Florida vs. the Obama Administration

by Hans A. von Spakovsky

Looks like the dispute between Florida and the U.S. Justice Department over the state’s attempt to remove illegally registered non-citizens from its voter-registration rolls will definitely end up in court. Two developments yesterday:

First, Thomas Perez, the assistant attorney general for civil rights, sent a letter to Florida secretary of state Ken Detzner reiterating DOJ’s specious claims that Florida’s actions violate the Voting Rights Act and the National Voter Registration Act. That Perez wants to protect ineligible non-citizens who have committed a federal felony from being removed from the voter rolls is certainly no surprise.

As reported earlier, Perez is the former president of Casa de Maryland, an advocacy organization that opposes the enforcement of U.S. immigration laws. This group has: encouraged illegal aliens not to speak with police officers or immigration agents; fought restrictions on illegal aliens’ receiving driver’s licenses; urged the Montgomery County Police Department not to enforce federal fugitive warrants; advocated giving illegal aliens in-state tuition and a general amnesty; and actively promulgated “day labor” sites openly skirting federal prohibitions on hiring undocumented individuals.

#more#Perez denies in the letter that DOJ and the Department of Homeland Security have “worked in concert” to deny Florida access to federal immigration records, blaming it instead on Florida’s inability to provide DHS with “necessary information.” He ends with a threat, telling the state that he has authorized “the initiation of an enforcement action against Florida in federal court.”

While DOJ was dispatching its letter to Florida, the state was filing its own lawsuit — in federal court in the District of Columbia — against the Department of Homeland Security, Janet Napolitano, and Alejandro Mayorkas, the director of the Bureau of Citizenship and Immigration Services. That lawsuit goes after DHS for its “unwarranted delay and recalcitrance” in fulfilling its statutory duty under 8 U.S.C. §1373(c) to respond to requests to ascertain or verify the citizenship or immigration status of any individual. The lawsuit points out that DHS even issued a notice in the Federal Register about the availability of information from its SAVE program (Systematic Alien Verification for Entitlement Program System of Records) for states to use in making decisions related to any legal purpose such as “voter registration.”

According to the lawsuit, the SAVE program can “verify (1) nonimmigrant status; (2) immigrant status; (3) U.S. citizenship for naturalized citizens; and (4) U.S. citizenship for derived citizens.” In more than 90 percent of cases, it can determine immigration status of an individual “within 3 to 5 seconds.” The facts presented in Florida’s filing make Perez’s claim that Florida is to blame for its inability to use the SAVE system seem highly dubious.

Florida lists a long series of emails and telephone contacts with DHS initiated by Florida trying to get access to the SAVE system. Many times Florida got no response at all. At other times, the state was told that “many issues” had to be resolved for SAVE to be used in the voter registration context. But then DHS never actually seemed to do anything to resolve whatever the issues were — or to even identify them to Florida. One gets the impression that DHS was using bureaucratic red tape and nonresponsiveness to stop a verification program from going forward.

Florida is seeking an injunction from the court ordering DHS to comply with federal law and provide the state access to the SAVE system, as well as attorneys’ fees and cost. The counsel of record for Florida is William Consovoy of Wiley Rein, a Supreme Court law clerk who has worked on a number of high-profile cases, including one currently in the Supreme Court challenging the expanded use of racial preferences in college admissions in Texas. In short, Florida has brought in some big guns to try to beat the administration.

Even though a number of county election officials are now refusing to investigate suspect registrations, Florida has already found almost 100 confirmed non-citizens registered to vote, half of whom voted in at least one prior election. The state has thousands more possibly unlawful registrations to investigate.

So stayed tuned. There’s much more to come in this dispute, which will directly affect the ability of states to maintain the accuracy and reliability of their voter-registration rolls by removing the thousands of non-citizens who are registered across the country.

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