In a letter dated June 6, 2012, Florida Secretary of State Ken Detzner has questioned the legal authority of the U.S. Department of Justice's opposition to Florida's verification and purge of non-citizens from Florida's voter rolls.
Secretary Detzner maintains that Florida is properly removing non-citizens from the voting rolls while maintaining due process rights for lawfully eligible voters.
"At the outset, it is important to note that the process initiated by the Florida Department of State has identified registered voters who, by their own admission, are not United States citizens. These ineligible persons have been appropriately removed from the voter rolls," Detzner said. "Pursuant to Florida law, no person has been or will be removed from the voter rolls without the fundamentals of due process: notice, an opportunity to be heard, and a determination by the county supervisor of elections that a preponderance of the evidence shows the voter is ineligible."
Detzner also makes the argument that the DOJ's interpretation of the National Voter Registration Act (NVRA) would actually violate the Equal Protection Clause by allowing lawful citizen's votes to be diluted through the act of non-citizens voting in elections.
"If the effect of the NVRA is to force a state to allow never-eligible non-citizens the opportunity to vote, then the statute might violate the Equal Protection Clause of the Constitution, which guarantees that the right to vote cannot be denied by a dilution of the weight of a citizen's vote. If [the] DOJ applies the NVRA in this manner, then presumably eligible voters in Florida have the right to bring a lawsuit in federal court to test whether their votes are being unconstitutionally denied by the federal government," Detzner said.
Detzner also questions the legal authority of the Department of Homeland Security to deny the State of Florida access to its database to verify the status of illegally registered voters:
"For nine months, Florida has sought access to the best available information to ensure the accuracy of our voter registration rolls: the Systematic Alien Verification for Entitlements (SAVE) database maintained by the Department of Homeland Security (DHS). Because DHS has repeatedly blocked Florida's access, we have been unable to send additional information to supervisors of elections since April 30, 2012. We continue to wait for access to the most current information available, and we respectfully reiterate our request for immediate access to the SAVE database...
... By denying Florida access to the SAVE database, DHS appears to have violated federal law, which provides that states may use the SAVE database "for any legal purpose such as ... voter registration," and that DHS "shall respond to an inquiry by a .. . State . .. government agency ... seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information." 76 Fed. Reg. 58525, 58527 (Sept. 21, 2011); 7 U.S.C. § 1373(d)."
Detzner concludes in his letter that the DHS is illegally creating a situation for the DOJ to assert that Florida is violating time periods related to voting laws:
"In sum, the practice DOJ now appears to be endorsing is as follows: the federal Department of Homeland Security may, for months, violate federal law and deny Florida and other states access to the SAVE database so that the federal Department of Justice may then assert that the resulting delays in a state's election-integrity efforts violate the time periods established in another federal law. This hardly seems like an approach earnestly designed to protect the integrity of elections and to ensure that eligible voters have their votes counted."