Archives for the month of: July, 2012

Florida’s latest federal voting rights lawsuit.
Full disclosure: I’ve been hired as an expert for the plaintiffs.





CONTACT: David Simon

(202) 225-0123

Congresswoman Corrine Brown Files Federal Lawsuit to Protect Florida Voters

(Washington, DC) Congresswoman Corrine Brown, along with the Southern Christian Leadership Conference-Jacksonville chapter, several individual Duval residents, and the Duval County Democratic Executive Committee, will file a federal civil rights lawsuit to ensure that unconstitutional and discriminatory changes to the early voting laws are not implemented.

The August primaries will be the first time Florida is affected by the changes to early voting, which were passed by the state legislature last session. Early voting was instituted after the debacle of the 2000 elections when thousands were turned away from overcrowded polls. Since 2004, Floridians have had access to the polls for eight hours a day, for fifteen days right up until the last Sunday before election-day. The new law reduced early voting to ten days, gave county supervisors arbitrary discretion over the number of hours polls are open, and eliminated voting on the last Sunday.

The lawsuit asks the United States District Court for the Middle District of Florida in Jacksonville to enjoin the Florida Secretary of State and Duval County Supervisor of Elections from enforcing the discriminatory and arbitrary changes to early voting in the state of Florida and in Duval County. Specifically, these changes violate the First and Fourteenth Amendments to the United States constitution, Section 2 of the Voting Rights Act of 1965, 42 U.S.C. and 1973 (a) and the Florida constitution.

“Early voting has worked extremely well for all Floridians and especially for African American voters,” said Congresswoman Brown. “In fact, more than any other racial or ethnic group, African Americans have come to rely on early voting.”

According to Dr. Daniel A. Smith, Professor of Political Science and Research Professor at The University of Florida, in the 2008 general election, African Americans cast 22% percent of the total early vote, even though blacks comprised just 13% of the state’s registered voters. More African Americans vote during the early voting period than on election-day or via absentee ballot combined. Perhaps most strikingly, in 2008, African Americans accounted for roughly 34% of votes cast on the Sunday before the election. These trends are amplified in Duval County where 58% of African Americans voted early in 2008. In last year’s local elections, African Americans cast roughly 34% of the early votes, even though they comprised less than 30% of the electorate, and on the final Sunday of early voting, more African Americans came to the polls than did whites.

“There is absolutely no explanation for restricting early voting other than intentional voter suppression. In fact, it seems that Governor Scott simply does not want people to vote. We should be making it easier for people to get to the polls, not harder,” the Congresswoman declared.

“It is particularly fitting that I am filing this lawsuit at The John Milton Bryan Simpson United States Courthouse,” Congresswoman Brown pointed out. “I sponsored the bill that named this courthouse for Judge Simpson because he was a giant in the civil rights movement here in Jacksonville. Among other things, his orders led to the passage of the Civil Rights Act, and desegregated the schools, city pools, city golf courses, and the city zoo. I know Judge Simpson would not stand for such a blatant attempt to exclude African Americans from the polls.”

Congresswoman Brown and the other plaintiffs are represented by Neil Henrichsen of Henrichsen Siegel in Jacksonville

That’s right.


Out of 11.2 million or so voters on the official statewide rolls as of April 1, 2012.

Here’s some quick analysis…

Approximately 0.000088496% of the current statewide voter roll may have voted illegally once (or perhaps more) over the past decade or so.

The percentage is even less when you consider the tens of MILLIONS of votes cast in local and statewide elections in Florida since 2006.

Notwithstanding the hundreds of Florida citizens who have been falsely accused by the Florida Secretary of State as being “potential noncitizens” who are supposedly corrupting the integrity of our voting system, it’s great to see that Governor Scott has exposed the myth of voter fraud in Florida.

Or not.

You see, the Florida Division of Elections, in its ill-advised and likely illegal effort to purge the voter rolls of what it claims are “potential noncitizens,” originally identified some 182,000 individuals who fit the bill.

Well, not confident in its list, the (new) Secretary of State, Ken Detzner (you see, the previous SOS, Kurt Browning, who was no angel himself when it came to protecting the right of Florida citizens to vote, resigned when he didn’t have enough confidence in the purge list his office originally generated, but that Governor Scott wanted him to pursue), pared it down to some 25,000 names, and then, finally, to 2,625 names, which his office then shipped off to the 67 Supervisors of Elections to do his dirty work.

Some of the SOEs balked, understandably.

But after the purging was done by the independently elected Supervisors of Elections, Governor Scott proudly defended the Secretary of State’s effort, saying to NPR, “We found that nearly 100 individuals that are non-U.S. citizens are registered to vote and over 50 have voted in prior elections.”

Now, the facts.

First, as I’ve documented elsewhere on these pages, no evidence has been provided by the Secretary of State that the 107 “potential noncitizens” it touted as being removed from its list were indeed noncitizens.

Second, also as I’ve documented here, a majority of the 107 individuals who were removed from the voter rolls were not even on the Florida Secretary of State’s purge list of 2,625 “potential noncitizens” that it sent to the Supervisors of Elections. Only 41 of the 107 names were on the SOS’s purge list of “potential noncitizens.”

As for those 41 (out of 2,625) individuals who the SOS identified as “potential noncitizens” and who the SOEs removed from the rolls (presumably after the SOEs–who do the actual purging–received proof), I have crunched the numbers, and identifying exactly 10 who may have cast a ballot.

Here’s the breakdown of the epidemic of alleged “noncitizens” voting, with the county and the last date of the election in which someone using that “potential noncitizen’s” name cast a ballot.

DAD 11/7/2006
HIL 11/7/2006
DAD 11/4/2008
LEE 11/4/2008
PAS 11/4/2008
OKA 11/2/2010
DAD 6/28/2011
ALA PRE-2006
BRO PRE-2006
DAD PRE-2006

Really? That’s it? We should have confidence in the Secretary of State’s new effort to purge Florida voters by matching data from the federal Department of Homeland Security with its own admittedly “obsolete” data?

Frankly, I’d rather trust casting a legitimate vote in Senegal.

Well, I had completely forgotten about this case.

The Initiative & Referendum Institute filed an initial lawsuit back in 2000, bringing a facial challenge to a 1998 ban by the US Postal Service on “soliciting signatures on petitions” on “all real property under the charge and control of the Postal Service.” 39 C.F.R. § 232.1(a), (h)(1) Violators were subject to both a criminal fine and imprisonment. Id. § 232.1(p)(2).

[For the record, I sit on the “Board of Scholars” of the I&R Institute, although I have not received any communication for years from the Institute, now housed at the University of Southern California. Also, for the record, their website is terribly awkward, not to mention, outdated.]

Seemed at the time, a tad harsh. Not to mention, unconstitutional.

But lo and behold! After several iterations by the US Postal Service modifying its rule — and subsequent litigation — the U.S. Court of Appeals, D.C. Circuit, upheld the most recent (2010) Postal Service regulation that allows petition gatherers to solicit signatures while standing on interior postal sidewalks, but the physical act of signing a petition is not permitted on the interior sidewalk. Rather, those wishing to sign the petition must head to a designated “Grace” area to fill in the information on the petition.

But, as Judge Janice Rogers Brown, who signed the majority opinion but wrote separately in a Concurring Opinion, stated:

“…this half-a-loaf solution seems more persnickety than practical. The harms about which the Postal Service is concerned—the impeding of traffic and the appearance of
Postal Service endorsement, Majority Op. at 11–12—and, indeed, all of the harms I can imagine, accrue in the initial, permitted phase of a signature-gathering encounter: the

Look for this decision to be appealed to the Supreme Court of the United States.

Of course, you wouldn’t know that reading the completely misleading headline in the “AP NewsBreak” story rushed to publication by the Washington Post and numerous other outlets.

The real headline should be, “Florida Secretary of State Admits Identifying “Potential Noncitizens with ‘Outdated’ Data.”

The pending agreement with the Department of Homeland Security is hardly a “victory” for the GOP, as the Washington Post’s headline screams.

It is true that the Department of Homeland Security reached a pending agreement with the Florida Department of State to allow the Division of Elections to access the federal SAVE database — Systematic Alien Verification for Entitlements — so as to more accurately identify “potential noncitizens” who might be incorrectly registered to vote in Florida. (Lord knows, the Florida Secretary of State needs help in its endeavors, as I’ve recently documented elsewhere, extensively.

It is important to disassemble the AP’s misleading story regarding the Florida Secretary of State’s “victory.”

First, the pending agreement with Homeland Security prohibits the state of Florida from using only the name and birth date of registered voters when requesting SAVE data to verify whether registered voters are noncitizens. Second, the Division of Elections may only access the SAVE database if it provides a “unique identifier” — such as an “alien number” or a certificate number on a Certificate of Naturalization or Certificate of Citizenship — for those who it suspects may be ineligible to be registered to vote.  But the Secretary of State does not (rightly) collect such information on voter registration forms, and the driver’s license records that the Florida Department of Highway Safety and Motor Vehicles has provided to the Division of Elections are often inaccurate or outdated, leading to numerous false-positives when they are matched with the voter rolls.

In other words, if Florida Supervisors of Elections end up purging voters from the rolls using inaccurate or outdated information provided to them by the Division of Elections, they risk disenfranchising citizens, stripping them of their right to vote.

So, it is quite questionable how newly acquired access to the federal SAVE database will help ferret out “potential noncitizens,” as most citizens on the Florida voter rolls do not have a “unique identifier” that is included in the federal database.

What is not questionable from the pending agreement is that the Florida Secretary of State has admitted that it has been identifying “potential noncitizens” using ‘outdated’ information.

As Secretary of State Ken Detzner stated in a Letter to Supervisors Regarding SAVE sent to the 67 Supervisors of Elections on Saturday, July 14:

The process to identify potential non-citizens will include a carefully calibrated matching process between the Florida Voter Registration System and the driver’s license records of the Florida Department of Highway Safety and Motor Vehicles before any records are verified through SAVE. The existing file of potentially ineligible voters which was created months ago, is now outdated and will not be used as the basis for further action by the Department of State. It should be considered obsolete. (Emphasis in red, mine.)

One would hope that those individuals who are citizens and legally registered, and who were either incorrectly identified as “potential noncitizens” by the Florida Secretary of State, or worse, wrongly purged from the rolls by the Supervisors of Elections in early June because of the use of ‘outdated” or “obsolete” data, will be reinstated.

Clearly, any matching process between datafiles that are created for vastly different purposes may lead to wrongful ‘convictions,’ depriving individuals of the civil rights.

It remains to be seen whether, and how, the Florida Division of Elections will conduct a matching process with the federal SAVE database.  For the sake of the rights of all Floridians, let’s hope it is done more carefully and more transparently than the state’s feeble effort earlier this year.

In Illinois.

Attorney Dan Johnson on his blog, Progressive Advocacy, writes:

On July 6, Governor Pat Quinn signed into law SB 3722 (passed with exclusively Democratic votes) that contains two innovative and exciting provisions that will lead to more citizens voting this November. The first extends the period of time when citizens can register to vote and update their address until the Saturday before the election….I suspect more than 25,000 will be able to vote — who otherwise would have been turned away from their ballots because of government-imposed administrative deadlines — in November of 2012.

The second provision of the new law requires election authorities to offer early voting on the college campuses of the major public universities in the state. This requirement will ensure that college students (who often don’t have a car) won’t have to make their way to the obscure office of the county clerk off-campus in order to cast an early ballot, but instead will be able to go to a high-traffic area and cast their ballot during the few weeks before the election when early voting is offered.

Things couldn’t be more different in Florida. In May 2011, when they passed HB 1355, Republican lawmakers cracked down on voter registration drives, cut the days of early voting (and still prohibit it on college campuses), and made it more difficult for students and other transient populations to change their address and cast a regular ballot. And these actions preceded and were independent of Governor Scott asking his Secretary of State to strip eligible citizens of their voting rights through his bogus, systematic purge of the voter rolls.

While Illinois stands as a model for other states that want to expand the franchise, Florida returns to the days of Jim Crow, erecting barriers to prevent citizens from participating in the political process.


But the Florida Secretary of State has claimed that 9 out of the 107 individuals purged from the voter rolls for allegedly being “potential noncitizens” are from Pinellas, Peter’s beloved county on the sandy shores of the Gulf of Mexico.

Funny thing is, though, of the 37 “potential noncitizens” the Division of Elections flagged from Pinellas in its systematic effort in April to cleanse the voter list, only one was removed by the Pinellas Supervisor of Elections, Deborah Clark, after she reviewed the state’s shoddy work. The other 36 individuals wrongly fingered by Secretary of State Ken Detzner in his unwarranted purge are indeed citizens and are eligible to vote.


Oh, and as if this comes as a shock: 59.5% of those wrongly accused by the Secretary of State who are living in Pinellas County are minorities. And only 1/5 were Republicans.

(You can ask Peter what percentage of registered voters in Pinellas are minorities and Republicans).

But cut the Secretary of State and his crack staff some flack.

His list of 37 “potential noncitizens” residing in Pinellas County was accurate 2.7% of the time.  (Actually, the Division of Elections ill-advised and likely illegal purge has the fingermarks of an individual who evidently is no longer working in the office. Perhaps more on that later…).

The one “potential noncitizen” snagged in the Governor’s expansive and faulty dragnet–a Hispanic man in his 50s, living in St. Petersburg, who registered to vote in 2001 as a Republican(!)–has never cast a ballot in Florida.

Oh well.

The other 8 “potential noncitizens” removed from the voter rolls in Pinellas County–and celebrated by Governor Scott that his purge is working–were in fact identified by and removed from the list by Supervisor Clark.

Of those 8 individuals removed from the county’s list of voters by the SOE, exactly zero are the April 1, 2012 state voter file. That’s a big fat zero. They are not on the state’s list of registered voters, and thus we don’t know anything about them–their party, their race/ethnicity, their age, their past voting history (if any) and most importantly, whether or not they were citizens and eligible to vote.

Seems par for the course.

As I’ve written before, of the 11.2 million registered voters in the state of Florida, the Florida Secretary of State identified 2,625 “potential noncitizens,” and 41 have been removed from the rolls.  And of the 2,625 “potential noncitizens” identified by Governor Scott’s henchmen, there is evidence that perhaps 7 have ever cast a ballot.  It remains unclear, however, as to whether or not they were noncitizens (at the time) and thus ineligible to exercise their franchise.

As I’ve said before, Governor Scott’s Voter Purge must come to a complete halt.

Read the rest of this entry »

So, as I’ve documented before, Lee County is leading the way in the Great Florida Voter Purge.

Fully 44 out of the 107 individuals purged by the Florida Secretary of State for being “Potential NonCitizens” are from Lee County alone.

Back in April, the Florida Secretary of State sent the names of 2,625 “Potential NonCitizens” to the state’s 67 Supervisors of Elections for removal.

Most of the Supervisors were wise enough to doubt the veracity of the list.  But many of them nevertheless sent out letters to the “potential noncitizens” asking these registered voters to provide documentation proving they were eligible to vote.

On that list of 2,625 “potential noncitizens” sent out by the Florida SOS were the names of 13 residents of Lee County.  The Supervisor of Elections,  Sharon Harrington, dutifully went about verifying whether or not these suspected “noncitizens” in Lee County were eligible or not to be on the voter rolls. She determined that two of the 13 “potential noncitizens” targeted by the Florida SOS were not eligible to vote.  She forwarded the names of the two women born in the early 1970s–one a Democrat who registered to vote in 2001 and has never voted, and one who last voted in the 2008 General Election and is registered with the “Unknown Party”–to the Secretary of State’s office for removal.

But SOE Harrington didn’t stop there. She forwarded an additional 42 names to the Secretary of State for removal. The Secretary of State’s office includes those 42 individuals in its touted list of 107 “potential noncitizens” that have been removed from the polls under the directive by Governor Rick Scott.

Yet, there is not a shred of evidence that SOE Harrington actually verified whether these individuals were not citizens and thereby ineligible to be on the voter rolls. Rather, she’s relied on information on forms filled out by potential jurors provided by the local clerk of the courts.

According to Harrington, her office has been working closely with the local clerk of courts to ferret out ineligible voters by matching names on the Lee County voter rolls with the names of potential jurors who asked to be excused from duty because they claimed they were not citizens.

“No, I’m not a vulture,” Harrington, a Republican, told the Naples News recently.

Vulture or not, there’s no way to know whether the potential jurors lied about their citizenship to get out of jury duty.

Of the 42 individuals that Lee County purged on its own, and that Governor Scott’s office has celebrated as being “potential noncitizens” that are now off the voter rolls, 12 were not even registered to vote in Lee County as of April 1, 2012.  There is absolutely no indication that these individuals, tossed off the voter rolls and touted as “potential noncitizens” being removed to save the state from voter fraud, were not citizens and legally registered voters.

Of the remaining 30 individuals who were purged by the Lee SOE and included in the Florida Secretary of State’s list of “potential noncitizens,” 4 are African Americans, 11 are Hispanic, 13 are White, 1 is Asian American, and the race/ethnicity of 1 is unknown.  As for party registration of the 30 who were dubiously identified by the Lee SOE to be “noncitizens,” 12 are registered Democrats, 6 are NPAs, 11 are Republicans, and (yet another) was registered with the “Unknown Party.”

The takeaway point here, however, is that SOE Harrington appears to be stripping individuals of their voting rights by using information from jury duty forms that may not accurately inform whether an individual is a citizen or not.

As I’ve written before, I don’t condone fibbing to get out of jury duty. And of course, when these individuals were called for jury duty, they may very well not have been American citizens at the time, but have been subsequently naturalized as such.

What’s more troubling than avoiding jury duty, of course, is that Lee County is apparently disenfranchising voters–stripping them of their constitutional right–based on untrue or outdated statements made by individuals to avoid jury duty.

The practice must stop.

As I’ve written before, the state of Florida is operating under a dual electoral system.

This is clearly unconstitutional, and yet the state conducted its 2012 Presidential Preference Primary under two sets of electoral laws.

Now enter the ACLU, State Senator Arthenia Joyner, and the National Council of La Raza, who on June 29th filed this petition with the Florida Division of Administrative Hearings. The case is to be heard by an Administrative Law Judge.

Below is their joint press release:

July 2, 2012
4:30 PM

CONTACT: ACLU, Sen. Arthenia Joyner, and National Council of La Raza

Media Office,(786) 363-2720 or

ACLU, Sen. Arthenia Joyner, National Council of La Raza, File Legal Challenge over Florida’s Illegal Dual System of Elections

MIAMI – July 2 – The American Civil Liberties Union (ACLU) of Florida, along with State Senator Arthenia Joyner, and the National Council of La Raza (NCLR) filed an administrative petition against Florida Secretary of State Ken Detzner challenging his implementation of a dual election system involving restrictive changes in election procedures adopted by the Florida Legislature in 2011. Along with the ACLU of Florida, petitioners are represented by the Brennan Center for Justice and the Lawyers’ Committee for Civil Rights Under Law.

Currently, the State of Florida is operating an unlawful dual system of elections in violation of the state “Uniformity Statute.”  Sixty-two Florida counties are enforcing restrictive 2011 changes to the Florida election code. However, the previous law still applies in the five counties that are “covered” under Section 5 of the Voting Rights Act (VRA) while the state awaits a federal court decision on whether the 2011 changes violate Section 5.

“Gov. Scott’s insistence that the state go forward with two different sets of voting laws and procedures in different counties not only violates Florida law requiring uniform elections throughout the state, it is a recipe for chaos and another embarrassment for our state,” said Howard Simon, Executive Director of the ACLU of Florida.  “The Governor’s insistence that the state can push the Voting Rights Act aside and not wait for approval from either the Department of Justice or the federal courts, is the clearest indication yet of his agenda to trample on the voting rights of the people of Florida.”

In 2011, the Florida legislature passed a law, referred to by many as the “Voter Suppression Act,” which included changes that make it more difficult for individuals to register to vote, reduce the number of days of early voting, specifically ban early voting on the Sunday prior to Election Day, and increase the odds that Florida voters will be required to cast provisional ballots. In the 2008 Presidential Election less than half of provisional ballots cast in Florida were counted. As required by Section 5 of the VRA, Florida must submit any changes to elections laws to the federal government for “preclearance” to ensure that they do not violate the voting rights of minorities in the five covered counties.  While many provisions of the 2011 law have received Section 5 preclearance, the restrictive portions have not.

Contrary to past practice and state law, and even though the restrictive portions of the 2011 law are not in effect in the five covered counties, Florida ordered elections officials to go forward with implementing the 2011 restrictive changes in the remaining 62 of the State’s 67 counties, while the five counties triggering the VRA review continue operating under the pre-2011 elections code. This has created a confusing and non-uniform election system across Florida.

“The petitioners are asking simply that Florida abide by state law which requires that the same voting rules apply throughout the State,” said Robert Kengle, co-director of the Lawyers’ Committee’s Voting Rights Project.  “The State is failing to apply the state Uniformity Statute in the same way it applied it in the past.”

This administrative challenge is one of several ongoing legal challenges to recent elections changes in Florida. Besides the ongoing preclearance review of the Voter Suppression Act now pending before a three judge federal panel in Washington DC, on May 31st of this year, a federal court in Tallahassee blocked enforcement of key provisions of the 2011 law’s restrictions on civic groups who conduct voter registration drives. In the last month, three different lawsuits, including one filed by the ACLU of Florida and the Lawyers’ Committee and one filed by the United States Justice Department, challenged the state’s “voter purge,” which disproportionately targets minorities and requires United States citizens to re-prove their citizenship or have their names purged from the voter rolls.

“Florida has repeatedly passed laws, and taken administrative actions, that make it harder for eligible citizens to vote,” said Diana Kasdan, counsel at the Brennan Center for Justice. “These restrictions, and others across the country, represent the most significant cutback in voting rights in decades. Rather than erecting senseless barriers to voting, we should make our voting system work for all Americans by modernizing voter registration.”

The petition was filed on Friday, June 29th, with the Florida Division of Administrative Hearings and will be heard and decided by an Administrative Law Judge to be assigned by the Division. The Washington D.C. office of the Bryan Cave Law firm and Mark Herron of Messer Caparello & Self of Tallahassee are also providing pro bono legal counsel in the case.

A copy of the petition with attached exhibits is available here:

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