The dispute between the state of Florida and Eric Holder’s Justice Department took an interesting turn last weekend when the DOJ finally agreed to give Florida access to federal databases as part of the state’s effort to verify citizenship of registered voters. 

This is a complete reversal. DOJ’s prior refusal to provide such information had led Florida to file a federal lawsuit in Washington against the administration in June.

Several weeks ago, DOJ also lost a request for a temporary restraining order against the state in a separate lawsuit that sought to enjoin the state’s program to remove aliens from the voter registration list.

A week ago, Florida Secretary of State Ken Detzner notified all supervisors of elections that the Department of Homeland Security had finally agreed to give Florida access to the “Systematic Alien Verification for Entitlements (SAVE) database.” Florida will sign a Memorandum of Agreement with DHS that will include a training program for state personnel on how to access the SAVE database.

As Detzner says in his letter, “It is an unfortunate but now undeniable fact that Florida’s voter rolls include a number of noncitizens.” In fact, Florida has already found 100 confirmed cases of noncitizens who were registered, of whom more than half had also illegally voted in prior elections.

This is a positive development, but it happened only because Florida stood up to Department of Justice threats and was willing to sue the administration. DHS, which had resisted providing Florida with citizenship status information for more than a year in violation of federal law, capitulated only after the lawsuit was filed. DHS would have been an almost sure loser in that case because federal law (8 USC 1373(c)) mandates that the federal government respond to state inquiries “seeking to verify or ascertain the citizenship or immigration status of any individual.” That particular provision was one of the key reasons the Supreme Court just upheld Arizona’s requirement that police officers check the citizenship status of individuals they arrest if they have a reasonable suspicion they are in the country illegally.

But the Obama administration has been ignoring this mandate. In fact, this case may also have been settled not just because of the Arizona decision in the last week of June, but because the Colorado secretary of state, Scott Gessler, who has been trying to get this citizenship information from DHS, also threatened to file suit. And his threat was joined by election officials from 11 other states.

Gessler, by the way, recently released letters from 430 noncitizens asking to be removed from the voter rolls after critics, including the Brennan Center, falsely insisted there was no problem in Colorado or other states with noncitizens registering to vote.

The real question now is whether, despite agreeing to settle Florida’s lawsuit, DHS will use bureaucratic red tape to slow down and hamper the access of states like Florida and Colorado to citizenship information. The next few months will tell. But while DHS surrendered in the lawsuit filed in Washington by Florida, the DOJ has not yet surrendered in the lawsuit it filed in Florida trying to stop the removal program as a supposed violation of the National Voter Registration Act. Although DOJ lost the initial hearing when it sought an injunction, because the judge concluded that removing noncitizens is not a violation of the NVRA, that case remains pending.



Hans A. von Spakovsky is a senior legal fellow/manager, Civil Justice Reform Initiative at the Heritage Foundation's Center for Legal and Judicial Studies.