The Legal Fight for Every Florida Vote

Roseann Voils, far right, demonstrate how to use the voting machine to an unidentified resident of a Delray Beach, Fla. community Wednesday, Oct. 13, 2004. Voils is a county election worker, who gives several demonstrations a week to all types of businesses and community groups. Florida's top elections official says voters must trust ballots cast on touch-screen voting machines if the presidential election comes down to a recount. (National Journal)

Florida, at the direction of Republican Gov. Rick Scott, has produced a list of more than 2,600 registered voters suspected of being ineligible to vote. The move has set off a flurry of litigation (most of which should be settled before November), with the Obama administration and state officials exchanging lawsuits and accusations of playing politics.  The dispute has been particularly contentious because more than 60 percent of those identified are Hispanic, according to the Florida chapter of the American Civil Liberties Union.

Here's a close-up look at Florida's actions and the legal fallout in this state with a controversial past, where elections can hang on a single chad.

In April, Ken Detzner, Florida's Commerce secretary, initiated a coordinated effort to identify registered voters who, from the state's point of view, were probably not U.S. citizens.  That list of "potential noncitizens" was produced by comparing the state Highway Safety and Motor Vehicles Department's database with the Voter Registration System database. Before 2010, driver's license applicants in Florida were not required to prove citizenship but had to inform the DMV of their citizenship status. It appears that the state compiled a list of individuals who both indicated they were not citizens at the time of application and were registered to vote.

What happens to people on that list is largely up to the discretion of county election officials.  Certain counties have declined to use the list for any purpose. Others already have removed voters deemed ineligible. Thus far, 43 formerly registered voters have been declared ineligible according to the Associated Press. Those on the list may have to provide proof of citizenship to local election officials. Failing to respond to the state's request within 30 days may result in removal from the state voter rolls.

Although the list now stands at 2,600 people, cross-referencing the DMV and Florida registered voter databases could yield more than 180,000 potential noncitizens. The state so far has opted to use the smaller list.

One significant criticism of Florida's method is that it uses outdated information "“ particularly, it identifies many individuals who became citizens after they applied for their driver's license.  Florida election officials have, in fact, admitted to identifying more than 500 legitimate registered voters on the list. Many are concerned that good-faith, legally registered voters will be declared ineligible for failing to respond to the state within the 30-day timeline.

So far, the situation has produced a thicket of lawsuits, all filed in the past few weeks. The Justice Department is suing Florida for violating the 1992 National Voter Registration Act.  The Florida ACLU along with the Lawyers Committee for Civil Rights Under Law and a private law firm have sued the state on behalf of two Florida citizens for violating the 1965 Voter Rights Act.  Florida, in turn, has sued the federal government for refusing to provide the state access to its database that tracks the immigration status of certain foreign nationals. The state has argued that it would not have to use the outdated DMV information if the Obama administration had granted access to its federal database. 

With November looming, it is clear that the Obama administration will not back down from trying to stop what it views as a deliberate effort to disenfranchise voters.  Less clear is how Florida will handle the situation before the courts rule on any of the cases. Although no one can be sure, in all likelihood the cases will be fast-tracked and resolved before the November elections. But in the meantime, the ball is in Gov. Scott's court.