A voter purge by Secretary of State Ken Detzner in 2012 violated the law, a federal appeals court ruled Tuesday in the most recent episode of a heated legal battle over the program and its possible successor.
The 11th U.S. Circuit Court of Appeals rejected arguments from Detzner that the effort to remove suspected non-citizens from the voting rolls did not violate a federal law barring wide-ranging efforts to cleanse those rolls within 90 days of an election. In the 2-1 ruling, justices also said they took a case that would otherwise be moot because of the possibility that the state will attempt another purge in the future.
“The fact that the provision now before us applies to ‘any program’ strongly suggests that Congress intended the 90 Day Provision to encompass programs of any kind, including a program like Secretary Detzner’s to remove non-citizens,” Circuit Judge Beverly Martin wrote for the court. Martin was named to the bench by President Clinton in 1995. She was joined in the majority by Judge Adalberto Jordan, a Barack Obama appointee and a Cuban native who migrated to Miami when he was young.
The ruling was a limited victory for a coalition of immigrant advocacy groups and voters who said they faced the possibility of being wrongly removed from the rolls. While the state would be justified in attempting to prevent non-citizens from voting, a sweeping effort like Detzner’s — pushed by Gov. Rick Scott — couldn’t be done so close to an election under the National Voter Registration Act, the judges said.
Detzner’s efforts to scrub the rolls in 2012 were subject to a series of legal and political challenges, beginning when he decided to use driver’s license data to ferret out non-citizens. He later reached an agreement with the Department of Homeland Security giving the state access to the Systematic Alien Verification for Entitlements, or SAVE, database.
That effort never really got off the ground when it ran into resistance by local elections supervisors, who complained that the list Detzner sent them before getting access to SAVE was riddled with errors.
But Detzner has since worked to ramp up “Project Integrity,” a process in which voter registration records were to be matched with the federal database to ensure prospective voters were eligible to cast ballots.
That effort has also faltered. Detzner announced last week that he would back away from the plan. In a memo to supervisors, he blamed changes to SAVE for his decision.
“These changes will enhance and improve the credibility and reliability of the potential ineligible matches, but DHS anticipates Phase Two will not be complete until 2015,” Detzner wrote. “For these reasons, with your input, I have decided to postpone implementing Project Integrity until the Federal SAVE Program Phase Two is completed.”
In her opinion, Martin pointed to the possibility of a future purge as a reason to rule on the lawsuit, even though it might otherwise be moot because Detzner abandoned the earlier purges.
“The Secretary has also not offered to refrain from similar programs within the 90-day window in the future. Thus, there is a reasonable expectation that the plaintiffs will be subject to the same action again,” Martin wrote.
The only dissenting member of the panel, Judge Richard F. Suhrheinrich, gave no explanation of his disagreement other than saying he agreed with the lower court ruling against those bringing the lawsuit. Suhrheinrich is a senior judge for the 6th Circuit Court of Appeals temporarily serving on the 11th. He was appointed to the bench by the first President Bush in 1990.
A spokeswoman for Detzner said the department is reviewing the decision.