Whose votes count, whose don't? The legal landscape before Election Day
Here's how judges have ruled in four major election-law flash points: voter ID laws, early voting, provisional ballots, and the purging of voter registration rolls.
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In mid-2011, the Florida secretary of state asked for help to verify that only US citizens were on Florida’s voter rolls. State databases suggested that some noncitizens had registered to vote. To double-check the suspicion, officials contacted the Obama administration’s Department of Homeland Security.Skip to next paragraph
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DHS maintains a database of legal immigrants and naturalized citizens. Congress instructed federal officials to make immigration information available to the states upon request. But instead of cooperating, the Obama administration declined for more than a year to respond to the state’s call for help.
When Florida tried to move forward with partial information from an imperfect state database, the president’s political allies criticized Republican leaders in Florida for attempting to suppress the Latino vote by improperly removing suspected noncitizens from the voter rolls.
State officials continued to request access to DHS’s immigration database that would allow them to double-check their records and easily identify noncitizens who had registered to vote. But the Obama administration offered no help.
Instead, in May 2012, the Justice Department’s Civil Rights Division filed suit against Florida, arguing that under a federal voter protection law, the state could not remove anyone from the list of registered voters within 90 days of a federal election.
The argument was made three months before the Florida primary, but it also came more than a year after Florida had asked the Obama administration for help with the database.
A Justice Department brief filed in the lawsuit makes no mention of Florida’s still-pending request to DHS. Instead, it accused Florida officials of dragging their feet. “[Florida] could have undertaken this database matching program well before the 90-day quiet period, if it chose,” the brief said.
In essence, the Justice Department was arguing that even if Florida verified noncitizens on its voter rolls, it must allow those noncitizens to cast their ballots because no changes are permitted under federal law within the 90-day limit.
A federal judge rejected the government’s argument and agreed with Florida.
“[The law] does not require a state to allow a noncitizen to vote just because the state did not catch the error more than 90 days in advance,” US District Judge Robert Hinkle said in an order denying the government’s requested injunction.
Judge Hinkle added that noncitizens have no right to register to vote in the first place and could be removed whenever they are discovered on the rolls.
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A few weeks later, Florida sued DHS for access to the federal immigration database. After Hinkle’s denial of the injunction, DHS officials agreed to allow Florida – and other states – access to its database.
Florida eventually identified 207 suspected noncitizens on its voter rolls, more than 30 of whom are believed to have cast votes in earlier elections.
Colorado’s secretary of state adopted a similar program to remove any foreign citizens from the state’s voter rolls. As in Florida, he had requested access to the DHS database and was denied access. After Florida reached its agreement with DHS, Colorado was also granted access to the federal database.
Colorado identified 441 suspected noncitizens on its list of registered voters.