The Justice Department’s top voting rights lawyer, T. Christian Herren, said last week that Florida’s voter-purge effort violated NVRA because it fell within 90 days of a federal election.
Detzner argues Herren misread the law, which only applies to purges of once-eligible citizens who become ineligible through criminal conviction, death or mental incompetence. The 90-day purge-ban, which has barely been litigated, largely applies to efforts to remove voters who have moved — not voters who were ineligible in the first place, Detzner said.
“DOJ’s reading of the NVRA would grant greater protection against removal from the voter rolls to non-citizens — who were never eligible to vote — than to other categories of registered voters,” Detzner wrote. “Such a result is plainly contrary to the NVRA’s express purpose of “ensur[ing] that accurate and current voter registration rolls are maintained.”
If the state followed the federal demand, Detzner wrote, then it would help unlawful voters cast ballots. And that could cancel out the ballots cast by lawful voters and would therefore violate the U.S. Constitution, Detzner said.
“If the effect of the NVRA is to force a state to allow never-eligible non-citizens the opportunity to vote,” he wrote, “then the statute might violate the Equal Protection Clause of the Constitution, which guarantees that the right to vote cannot be denied by a dilution of the weight of a citizen’s vote.”
And if that happens, Detzner said, citizen groups would sue.
“Presumably eligible voters in Florida have the right to bring a lawsuit in federal court to test whether their votes are being unconstitutionally denied by the federal government,” he wrote.
As for the Voting Rights Act claim, Detzner wrote, Florida already received federal permission to remove noncitizens, which is clearly spelled out in Florida law.
What’s more, the Voting Rights Act applies to only five Florida counties — Monroe, Hillsborough, Collier, Hardee and Hendry — and not the other 62 in Florida, including Miami-Dade, where about 1,600 of the 2,700 potential noncitizens were initially identified by the state in a database created by the Department of Highway Safety and Motor Vehicles.
It’s unclear if the Voting Rights Act requires the state to receive federal permission for the way in which he sought to identify noncitizens, by checking voter rolls with a motor-vehicle database that doesn’t have up-to-date citizenship information.
Detzner’s reasoning closely tracks an analysis by a former DOJ official, Hans von Spakovsky of the conservative Heritage Foundation, who arrived at the same conclusions.
Seminole County Supervisor of Elections Mike Ertel, who has been critical of the state’s handling of the database, said the federal government needs to explain why the Homeland Security database can’t be used to verify the status of voters.
"That’s a real question that needs to be answered," Ertel said.
DHS won’t comment.
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Florida Gov. Scott says voter purge is legal, DOJ is wrong | McClatchy