A federal appeals panel recently issued an astonishing decision holding that federal law forbids the State of Florida to remove non-citizens from its voter rolls in the 90 days before a federal election. Even more astonishing is the fact that the Florida Secretary of State has not committed to appealing this ruling. It is imperative that he do so at once.
This convoluted legal story began in 2012, when Florida sought to implement a program to identify and remove non-citizens from its rolls. For its efforts, it was sued both by Eric Holder’s Justice Department and, in a separate action, by a group of liberal advocacy organizations, primarily on the theory that Florida’s procedures for identifying non-citizens were allegedly inaccurate.
The challengers also relied on an obscure provision of the National Voter Registration Act (NVRA), which is popularly known as the “Motor Voter” law. The NVRA tells state officials how to go about canceling the registrations of voters who may have moved elsewhere. Basically, the law requires a special mailing to those who may have moved, followed by a waiting period if they don’t reply, after which time they may be removed from the rolls.
The NVRA also mandates that the effort to cancel the registrations of those who have moved must stop during the 90 days right before an election (the “freeze” period). Those challenging Florida’s law argued that this 90-day freeze should apply as well to any systematic effort to remove non-citizens – meaning foreign nationals, whether lawfully or unlawfully present in the U.S. – from the voter rolls.
Pause for a moment to consider just how extraordinary that argument is. Non-citizens were never eligible to register or vote in U.S. elections in the first place – indeed, it is a criminal violation for them even to attempt to do so. Thus, they are in a fundamentally different category than eligible U.S. voters who have moved out of state, who are the voters the NVRA seeks to manage. As one trial judge observed, under the plaintiffs’ interpretation Florida would be barred from removing any ineligible registrants during the freeze period, including “minors, fictitious individuals, [and] individuals who misrepresent their residence,” which he called “an absurd result.” Both trial court judges dismissed this claim, and the private plaintiffs appealed.
In April, a divided three-judge panel of the 11th Circuit Court of Appeals bought the plaintiffs’ argument and reversed, in Arcia v. Florida Secretary of State. Squarely rejecting any distinction between “the removal of people who were once entitled to vote” and “the removal of people who never had eligibility (like non-citizens),” the appeals court held, in a stunning 2-1 decision, that Florida must desist from any program that systematically tries to remove non-citizens from the voter rolls in the 90 days running up to an election.
By all rights, this unexpected, split decision should have been appealed, either to the entire 11th Circuit or to the U.S. Supreme Court, where there was a good chance it would have been overturned. In response to this ruling, however, Florida’s Secretary of State, Ken Detzner, and its Attorney General, Pam Bondi, did a very strange thing: they did absolutely nothing. One suspects that they were pressured into inaction by Governor Scott, who was in the midst of a tough reelection battle. In any case, one appellate deadline after another was quietly allowed to lapse until, last June, Florida had forfeited its right to appeal to the Supreme Court.
But this peculiar story did not end there. The 11th Circuit panel withheld its final judgment pending certain minor revisions to its final ruling. Just last month, on November 17, the panel vacated its April decision and reissued its ruling, which is basically the same decision and still 2-1 in favor of the plaintiffs.
The effect of the court’s recent action is to give Florida another bite at the apple, because the November 17 ruling starts the “appeals clock” all over again. The most important deadline is still some time off: Florida has until February 15 of next year to appeal to the Supreme Court.
We all need Florida to appeal this ruling. States should be encouraged to clean their voter rolls and to remove non-citizens. Moreover, now is the time to strengthen electoral integrity laws, not to weaken them. A recent study published in a scholarly journal by political scientists at Old Dominion University concluded that non-citizens registered and voted in U.S. elections, and at substantial rates – perhaps 6.4 percent in 2008 and 2.2 percent in 2012. If this study is true even in part, the implications are staggering, given the millions of non-citizens present in the U.S.
Yet, we still do not know at this point whether Florida will choose to appeal, and, in fact, it seems doubtful. Repeated inquiries by Judicial Watch have yielded no information about the current intentions of Florida’s officials. Given their failure to appeal last April, it appears that Florida’s Secretary of State and Attorney General may be willing to drop their appeal of this matter again.
The panel’s decision distorts the meaning of the NVRA and impairs its effectiveness, at the very time when we need that statute to work. An appeal would have an excellent chance of prevailing. It would be a terrible shame, amounting to a dereliction of duty, if Florida fails to appeal now.
Robert D. Popper is a senior attorney at Judicial Watch.
