-Special Report by Brad Friedman and Ernest A. Canning, The BRAD BLOG
Florida Gov. Rick Scott (R), his recently appointed Secretary of State Ken Detzner (R), and their surrogates are attempting to deceive the media, the public, and possibly even the federal court system about their state's effort to use a federal immigration database as part of a state program that could result in the purge up to 182,000 registered voters who, the state says, are "potential non-citizens".
A review of public documents and internal emails obtained by The BRAD BLOG on the heels of a federal lawsuit filed against the state last week by the U.S. Department of Justice (DoJ) --- charging that Florida's attempted purge of voter rolls violates federal law --- reveals that claims being repeatedly made by the Florida officials about both the U.S. Department of Homeland Security (DHS) and DoJ are disingenuous at best.
Admissions made to DHS officials on at least two occasions, by a high-ranking attorney at the FL Dept. of State (FDOS), undermine the public assertions of both Scott and Detzner, who each claim that the federal government is purposely withholding access to a federal immigration database so that it cannot be used for scrubbing illegal voters off the state rolls.
The false allegation that the DHS has "refused" to provide access to the database, so as to prevent the state from lawfully removing illegally registered non-citizen voters, was also repeated in Florida's own federal complaint, which it recently filed against DHS.
In offering this deceptive claim, Scott and Detzner are knowingly inflaming an unsubstantiated conspiratorial scheme that the Obama Administration is working to keep illegal voters on the rolls in order to enhance the President's 2012 election prospects.
The first-hand evidence reviewed by The BRAD BLOG, obtained via public records requests under Florida's Sunshine Act, reveals that both Scott and Detzner are advancing the "refused access" canard --- echoed by both the Rightwing and non-Rightwing media --- in order to confuse the public and obscure the reality that the state's controversial purge could potentially disenfranchise thousands of perfectly legal citizen voters...
A systematic plan
Florida's highly flawed purge program began, according to the lawsuit filed by the DoJ [PDF] last week, "in early April" when the FL Division of Elections (DOE) sent "a list of voters identified as potentially ineligible due to lack of citizenship" to the Supervisors of Elections in all 67 of Florida's counties.
On April 23, according to the complaint, the DOE sent the county election officials a PowerPoint presentation entitled "Processing Ineligible Registered Voters-Non-Immigrants." This was followed by a May 9 formal announcement by Detzner's office of a "New Initiative to Remove Non-citizens from Florida's Voter Rolls."
Under the provisions of the National Voter Registration Act (NVRA), however, Detzner's May 9 "new initiative" had to be completed no later than May 16 --- 90 days prior to the next federal election in FL. Yet, on May 16, officials from the FL Dept. of State, the DOE and the Department's Office of General Counsel "presented a training session in the form of a PowerPoint presentation entitled 'List Maintenance Categories and Procedures'" to county election officials at their State Association of Supervisors of Elections annual conference. The presentation described "a workflow overview' diagram for what Florida described as 'Non-US Citizens Project'," according to the DoJ complaint.
The federal NVRA, while requiring states to perform periodic voter list maintenance, bars "any program the purpose of which is to systematically remove the names of ineligible voters from the official lists of eligible voters" within the 90-day period before a federal election. In its federal complaint, the DoJ has sought to enjoin what it describes as a systematic program that Florida is carrying out in violation of the NRVA's 90-day pre-federal election window.
Florida officials, however, including both Scott and Detzner, insist the late start of the attempted purge was forced on them by a DHS "refusal" to allow them access to a federal immigration database, which, they say, is far more accurate and reliable than the records available at the state level for documenting immigrant and citizenship status.
Since its initial roll-out, critics of the purge program have accurately documented how it has, so far, managed to ensnare hundreds, if not thousands of legally registered citizen voters by threatening to remove them from the voter rolls just months before the state holds both its federal primary elections in August and the 2012 Presidential election in November.
In lieu of access to the federal immigration database, Scott and Detzner relied instead upon a FL Dept. of Highway Safety & Motor Vehicle (DHSMV) database to verify citizenship status, even though they knew the DHSMV database was both outdated and deficient, according to both the ACLU and DOJ lawsuits. The DHSMV did not require documentation of citizenship status until the beginning of 2010. Thus, its database may not accurately reflect the proper status for individuals who last obtained a new or renewed driver's license prior to the start of that year.
As explained by U.S. Assistant Attorney General Thomas E. Perez, in his June 11, 2012 letter [PDF] to Detzner, even the federal database in question --- the Systematic Alien Verification for Entitlements (SAVE) Program --- does not contain "a comprehensive and definitive listing of U.S. citizens." It can only verify citizenship for naturalized citizens and those born abroad who derived citizenship from U.S. parents. SAVE cannot verify citizenship for individuals born in the U.S.
Thus, even SAVE would have failed to verify citizenship status of natural-born U.S. citizens like Bill Internicola, the 91-year old, Brooklyn-born, decorated WWII hero who would become one of hundreds of long-time registered FL voters to receive notice that he had just 30 days to request an administrative hearing before he faced a process that would remove him entirely from the voting rolls.
SAVE may well provide the best record of immigration and citizenship status available. However, the public claims made by Scott and Detzner that federal officials "stonewalled", "blocked" and "refused access" to FL for a year are simply untrue, according to the emails we've examined from the FL Dept. of State.
'We had to sue them'
"Now, what we tried to get was a very good database, that Homeland Security has called SAVE, that we have a right to use for voter registration," Scott told NPR's Michele Martin during an interview on June 13. "For whatever reason, Homeland Security, for the last year, has decided not to give it to us. So we were put in a position that we had to sue them to get that database."
On June 12, Scott similarly told CNN: "Homeland Security has been stonewalling to give us a database we're entitled to. We've been asking for months. We were put into a position where we had no choice but to sue Homeland Security."
"We want to work with Homeland Security to get it. So we've done all the right things. So we are put in a position, we don't have a choice but to sue them to get the database we're entitled to," he reiterated during the same interview.
"We don't understand why," he insisted. "We've done all the right things. We were put in a position [that] we don't have a choice but to sue them," he repeated yet again during the same CNN interview.
Scott would offer nearly identical responses to Fox's Neal Cavuto during a June 11 interview.
But Scott does "understand why" the state did not receive access to the database. If he doesn't, it's only because he has not been briefed by his own Dept. of State which knew, and agreed, as long ago as last year, as to why they were unable to access SAVE for use with the state's voter registration database.
'Significant problems...of your own creation'
Days after Scott's PR blitz, on June 19, Sec. of State Detzner, who was appointed by Scott in February of this year, made similar charges in a 5-page letter [PDF] sent to DHS Secretary Janet Napolitano claiming that the late start date of the Florida program was "Because DHS has blocked Florida's access to the SAVE Program."
In his letter --- first sent to us unsolicited by Scott's Communications Director Brian Burgess last week, when notifying us of his objections to our accurate characterization of Scott's responses in the NPR interview --- Detzner averred [emphasis added], "For nearly a year, Florida has been prepared to comply with all of the generally applicable conditions of the SAVE Program. Nonetheless, USCIS [U.S. Citizenship and Immigration Services] has been generally non-responsive and has failed to specifically identify any conditions that Florida has not satisfied."
"These delays," Detzner continues to Napolitano, "have significantly prejudiced Florida's ability to fulfill its legal obligation to verify that its voter registration rolls are current and accurate."
But internal documents from an attorney within his own department reveal that Detzner's claim that "Florida has been prepared to comply" with the requirements of the SAVE Program "for nearly a year", is simply untrue.
Burgess' email to us also included an unsubstantiated broadside against what he described as the federal government's "absurd excuse for denying Florida access to the SAVE system". Burgess inferred a sinister conspiracy by describing it as "nothing more than a stall tactic."
The statements made by Scott to NPR, CNN and Fox, along with those offered in the indignant 6/19/12 letter from Detzner to Napolitano, as well as the unsolicited commentary sent to us by Scott's spokesman Burgess, are all belied by the email communications [PDF] between the FDOS --- which is seen both acknowledging and agreeing with DHS' requirements for access to SAVE as long ago as last year --- and officials at DHS.
The email thread details a protracted and unsuccessful effort by FDOS to bypass that which is required of every governmental use of the SAVE Program in order to access its database.
The emails from FDOS Asst. General Counsel Maria Matthews, as reviewed by The BRAD BLOG, buttress the claims made by the DoJ in its own 5-page letter [PDF] sent to Detzner on June 11, alerting the state to the DoJ's intention of filing federal suit in order to halt their "unlawful" and "systematic" voter purge program.
"Your claim that the Department of Justice and the Department of Homeland Security have worked in concert to deny Florida access to the SAVE Program is simply wrong," wrote Asst. Attorney General Thomas E. Perez in his letter, adding [emphasis added]: "The significant problems you are encountering in administering this new program are of your own creation."
The DoJ's lawsuit against Detzner "in his official capacity" was filed in the U.S. District Court for the Northern District of Florida (Tallahassee) the very next day, in order "to protect the rights of eligible citizens to vote and to ensure that the State complies with the voter protections enacted by Congress through the NVRA."
'This isn't going to fly'
Last year, shortly after he was sworn into office following his 2010 election, Gov. Scott asked his then Republican-appointed Sec. of State Kurt Browning how he, Browning, knew that all of the state's 11.2 million registered voters were actually legal U.S. citizens, according to an article by the Miami Herald's Marc Caputo. The article explains the genesis of what has now become a highly politicized public war pitting Florida Republicans against the Obama Administration in a pitched battle over Presidential election year voting rights in the Sunshine State.
The conversation between Scott and Browning reportedly resulted in the creation of a list of 182,000 potential non-citizen registrants culled, in part, from the faulty and incomplete citizenship data retrieved from the state's DHSMV driver's license database.
Browning says he knew the information was faulty. The state Division of Elections then culled the list down to some 25,000 registered voters who might be non-citizens. That number was still "too high for Browning," according to Caputo.
"Browning knew the programmatic, political and legal pitfalls of the noncitizen voter-purge program," Caputo reports in the Miami Herald. "He knew the voter rolls --- like any massive database --- has errors. And comparing the rolls to another database can compound those errors."
"I didn't feel comfortable rolling this initiative out," said Browning, who had served as an election official for nearly 30 years. "Something was telling me this isn't going to fly. We didn't have our I's dotted and T's crossed when I was there."
In January of 2012 Browning announced that he would step down from his position as FL Sec. of State, effective February 12th. Scott appointed Detzner to replace him.
The new Secretary of State failed to display his predecessor's caution.
In his 6/11/12 letter to Detzner [PDF] --- ordering the state to immediately halt their purge program and notifying them that they intended to file suit the next day --- Asst. AG Perez summarized the precise reason why DHS had failed to give access to the SAVE database for use with the Florida Voter Registration list.
From The BRAD BLOG's examination of documents from most of the players involved, Perez' description appears to be accurate.
The reason had nothing to do with a federal conspiracy, and officials at the FDOS know that very well, since they themselveshad agreed long ago with DHS officials that they did not have the information required to access the federal database.
Admissions made in email communications [PDF] between the FL Dept. of State's Assistant General Counsel, Maria Matthews and DHS officials confirm that the federal agency did not "block" Florida's access to SAVE. Rather, access has been impeded by the Sunshine State's own inability to furnish "unique identifiers", such as alien registration numbers or other numerical identifiers found on immigration-related documents, precisely as DoJ and DHS have asserted.
The emails document that --- despite public claims to the contrary by Scott and Detzner --- as early as October of last year, Matthews fully acknowledged Florida's inability to supply DHS with the documentation required for all governmental agencies seeking access to the federal database.
In his 6/12/12 letter to Detzner [PDF], Alejandro N. Mayorkas, the Director of USCIS, the division of DHS responsible for maintaining the SAVE Program, noted that his department explained to FDOS "as early as October 2011, the SAVE Program can verify naturalized and derived U.S. citizens and the status of non-citizens only if unique identifiers, such as alien registration numbers or certificate numbers found on immigration-related documents are provided."
Underscoring Mayorkas' claim this month, a 2009 DHS video, published before Scott even became Governor, reveals that this requirement is not something DHS simply invented in order to thwart Florida's access for use with voting records in 2011. The 2009 video explains how access to the SAVE system works: [emphasis added]: "Using the system, an agency representative will enter the applicant's information such as the alien registration number or other numeric identifier…In some cases the agency may need to submit copies of the applicant's immigration documents."
The state of Florida knew all of this, despite their public claims now to the contrary.
Eight months ago, in an October 24, 2011 email to DHS, Matthews confirmed that FDOS was "told that any programmatic match requires the alien registration or resident number."
She goes on to concede, in the same email, in a statement directly contradicting numerous public assertions made by Detzner, Scott and their surrogates [emphasis added]: "This is a significant obstacle as the State of Florida does not collect and is not authorized to ask an applicant for proof of his or her legal status in the U.S."
In that same 10/24/11 email, after conceding that the FDOS Voter Registration database did not include numerical "unique" identifiers that must be provided in order to access SAVE, Matthews details her hopes of bypassing the "unique identifiers" requirement. She inquired as to whether alternative data fields might be used to cross-check with SAVE for accurate citizenship status --- such as "date of birth, Florida driver's license number...last 4 digits of social security number, gender, address" --- in lieu of the required "unique identifiers".
But, as evidenced by DHS' email response at the time, and again this month in both Asst. AG Perez' 6/11/12 letter and Mayorkas' 6/12/12 letter, DHS has consistently maintained, just as explained in the 2009 video, that user supplied "unique identifiers" such as alien registration numbers --- numbers which Matthews admitted are not collected by the FDOS --- are required to access SAVE.
On Monday, March 5, 2012, some five months after initially conceding her department did not have access to the required "unique identifiers", Matthews checked in again by email with DHS official Howard Roth to see if the agency had any new updates on the matter. She also notified Roth that she'd be meeting with the new Sec. of State on Wednesday.
The following day, March 6, Roth replied to Matthews on behalf of the DHS, reiterating that little had changed. The agency still required a unique numerical identifier in order to use accurately and properly use the SAVE database for cross-checking citizenship status of registered Florida voters --- just as Matthews had acknowledged the state could not do a full five months earlier.
"As we discussed," Roth explained in his March 6 response, "we will need an 'A number' [alien registration number] and Natz [Naturalization] Certificate number before we can verify a status in SAVE."
Matthews replied in turn just over an hour later on March 6, claiming, for the very first time in the months long email thread, that the state's DHSMV database does, in fact, employ some numerical immigration information, as the DHS had been requesting from the state for months. She asserted that the state would be able to cross-check voter files with DHSMV records and then use the numerical alien registration numbers from those records, where they exist, to cross-check the files with SAVE.
On Thursday, March 8, two days later, the day after she had been scheduled to meet with her new boss Detzner, she stated directly to Roth: "I don't recall if I had said that we would be able to get the alien registration number or admissions numbers as made available for our Department of Highway Safety and Motor Vehicles."
That week is the first known documented instance of FDOS informing DHS officials that they might be able to get access to at least some of the information required to access SAVE. As it turned out, the DHMSV had already been accessing the federal database as part of its own driver's license program as of January 2010, according to another lawsuit against Florida's voter purge filed by the ACLU earlier this month.
Two months later, on May 17, the day after any such systematic purge of voter registration files in the state of Florida would have been lawful, as per the NVRA, during the 2012 election cycle, Boyd Walden, DHMSV's Director of Motorist Services was reported by The Palm Beach Post as announcing his agency would finally begin checking a list of 180,000 potential non-citizens through the SAVE database "within the next few weeks."
"We are gearing up to get it done. That's the plan," he is quoted as saying on the day after NVRA's legal deadline had passed.
"It's disappointing," FDOS Communications Director Chris Cate said in the same article, that "DHS will not give us direct access to their database but we are very grateful for our state partners at highway safety who understand the importance of having accurate voter rolls."
Of course, by then, Cate most likely knew exactly why DHS had not granted FDOS access to SAVE. The Asst. General Counsel in his office certainly knew. If Cate did know, he didn't bother to tell the Palm Beach Post.
The remarks would foreshadow what has now become a consistent pattern of misrepresentation and misinformation offered to the media by high-ranking Florida officials.
[SEE OUR "TIMELINE: FLORIDA'S 'POTENTIAL NON-CITIZENS' VOTER PURGE, 2011-2012" FOR COMPLETE DETAILS.]
Sec. of State Detzner, Gov. Scott, their Communications Directors, and other Republican surrogates in the media have gone on the offensive, charging that it is DHS, on behalf of the Obama Administration, which is purposely restricting the state from accessing the SAVE database for nefarious reasons.
Sometimes the charges being made are by inference, as in Scott's use of "for whatever reason" twice during his recent NPR interview. At other times, they advance a twisted conspiratorial claim that the DHS and DoJ have acted in concert to prevent non-citizens from being removed from the eligible voter rolls in order to insure the re-election of President Barack Obama.
For example, in his 6/6/12 letter [PDF] to the DoJ, Detzner alleged darkly (and misleadingly), "for nine months, [the DHS] repeatedly blocked Florida's access to the database."
He responded to the charge that his state was violating the NVRA's 90-day pre-election quiet period by charging in turn that "Florida has entered that period only because DHS has repeatedly ignored or rebuffed Florida's efforts to gain access to the SAVE database."
On the very same day that Detzner sent the missive to the DoJ, Rep. Thomas J. Rooney (R-FL-16), a GOP Deputy Whip in the U.S. House of Representatives, would blatantly declare in an angry letter to U.S. Attorney General Eric Holder that the entire matter was part of a federal conspiracy to help Obama win re-election through voter fraud in the Sunshine State.
"Your actions further demonstrate that the Department of Justice, under your leadership, is more concerned with protecting the reelection prospects of the President than with upholding justice and the rule of law," the Congressman railed at the DoJ's threat of a lawsuit which, Rooney claimed, would block the state from "exposing as many as 182,000 registered voters as non-citizens."
"While your department should be working with Florida to stop voter fraud, you are instead actively working to keep noncitizens --- who have committed a felony --- on our state's voter rolls," charged Rooney. "It is time for you to end your blatant politicization of your position as Attorney General and the Department of Justice as a whole."
The inter-agency emails from the Florida Dept. of State demonstrate, however, that it is not the DoJ, but rather Scott, Detzner and their surrogates like Rooney who have 'blatantly politicized' their positions.
'Shameful and un-American'
On June 12, 2012, just days before the DoJ filed their lawsuit in an attempt to stop the unlawful purge, the state of Florida filed its own pre-emptive, federal complaint, ostensibly seeking an order compelling DHS to provide FDOS with immediate access to SAVE.
Disturbingly, although the revelatory emails by Matthews are appended to their legal filing, the body of the complaint, which erroneously alleges that DHS "refused" FDOS access to SAVE, never so much as mentions the real reasons they were unable to access the database. There is no mention of Matthews' email acknowledgments at the Florida Dept. of State, eight months earlier, of those real reasons.
Indeed, one would never know from reading the body of the Sunshine State's 17-page federal complaint that Florida's admitted inability to furnish the "unique identifiers" is why FDOS was unable to access SAVE over the past year.
Thus, while Florida officials have been misleading the public in their media campaign, it appears they have also submitted a deceptive legal filing in a court of law.
In the meantime, both Republican and Democratic Supervisors of Elections in all but three of the state's 67 counties have halted the voter purge in their own counties, after discovering too many legal citizen voters listed among the "potential non-citizens" list approved for use by Detzner after his predecessor Browning "didn't feel comfortable" doing so.
"I would not have sent the list to the counties," Browning told the Miami Herald bluntly.
Ion Sancho, Supervisor of Elections in Leon County (Tallahassee), told us during a recent interview that Supervisors in only three, largely Republican, counties --- Lee, Collier and Bay --- have refused to stop purging their voter lists based on the faulty "non-citizens" lists supplied by Detzner.
Sancho, a longtime Florida election official --- so well-respected by both parties that he was named to oversee the eventually aborted statewide Presidential Recount in 2000 --- told us that he saw the purge efforts by Florida officials as both "shameful" and "un-American".
The effort by those same officials to deceive the media, the public, and perhaps even the courts, might be similarly described.
On June 12, the same day the DoJ filed suit against the state of Florida, U.S. Citizenship and Immigration Services Director Mayorkas sent his letter to Detzner [PDF], reiterating the agency's "willingness to work with Florida regarding possible SAVE Program participation, provided Florida is able to do so consistent with the SAVE Program's mandates and the conditions USCIS has lawfully placed on all SAVE Program participants."
"To date," he asserted again, "Florida has failed to do so."
He then seems to respond to the unsubstantiated charge that the Obama administration is denying access in hopes of allowing non-citizens to remain on the rolls in order to cast illegal votes in the 2012 Presidential election, as Congressman Rooney directly asserted.
"Other state governments have been able to comply with the SAVE Program's mandates and are accessing the SAVE Program for a wide variety of benefit programs," Mayorkas writes. "Five counties in the State of Arizona do so for the purpose of verifying the eligibility of individuals registered to vote. We look forward to continuing to work with Florida on its inquiries regarding its access to the SAVE Program as well."
UPDATE 6/27/12: For a step-by-step timeline, and links to documentation for all of the above, please see our newly posted "TIMELINE: FLORIDA'S 'POTENTIAL NON-CITIZENS' VOTER PURGE, 2011-2012".