Last week Florida federal district court judge Robert Hinkle ruled against the Justice Department’s motion for a temporary injunction against Florida’s voter purge. The ruling was widely portrayed as a victory for the state, by Florida Governor Rick Scott and many in the media.
Yet the ruling itself was less of an endorsement for Florida and more of a rebuke. “There were major flaws in the program,” Hinkle wrote. “The [Florida secretary of state] compiled the list in a manner certain to include a large number of citizens…The program was likely to have a discriminatory impact on new citizens.” Hinkle ruled in favor of the state “primarily because the Secretary has abandoned the program.”
In case you’ve forgotten, Florida’s voter purge was riddled with errors (“98.4% of the 2,625 people identified by the Florida SOS as ‘potential noncitizens’ remain on the rolls because the Supervisors of Elections found insufficient evidence that they were ineligible to be registered voters,” found University of Florida political science professor Daniel Smith), racially biased (minorities comprised 80 percent of the list but only 30 percent of Florida’s population) and blatantly partisan (Democrats outnumbered Republicans by two to one). That’s why Florida’s supervisors of elections overwhelmingly refused to implement the purge—which remains their position following Judge Hinkle’s ruling.
“The supervisors are where we were before—we’ve stopped the purge,” Vicki Davis, president of the Florida State Association of Supervisors of Elections, told me. “The list was much too flawed for the elections supervisors to move forward with in the same format and without backup documentation.”
“We’re not going to see any further activity in most of the counties in the state’s direction,” adds Ion Sancho, supervisor of elections in Tallahassee’s Leon County. “It’s just too close to the election at this point.”
Two heavily Republican counties, Collier and Lee, are the exceptions, comprising 65 percent of the 107 potentially ineligible voters purged in Florida from early April to early June. Collier County, which includes Naples, removed 26 alleged “non-citizens” from the rolls based on the state’s list—eight of whom did not respond to contact attempts from the county to determine whether they were or were not citizens. “The worst-case scenario is that we’ve wrongfully removed somebody from the rolls,” says Tim Durham, the county’s deputy elections supervisor. If that’s the case, legitimate voters wrongly branded as “non-citizens” would have to cast a provisional ballot, which may or may not be counted (Durham says two-thirds of provisional ballots are counted in Collier County).
Lee County, home to Fort Myers and fittingly named after the Confederate general, is the other rogue county—and the only one in the state still purging voters. Lee removed forty-four suspected “non-citizens” from its rolls from April to June, according to Daniel Smith, but only two were from the state’s list. The other forty-two were evidently based on the county’s records of people who identified as non-citizens in order to avoid jury duty, a highly unreliable way to determine citizenship. (Lee County election officials were out of the office and did not respond to interview requests).
So what happens now? Collier is one of five counties in Florida subject to Section 5 of the Voting Rights Act (VRA), meaning it must seek approval from the federal government to make sure any voting change does not discriminate against minority voters (which the county failed to do). The Justice Department, whose lawsuit against Florida under the National Voter Registration Act is moving forward in Hinkle’s court, could also challenge the voter purge under Section 5. The ACLU and Lawyers Committee for Civil Rights are already suing Florida under that provision, alleging that the counties needed preclearance for the voter purge, while the Advancement Project and other voting rights groups filed another lawsuit under Section 2 of the VRA, noting the purge’s discriminatory impact.
Florida has said the voter purge will not resume unless the state gains access to the Department of Homeland Security’s SAVE database—which tracks government benefits for non-citizens and is not intended as a tool for purging ineligible voters. “The State's insistent claim that access to the federal Systematic Alien Verification for Entitlements (SAVE) program will resolve any deficiencies in the current match process seriously overstates the usefulness and accuracy of SAVE for the purposes of verifying names in a voter list maintenance program,” writes the Brennan Center for Justice. Moreover, Florida lacks the identifiers necessary to properly use the database.
Yet although the purge remains suspended, Florida has yet to admit to any wrongdoing or to address the widespread confusion surrounding the program, which may scare some minority voters away from the polls in November for fear of retaliation. “The state needs to publicly acknowledge, to both election officials and voters, that there were errors, that they’re checking to make sure no one has been wrongfully removed and that the list won’t be used anymore,” says Diana Kasdan, counsel at the Brennan Center’s democracy program.
Judge Hinkle ended his opinion with a warning to the state. “If the secretary or the supervisors of elections go forward with the program the secretary says he has abandoned,” he wrote, “the issue can be revisited.”