afforded to all Americans by our Constitution should at all times be protected. Unfortunately, state officials have spent more time restricting the ability of Floridians to vote rather than registering disenfranchised voters, protecting access to the polls, and encouraging participation in the democratic process.
Our concerns are shared by millions of Floridians. Rather than allow this unscrupulous purge to cast a shadow of doubt over the upcoming elections, we hope you take seriously our concerns and immediately suspend the purge of voter registration lists spearheaded by the Florida Division of Elections in order to ensure that not one Floridian finds his or her legitimate voting rights callously stripped away.
As a Florida supervisor of elections with 16 years experience, I have confidence in the Florida voter registration rolls. Maintaining the rolls is a daily process. Notifications of voters moving, party changes, deceased, felons, mentally incompetent and non-citizens are daily activities.
Is the process perfect? Absolutely not! In the case of citizenship, voter registration applicants affirm that they are a U.S. citizen by checking a box and signing that all information is true. Voter registration validation means that databases are researched to create a list of possible matches. Many times there are not enough data points to match. When the only data available are a name and date of birth and when the database match is against over 11 million voters, the process can prove to be inaccurate. Many Florida supervisors of elections have decided to cease any further actions on potential non-citizens until the issues raised by the U.S. Department of Justice are resolved between the State of Florida and DOJ or by a court.
On January 1, 2006, the Florida Voter Registration System (FVRS) became operational. Voter registration applicants must provide either a Florida Driver’s License number or a Florida Identification Card number, if issued, or the last four digits of their Social Security number. This information allows more matching data points, providing more accurate matching criteria. Applicants are matched against databases, including those of the Florida Department of Law Enforcement and the Department of Corrections identifying probable felons. This process has greatly improved after a very rocky start prior to the 2000 election. Today the probable felon information received from the state is almost always correct. Our confidence level for the process has greatly improved.
Since FVRS became operational, supervisors have requested the state provide more accurate information on deaths. The Department of Health identifies voters who died in the State of Florida. In February of this year, the state was able to provide a list of deceased voters whose names were matched against the Social Security Administration database identifying voters who had died out of the state but were on the voter registration rolls. I feel confident in removing the names of deceased voters.
The voter rolls are not perfect. However, we are continually improving. Voters are required to show a photo and signature ID at the polls and early voting sites. Signatures on mail-in ballots are checked against the signature on file. Provisional ballots are available for voters whose registration is in question. Florida voters can be confident that the supervisors of elections are working to ensure the integrity of the voter rolls for the 2012 presidential election.
As a backdrop to the controversy over the state Division of Elections’ list of registered voters deemed to be possible noncitizens, Florida Secretary of State Ken Detzner asked the Department of Homeland Security for access to its database on individuals’ legal status. The U.S. Department of Justice also suggested that Florida’s actions may be in violation of the Voting Rights Act. That, in turn, triggered a response from Detzner. Finally, the lawyer for the Florida State Association of Supervisors of Elections, Ron Labasky, recommended that county supervisors of elections “cease any further action until the issues raised by the Department of Justice are resolved between the parties or by a court.”
FLORIDA LETTER TO HOMELAND SECURITY
In a May 31 letter to Secretary Janet Napolitano of the Department of Homeland Security, Florida Secretary of State Ken Detzner sought access to Homeland Security’s SAVE database – the Systematic Alien Verification for Entitlements Program. Noting that his department’s “ability to validate a person’s legal status as up-to-date was limited,” Detzner said SAVE “has the information we need, and by federal law, we are entitled to request and receive legal status information from the federal government.”
“Federal law,” he wrote, “expressly requires your agency to respond to state inquiries seeking to verify or ascertain the citizenship or immigration status of any individual within its jurisdiction for any purpose authorized by law. … Yet after nine months of requests, we have not been granted access to that information or any other available DHS database.”
In his letter to Secretary Napolitano, Detzner added: “I have a duty to ensure Florida’s voter registration rolls are current and accurate. I hope you will understand the importance of making sure the vote of an eligible voter is not diminished by the vote of an ineligible voter and provide my department the access it needs to the SAVE database.”
DEPARTMENT OF JUSTICE LETTER TO FLORIDA
Also on May 31, the Department of Justice’s Civil Rights Division addressed a letter to Florida Secretary of State Ken Detzner suggesting that Florida’s efforts to identify “potentially ineligible voters based on citizenship” could be counter to the Voting Rights Act.
The letter from T. Christian Herren Jr., chief of DOJ’s Voting Section, said, “Our records do not reflect that these changes affecting voting have been submitted to the United States District Court for the District of Columbia for judicial review or to the attorney general for administrative review as required by Section 5 of the Voting Rights Act.” Accordingly, Herren said changes affecting voting must be either brought before that court or the attorney general “for a determination that they neither have the purpose nor will have the effect of discriminating on account of race, color, or membership in a language minority group under Section 5.”
Herren also said the State of Florida is subject to the requirements of the National Voter Registration Act of 1993, which requires a state to complete any program “to systematically remove the names of ineligible voters from the official lists of eligible voters” within 90 days of a primary or general election for federal office. The Department of Justice calculated that date as May 16, 2012.
FLORIDA’S RESPONSE TO DEPARTMENT OF JUSTICE
In response to the U.S. Department of Justice’s letter, Florida Secretary of State Ken Detzner issued this statement on June 1:
“As Florida’s chief election officer, I am committed to ensuring the accuracy of Florida’s voter rolls and the integrity of our elections. It is my duty to protect the right of all eligible voters who are able to participate in the process. This is the security that voters and candidates expect from us in every election. The department will continue to act in a responsible and cautious manner when presented with credible information about potentially ineligible voters. No one that has the right to vote has been denied the opportunity to cast a vote, and as the secretary, it is my duty to ensure that remains the case.
“As to the specific concerns presented by the Department of Justice, we will be responding next week.”
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