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Former GOP Justice lawyer: DOJ erred and DHS broke the law in fighting FL's noncitizen voter purge

The Department of Justice acted politically and erred in demanding Florida cease its purge of noncitizen voters, according to a conservative former Justice lawyer who helped enforce federal voting laws for years.

The Justice Department’s voting-rights section said last week that Florida’s attempted purge probably broke federal law because the 1965 Voting Rights Act requires federal permission for the program and the 1993 National Voter Registration Act bans voter purges within 90 days of a federal election.

“If this ended up in court, the DOJ would lose,” said Hans von Spakovsky, with the conservative Heritage Foundation. “The justice department doesn’t have a basis in the statutes they’re citing.”

But von Spakovsky and other Republican lawyers say the law probably has been broken – but by the federal government itself.

Under federal law, the Department of Homeland Security is supposed to furnish citizenship information to the state for, among other things, checking voter registration rolls. But DHS, first asked for the data in mid October 2011, has refused, email correspondence shows.

A DHS spokesman refused comment on whether the agency is breaking the law.

Von Spakovsky legal analysis is likely to be strongly echoed in Republicann Secretary of State Ken Detzner’s DOJ response later today. Like other conservative lawyers, von Spakovsky said the DOJ – controlled by Democratic President Barack Obama’s appointee – acted politically.

Von Spakovsky worked at the Justice Department from 2001-2005 under Republican President George W. Bush. Liberal critics point to a 2008 inspector general's report that accused von Spakovsky of being a key player in a Bush-era effort to pack the Justice Department with politically motivated hires.

DOJ has refused comment.

As for the Voting Rights Act claim, von Spakovsky said, Florida already received federal permission to remove noncitizens, which is clearly spelled out in Chapter 2011-40 of Florida’s statutes. The Justice Department has opposed parts of that statute – but never the noncitizen language, said von Spakovsky and the state’s election department.

What’s more, the Voting Rights Act probably applies to only five Florida counties – Monroe, Hillsborough, Collier, Hardee and Hendry – and not the other 62 in Florida, including Miami-Dade where about 1,600 of the 2,700 potential noncitizens were initially identified by the state.

As for the National Voter Registration Act, nicknamed “Motor Voter” or just NVRA, von Spakovsky said, it applies to eligible voters who became ineligible to cast ballots as a result of moving, criminal conviction or mental incompetence.

At issue is this paragraph in the law: “a State shall complete, not later than 90 days prior to the date of a primary or general election for Federal office, any program the purpose of which is to systematically remove the names of ineligible voters from the official lists of eligible voters.”

Last week, T. Christian Herren, the DOJ’s lead civil rights voting lawyer, said the state’s voter-purge effort broke that law.

“The practice described above appears to be a program to systematically remove the names of potentially ineligible voters,” Herren wrote. “As a consequence, the practice appears to violate the NVRA.”

Penda Hair, co-founder of the liberal voter-advocacy group The Advancement Project, called on DOJ to get involved and said it’s right and the state is wrong.

Hair said election officials may take steps to ensure the reliability of the voter rolls, but any systematic reviews should be done in years when there are no federal elections.

The state’s noncitizen purge is dangerous, she said, because it could have a disproportionate impact on Hispanic and Haitian voters. And the purge is happening too close to the election, she said, making it harder for people to verify their citizenship before Election Day.

"The state is flouting the federal law," Hair said. "This is a hugely overbroad purge."

Liberals have described the purge as an attempted act of “voter suppression,” in part because so many of the targeted potential noncitizens — 87 percent — are minorities. Whites and Republicans are the least likely to face removal.

A major reason minorities are disproportionately caught up in the hunt for noncitizen voters: Hispanics and Haitians comprise the larges immigrant groups in Florida. Any effort to target noncitizens will focus on new immigrants.

The purge has been put on hold in nearly all 67 counties after the DOJ demanded the effort cease. Also, the state-produced list of nearly 2,700 suspected noncitizen voters was generated with some outdated data, targeting hundreds of actual citizens who are lawful voters.

Von Spakovsky said the counties should proceed with the citizenship checks after contacting the Florida Attorney General Pam Bondi’s office to get an ok. He said Bondi should contemplate suing. Bondi is reviewing the matter.

About 500 people in Miami-Dade have been found to be lawful citizens and voters. Only 13 noncitizens have been found. Two of them might have voted and could face prosecution. The county has been unable to identify more than 1,100 potential so far.

Assuming the purge halts, those people could vote this year – even if some are noncitizens.

"Not a single eligible voter as far, as I know, has been removed from the voter rolls," Republican Gov. Rick Scott said in Wednesday interview with WNDB radio in Daytona Beach, according to a News Service of Florida transcript. "Not one. And we're working to keep it that way."

"Their vote should not be diluted by people who don't have the right to vote," Scott said. "We need to be reviewing our voter rolls and making sure only those individuals who have the right to vote … are voting."