Politics & Policy

Who May Vote in Florida?

Attorney General Eric Holder
Holder to Florida: Leave noncitizens on the voting rolls.

Time and again, the Holder Justice Department has exhibited politically driven law enforcement. But its latest instance of lawlessness is absolutely brazen. Last week, the Civil Rights Division’s Voting Section sent a letter to the Florida secretary of state, Ken Detzner, ordering him to stop removing voters who are not citizens from Florida’s voter-registration rolls.

This goes far beyond Holder’s previous actions, such as belittling claims of voter fraud and trying to stop voter ID and other reform measures intended to improve the integrity of the election process. This letter would directly abet vote thieves in a key state as Holder’s boss seeks reelection this November.

According to the letter sent by Voting Section chief Chris Herren, Florida is checking its voter-registration records against state driver’s-license records to identify noncitizens. This shouldn’t have surprised anyone at Justice — after all, Florida is simply following federal law in making such a database comparison. Section 303(a) of the Help America Vote Act of 2002 specifically directs states to coordinate their voter-registration records “with other agency databases within the State” to ensure they are “accurate.” And this is serious business: Making a false claim of citizenship in order to register to vote is a felony under federal law punishable by up to three years in prison.

#ad#But none of this seems to matter to Herren, who asserted, falsely, that Florida is violating Section 5 of the Voting Rights Act because it didn’t get its review procedure “preapproved” by the Justice Department or a federal court. He is referring to the fact that five counties in Florida (not the entire state) are covered by Section 5, which requires that covered jurisdictions get such approval before they make any changes in their voting procedures or rules. The jurisdiction must show that the change is not intended to discriminate on the basis of race, and that it does not have that effect.

DOJ’s claim is wrong for many reasons. First, Florida has always removed the names of registered voters who it has discovered are not U.S. citizens and were therefore registered illegally. The fact that the state is using DMV records in addition to other sources to find citizenship information does not constitute a “change” in voting procedures that must be precleared under the applicable precedent of the Supreme Court case Presley v. Etowah County.

What would have been a change requiring Section 5 approval is if Florida had suddenly announced that, contrary to federal law, it was no longer going to remove noncitizens from its voting rolls.

Second, even if Section 5 applied, it would apply only to the five counties, not the entire state, so DOJ has no authority to stop this procedure statewide.

And last but certainly not least, Section 98.075 of the Florida Election Code, which allows the secretary of state to remove any registrant who is “not a United States citizen,” as well as House bill No. 1355, which in 2011 amended the code section to allow the secretary of state to use “other” sources such as DMV records, were, according to a former Florida election official I talked to, specifically precleared by the Justice Department! There is therefore no basis whatsoever for DOJ’s claim that Florida is violating Section 5 of the Voting Rights Act.

Herren also makes the spurious claim that removing noncitizens violates the National Voter Registration Act (NVRA), popularly known as Motor Voter, because the removal is occurring within 90 days of the August 14 Florida primary. Section 8 of Motor Voter provides that a state has to complete “any program the purpose of which is to systematically remove the names of ineligible voters” not later than 90 days prior to the election.

Section 8 is a complicated provision. It specifically allows the removal at any time of registered voters who have become ineligible through criminal conviction, mental incapacity, or death — the 90-day rule does not apply to such removals (which is why the letter does not mention the 53,000 dead voters Florida is removing). The 90-day rule does apply to removals based on “a change in the residence of the registrant.” In other words, if a state implements a general program that removes individuals who have become ineligible because they have moved out of state, it has to complete that program by the 90th day before the next federal election.

#page#But the 90-day rule does not apply to registrants being removed because they are not U.S. citizens. Noncitizens are not mentioned in Section 8 at all for the simple reason that Section 8 deals with the removal of formerly eligible voters who have become ineligible for various reasons. And Florida was put in this position because the Obama administration — contrary to federal law — has refused Florida’s request to check Department of Homeland Security records on noncitizens.

Individuals who are not U.S. citizens were never eligible to be on the voter-registration list to begin with. That is why the NVRA has a provision stating that the federal mail-in voter-registration form must include a statement specifying the “eligibility requirement” of citizenship. The Help America Vote Act added a specific question asking whether the registrant is a U.S. citizen.

#ad#Noncitizens commit a federal felony when they illegally register to vote. As the Federal Prosecution of Election Offenses manual for federal prosecutors, published by the Criminal Division of the Justice Department, explains on pages 67–69, submitting false citizenship information in order to register to vote violates Section 12 of the NVRA, as well as two other federal statutes (18 U.S.C. §§ 1051(f) and 911).

The idea that Florida is violating one section of the NVRA when it removes noncitizens, who committed a felony when they violated another section of the NVRA by illegally registering, is ridiculous. The unlawful registration was void ab initio — invalid from the very beginning.

Fictitious voters who are fraudulently registered are also not mentioned in the NVRA. Yet under the Justice Department reading of the statute, Florida could not remove Mickey Mouse if it found the Walt Disney character illegally registered at the Magic Kingdom. Neither the plain text of the NVRA nor congressional intent in passing the law requires such an absurd result. That the Justice Department would make such a strained claim is a sign of just how desperate Eric Holder and his cohorts in the Civil Rights Division are to stop Florida’s much-needed cleanup of its voter-registration list before the November election.

If there were any doubt remaining, the left-wing ideology driving the decision about Florida is revealed in the last sentence of the Herren letter, which tells the Florida secretary of state to contact the Voting Section lawyer assigned to the case, Elise Shore.

Shore is one of the many political hires given career positions by the political appointees at the Civil Rights Division, as revealed in a Pulitzer-nominated series chronicling the ideologues hired since Obama took office. She is a former counsel for the Southern Coalition for Social Justice and the Mexican American Legal Defense and Educational Fund, organizations known for their opposition to our immigration laws. She was an outspoken critic of Georgia’s proof-of-citizenship requirement for voter registration, claiming it was discriminatory even though a federal court had precleared the Georgia law under Section 5. Shore appears to be continuing her liberal advocacy, but this time doing so with the authority granted a government attorney.

Fortunately, Florida appears to be undeterred by the groundless directive from Herren. A spokesman for the secretary of state announced that Florida will continue to remove noncitizens from its registration records.

That is exactly what it should do. Individuals who have violated federal law and committed a felony should not stay on the voter rolls. They should be removed and then referred to the Justice Department for prosecution — although that would appear to be a complete waste of time with this administration.

— Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation and a former counsel to the assistant attorney general for civil rights at the Justice Department, where he coordinated enforcement of Section 5 and the NVRA.

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