Florida Improperly Struck Voters from Rolls

(CN) - Florida's plan to strike noncitizens from voter rolls fewer than 90 days ahead of the 2012 primary and general elections violated federal election law, the 11th Circuit ruled.

The National Voter Registration Act requires states to remove the names of ineligible votes from the official lists of voters no later than 90 days prior to a primary or general election for federal office.

Prior to the 2012 primary election, however, Florida Secretary of State Kenneth Detzner implemented a program to remove suspected noncitizens from voter rolls during May and June, using records from the Department of Highway Safety and Motor Vehicles (DHSMV).

This effort was "far from perfect" and removed numerous eligible citizens from the voter rolls, Judge Beverly Martin said, writing for an appellate panel in Atlanta.

Despite these mistakes, Detzner renewed efforts to remove noncitizens from the voter ahead of the general election, this time using the Department of Homeland Security's Systematic Alien Verification for Entitlements database.

Karla Ancia led a group of voters wrongly identified as noncitizens and removed from the voter rolls in a lawsuit against Detzner.

A federal judge sided with the state, however, after finding that the 90-day provision did not apply to removing noncitizens from the rolls.

In reversing Monday, the three-judge appellate panel said the Voter Registration Act applies broadly to any program that "systematically" removes the names of ineligible voters.

"The 90 Day Provision strikes a careful balance," Martin wrote. "It permits systematic removal programs at any time except for the 90 days before an election because that is when the risk of disfranchising eligible voters is the greatest."

Detzner failed to show that the law does not prohibit removing noncitizens from voter rolls because they were never truly registered in the first place.

"The fact that Congress did not expressly include removals based on citizenship in its exhaustive list of exceptions to the 90 Day Provision is good evidence that such removals are prohibited," Martin wrote.

The court emphasized, however, that the "90 Day Provision would not bar a state from investigating potential non-citizens and removing them on the basis of individualized information, even within the 90-day window. All that the 90 Day Provision prohibits is a program whose purpose is to 'systematically remove the names of ineligible voters' from the voter rolls within the last 90 days before a federal election."

In a concurrence, Judge Adalberto Jordan noted that the case touched upon a problem in reading the 90-Day Provision together with the General Removal Provision, which governs the removal of voters at any time.

Read together, "it would appear to follow that states cannot remove non-citizens from the voter rolls at any time," Jordan wrote.

While this case requires only an interpretation of the 90-Day Provision, Jordan envisioned a future case that would require the application of the General Removal Provision.

"Before any such case arises, Congress has the ability to change the language of the General Removal Provision (as well as the ability to modify the exceptions to the 90-Day Provision if it so desires)," the concurrence states (parentheses in original). "Should it not do so, the court addressing such a future case may have to confront the argument that Congress drafted a portion of the NVRA in an unconstitutional manner."

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit