A victory in the civil rights battle for voting was registered in Florida last week over those with an agenda to purge voters from rolls. The 11th Circuit U.S. Court of Appeals ruled on April 2 that when Congress declared in the National Voter Registration Act that voters’ names could not be systematically removed from rolls within 90 days of a federal election, that that’s exactly what they meant. Therefore, the voter purging program that Florida Gov. Rick Scott and Secretary of State Ken Detzner have insisted on carrying out for years is no longer valid, or at least, not so close to an election. Despite this quiet victory, there’s a good chance that purging will resume.
Since 2012, Gov. Scott and Sec. Detzner have been trying to enforce a scheme they cooked up for supposedly identifying “non-citizens” on voter rolls and then deleting them in broad swoops. If you can imagine, it’s like a police task force sweeping an entire neighborhood street corner in search of gang members, arresting everybody on the block in the process—maybe they collect one or two of their intended targets, but a bunch more innocent bystanders get caught up in the process.
This is exactly what happened when Sec. Detzner rolled the purge program out in 2012. He made county election supervisors send letters to over 2,700 Floridians accusing them of not being citizens and therefore ineligible to vote, and demanded they prove their citizenship or else lose their vote. Over 80 percent of those who received the letters were Latino or black citizens, the grand bulk of whom were eligible to vote.
If that wasn’t bad enough, Gov. Scott and Sec. Detzner imposed this purge program within 90 days of a federal primary for the 2012 presidential election. This alone was a clear violation of the National Voter Registration Act, which forbids such blanketing voter removal within that timeframe. But, a U.S. District Court gave the governor and state secretary a pass, by allowing the purges to commence. The 90-day rule doesn’t apply when looking for “non-citizens,” the court ruled.
Detzner argued in that hearing that the rule is only for programs that identify people who were once eligible to vote, but have lost eligibility, not people who were never eligible to vote, like “non-citizens,” which the District Court agreed with. But the 11th Circuit said that Congress was clear that the 90-day rule applies for “any program”—meaning all programs—in which the outcome is a massive upheaval of people’s names from voter rolls.
Judge Beverly B. Martin wrote in her ruling opinion:
“For programs that systematically remove voters, however, Congress decided to be more cautious. At most times during the election cycle, the benefits of systematic programs outweigh the costs because eligible voters who are incorrectly removed have enough time to rectify any errors. In the final days before an election, however, the calculus changes. Eligible voters removed days or weeks before Election Day will likely not be able to correct the State’s errors in time to vote. This is why the 90 Day Provision strikes a careful balance: It permits systematic removal programs at any time except for the 90 days before an election because that is when the risk of disfranchising eligible voters is the greatest.”
In other words, it’s beneficial to election officials to have this three-month window for disengaging from voter removal, because if voters need to challenge or correct the reasons for why they were wrongfully purged, that might be impossible if done just days before an election. In that situation, those who were wrongfully purged would lose their vote and their opportunity to participate in an election.
Said Courtney Mills, attorney for the Fair Elections Legal Network, “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.”
Gov. Scott started his controversial purge program back up last summer, which while not within proximity to a federal election, was still problematic in terms of how the state is implementing the voter removals. It petitioned the Federal government in 2012 to access its Systematic Alien Verification for Entitlements (SAVE) database, which tracks government aid to immigrant workers, to ferret out non-citizens who might be registered to vote. Since then, at least a dozen other states have sought access to this database as well for the same reasons. In the Obama Commission on Election Administration report, the use of this and other databases, like the Voter Registration Crosscheck Program, is actually endorsed as a general way to do voter list maintenance.
But this can be problematic for people of color, especially when the intentions are to target “non-citizens,” which in Florida’s case has meant Latino Americans. Of the 2,700 names on the 2012 purge list, 60 percent were Latino Americans, the majority of whom were eligible to vote. These databases do not keep information current enough for accuracy and reliability. This is why many other states have pulled out of using them.
"I don't know why some states have been pulling out of their SAVE requests, but I think it's because many of them have realized that there's not a big problem with non-citizen voting," Katherine Culliton-Gonzalez, director of voter protection for Advancement Project, told me in a conversation about purging last year. “And, also that this is not the way to solve even potential problems with that because [SAVE] is not a definitive database for that."
Still, states have been granted approval by the federal government to use them. Pennsylvania is one of the most recent states to do so. Attorneys with the state ACLU chapter said that they will be closely monitoring Pennsylvania’s use of it to make sure it’s not being weaponized as a way to unlawfully purge voters.
Judge Martin made clear in her ruling that Florida could still seek ways to ensure that ineligible voters don’t end up on the voter rolls, but only “on the basis of individualized information.” Meaning, they can’t sweep a whole block, they can only pursue certain people based off valid tips. What we hope this does not mean, is a regime of Latino Americans being “stopped and frisked” for their voting papers.