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Statute Says: Florida's Voter Purge Violated 90 Day Rule

By William Peacock, Esq. on April 08, 2014 | Last updated on January 24, 2023

These are my favorite kinds of opinions, the ones that base their reasoning completely on the plain text of a statute. They're the easiest to read, easiest to understand, and they always make you wonder: how did this get all the way to the appeals court? Florida had a voter purge in 2012, first in the primary, then in the general election. The program used DMV data to compile a big list of suspected ineligible voters, which was later whittled down from around 180,000 to 198. Ultimately, approximately 85 voters were removed. For those 85 names, the Florida Division of Elections spent $92,500 in legal fees, according to the Tampa Bay Times. As for the legality of the removals, because the process dragged on long enough to trigger a federal prohibition on systematic voter registration purges within 90 days of an election, and because the panel was sufficiently literate to be able to read and understand the plain text of the statute, the majority held that the purge violated the law.

Standing

The two named plaintiffs, Karla Vanessa Arcia, a naturalized citizen from Nicaragua, and Melande Antoine, a naturalized citizen from Haiti, were on a purge list, but were ultimately allowed to vote. The panel held that the pair had standing, as at the time this lawsuit was filed (the 90-day window before the 2012 election), there was a reasonable probability that they would be mistakenly identified as ineligible and purged. As for the organizational plaintiffs, they had injury-in-fact standing because they had to divert resources towards locating members that were on the verge of purge. They also had associational standing, because they each have members who faced a realistic probability of injury from the mistake-ridden program.

Mootness

The 2012 election, right? The court tagged this as a classic "capable of repetition, yet evading review" case, as there was only a 90-day window to challenge the program initially, and the state could repeat the purge program in the future. (In fact, per the Times, the state just abandoned a pre-2014 election purge last week.)

Statute Says

The 90 Day Provision, found at 42 U.S.C. § 1973gg-6(c)(2)(A), states:
A State shall complete, not later than 90 days prior to the date of a primary or general election for Federal office, any program the purpose of which is to systematically remove the names of ineligible voters from the official lists of eligible voters.
This was a program, to remove ineligible voters, and it didn't wrap up before the 90-day mark. As for "systematic:"
[T]he Secretary used a mass computerized data-matching process to compare the voter rolls with other state and federal databases, followed by the mailing of notices. Certainly, it is telling that the database that Secretary Detzner used before the general election--SAVE--stands for Systematic Alien Verification for Entitlements.
But there is hope if the state wants to resume "Project Integrity," the administration's code-name for this year's abandoned purge:
[W]e emphasize that our interpretation of the 90 Day Provision does not in any way handcuff a state from using its resources to ensure that non-citizens are not listed in the voter rolls. The 90 Day Provision by its terms only applies to programs which "systematically" remove the names of ineligible voters. As a result, the 90 Day Provision would not bar a state from investigating potential non-citizens and removing them on the basis of individualized information, even within the 90-day window.
Sounds expensive. Maybe even more expensive than the $92,500 spent on defending the systematic program in court.

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