Risk of non-citizen voters at center of election year struggle in Florida and Colorado

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People wait before Republican presidential hopeful Newt Gingrich visits a voting precinct at the First Baptist Church of Windermere January 31, 2012 in Orlando, Florida.

By Tom Curry, msnbc.com National Affairs Writer

The Justice Department entered the long-running struggle over voter eligibility Thursday, warning Florida that its program to check the citizenship status of registered voters violates both Section 5 of the Voting Rights Act and the 1993 National Voter Registration Act.
In a battleground state in a presidential election year, the voter eligibility scuffle may have big implications, especially when you consider that George W. Bush won Florida in 2000 by a mere 537 votes in a case ultimately decided by the U.S. Supreme Court.
The state said its initial check found 180,000 potential non-citizens who may be registered voters.
Florida Democratic Rep. Ted Deutch referred to the citizenship verification process as Republican Gov. Rick Scott’s “blatant campaign to suppress the vote immediately in advance of the presidential election.”
The struggle over who should be eligible to vote and who shouldn’t – not only in Florida, but in another battleground state, Colorado, and in other states as well – raises important policy questions:

• Why is there no national registry of American citizens that state and local election officials could check to see if someone is eligible to vote? Solicitor General Donald Verrilli confirmed in the oral argument before the Supreme Court on the Arizona immigration law that “there is no reliable way in the (DHS) database to verify that you are a citizen, unless you are in the passport database.”
• Is the attempt to remove non-citizens from the list of voters simply impossible – due to lack of accurate data on citizen status, or is it possible to do, but will have the side effect of inadvertently striking some citizens from the rolls?
• For those citizens who are mistakenly struck from the list of voters, do states have adequate notice and appeal processes in place to protect their ability to vote?
• Rather than leaving this task to elected state officials, would it be efficient for Congress to create a federal agency to ensure that all eligible voters can cast a ballot and that non-citizens can’t vote?

Since early May, Florida Secretary of State Ken Detzner, an appointee of Scott’s, has been leading an effort to use data from the state Department of Highway Safety and Motor Vehicles to verify that registered voters are U.S. citizens.
Thursday’s letter to Detzner from Christian Herren, chief of the voting section at Justice Department’s Civil Rights Division, said Section 5 of the Voting Rights Act required the state to get pre-clearance from the department or from a federal judge before implementing its citizenship checking program.
Herren also said the NVRA doesn’t allow an effort to remove the names of ineligible people from the list of voters so close to an election – Florida holds its primary on Aug. 14.
Chris Cate, spokesman for the Florida Department of State said his department had not yet had a chance to thoroughly review Herren’s letter.
But he added, “We provided information to the U.S. Department of Homeland Security yesterday, and have been doing so for nearly nine months, in hopes that the federal government would help us identify ineligible voters.”

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Having gotten the letter from Herren, he said, “at least we know the federal government knows we take ineligible voters on the voter rolls seriously. We hope the federal government will recognize the importance of accurate voter rolls and support our efforts.”
In his letter to Homeland Security Secretary Janet Napolitano, Detzner asked her to provide the state access to DHS’s Systematic Alien Verification for Entitlements database to help it verify citizenship of would-be voters. According to an analysis by the Miami Herald, nearly three out of five of those initially identified by the Florida Department of State as potential noncitizens are Latinos. But whether they are citizens or not is still unclear.
Separately, a federal judge Thursday blocked enforcement of new Florida rules on voter registration, saying they imposed “burdensome record-keeping and reporting requirements that serve little if any purpose … .” The League of Women Voters of Florida, Florida Public Interest Research Group Education Fund, and Rock the Vote had filed suit challenging the rules.
In scrutinizing the list of voters, former Kentucky secretary of state Trey Grayson, who is now director of the Harvard University Institute of Politics, said, “We always run this risk of: Which side do we err on? Do we err on the side of leaving a non-citizen or somebody who is ineligible on the voter rolls? Or do we run the risk of removing somebody who otherwise is eligible to vote? And sometimes when you’re trying to do one, you end up doing the other.”
Cate said that as for cases of citizens being mistakenly caught in Florida’s initial screening, “We’re using data based on someone’s last interaction with the Florida Dept. of Highway Safety and Motor Vehicles. We’ve known some of the 180,000 potential non-citizens may have become a citizen since they last updated their driver’s license. But this is the best process we have to remove ineligible voters from our voter rolls, to contact every one of the 180,000 people individually.”
Meanwhile in Colorado, which President Obama won with 53.6 percent of the vote in 2008, Secretary of State Scott Gessler, a Republican, has also urged DHS to use its databases to help the state verify the citizenship of certain register voters.
Gessler said in a letter to Napolitano that more than 2,000 registered voters had presented a non-citizen document to the Colorado Department of Motor Vehicles during a driver’s license transaction.
In a letter last month to Gessler, Alejandro Mayorkas, director of U.S. Citizenship and Immigration Services, a DHS agency, said, “We must further assess serious legal and operational issues” before deciding whether to give Colorado the information it sought.
“I know they have some information that will help us. For example, everyone who is here legally, every green card holder or holder of a student visa, that information is kept” by DHS, said Gessler in an interview Friday. “And that’s information we could use. They also have information on illegal residents here, not all of them of course. I recognize that information is not perfect, but that information could help us as well. I don’t expect the databases that Homeland Security has to solve every problem with 100 percent accuracy, but it could really go a long way to helping us out a lot here in Colorado, and I’m sure in other states too.”
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How do non-citizens wind up being registered voters in Colorado? “A lot of times people mistakenly believe they can register to vote even if they’re not a citizen,” Gessler said.
Asked whether 2,000 or so noncitizens being registered to vote is a significant issue in a state where more than 2.4 million people voted in the 2008 presidential election, Gessler said, “Colorado has a history of close races: for example, one of our current congressmen, Jared Polis, won his first election as a member of the Board of Education – an at-large seat which meant he ran statewide, by 90 votes,” Gessler said.
And to those who might impute a political motive to Gessler to scrub the voter rolls in a state which swung from Republican in 2004 to Democratic in 2008, Gessler said, “I’ve got an obligation enforce the law and let the chips fall where they may.”
Election law expert Rick Hasen, a law professor at the University of California Irvine School of Law, said, “If we were serious about dealing with non-citizen voting, which does happen on occasion, we should move to national voter registration for federal elections, and check data against citizenship records.”
But he said for Congress to create such a national election agency “is not politically feasible now.”