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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI CIVIL DIVISION
Case No. 1:12-cv-22282-WJZ
Honorable Judge William J. Zloch
KARLA VANESSA ARCIA, an individual,
MELANDE ANTOINE, an individual, VEYE
YO, a civic organization based in MiamiDade County, FLORIDA IMMIGRANT
COALITION, INC., a Florida non-profit
corporation, NATIONAL CONGRESS FOR
PUERTO RICAN RIGHTS, a Pennsylvania
non-profit corporation, FLORIDA NEW
MAJORITY, INC., a Florida non-profit
corporation, and 1199SEIU UNITED
HEALTHCARE WORKERS EAST, a Labor
Union,
Plaintiffs,
v.
KEN DETZNER, in his official capacity as
Florida Secretary of State,
Defendant.
AMENDED COMPLAINT
Plaintiffs KARLA VANESSA ARCIA, an individual; MELANDE ANTOINE, an
individual; VEYE YO, a civic organization based in Miami-Dade County; FLORIDA
IMMIGRANT COALITION, INC., a Florida non-profit corporation; NATIONAL CONGRESS
FOR PUERTO RICAN RIGHTS, a Pennsylvania non-profit corporation; FLORIDA NEW
MAJORITY, INC., a Florida not for profit corporation; and 1199SEIU UNITED
HEALTHCARE WORKERS EAST, a labor union (collectively “Plaintiffs”), bring this action
seeking a declaratory judgment and injunctive relief against Defendant KEN DETZNER, in his
official capacity as Florida Secretary of State (“Defendant”), and aver as follows:
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NATURE OF THE CASE
1.
Plaintiffs are individuals and organizations whose rights and the rights of their
members are affected by the program instituted by the Florida Department of State (“DOS”) to
carry out a systematic purge of alleged non-citizens from the Florida voter rolls.
2.
In April 2012, DOS initiated a program known as “Processing Ineligible
Registered Voters – Non-Immigrants” (the “Program to Purge Alleged Non-Citizens”). DOS
had, to date, collected a list containing more than 180,000 names of alleged ‘potential noncitizens’ (the “180,000-person list”). To initiate the Program to Purge Alleged Non-Citizens,
DOS sent a sample of the 180,000-person list, containing approximately 2,625 names (the
“Initial Purge List”), to Florida’s Supervisors of Elections.
DOS further provided Florida
Supervisors of Elections with direction as to how to review and use this list to determine the
eligibility of currently-registered voters. In particular, DOS instructed Supervisors of Elections
to review existing voter files and further conduct additional research using “whatever other
sources [Supervisors of Elections] have to confirm identity and potential change in legal status.”
DOS further instructed that, once a Supervisor of Elections found “information credible and
reliable” to support the determination that a registered voter was a non-citizen, they should
initiate notice of this conclusion, first via certified mail and second via publication, if necessary.
Several Supervisors of Elections began implementing this program by sending notices containing
allegations of non-citizenship, and some Supervisors of Elections actually purged voters from the
registration rolls.
3.
Following press reports exposing the shockingly low accuracy rate of the Initial
Purge List and demands from the United States Department of Justice and private litigants that
Florida cease its purge efforts, DOS temporarily suspended the Program to Purge Alleged NonCitizens. It did not, however, remedy the ongoing effects of its past actions. It announced that it
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intended to continue the purge later using a different method.
In particular, Defendant
announced that DOS was awaiting a determination from the United States Department of
Homeland Security (“DHS”) regarding the State’s requested access to DHS’s Systematic Alien
Verification for Entitlements (“SAVE”) database. DOS stated that, if granted access to the
SAVE database, it would use the information contained in that database to continue its Program
to Purge Alleged Non-Citizens. DOS admitted that its own information was outdated, and
without the information provided by SAVE, individuals who are naturalized citizens but who
were included on the Initial Purge List would be inconvenienced, and potentially even
incorrectly purged from the voter rolls and unable to vote in Florida’s upcoming Federal
elections.
4.
On information and belief, Defendant received word from DHS on July 9, 2012,
that Florida would have access to the SAVE database following the entry of a Memorandum of
Agreement (“MOA”) between DOS and DHS. DOS and DHS executed an MOA on August 14,
2012, thus DOS’s resumption of the purge is imminent. The Program to Purge Alleged NonCitizens, both as initially established and as currently planned, violates Plaintiffs’ rights under
the Voting Rights Act, the National Voter Registration Act (“NVRA”), and Florida state law.
Plaintiffs are seeking a judicial declaration (1) that the Program to Purge Alleged Non-Citizens
violates Section 2 of the Voting Rights Act (“VRA”), 42 U.S.C. § 1973, because it results in
persons of color and members of language minority groups who are U.S. citizens having “less
opportunity than other members of the electorate to participate in the political process and to
elect the representatives of their choice”; (2) that the Program to Purge Alleged Non-Citizens
violates Section 8(b)(1) of the National Voter Registration Act of 1993 (“NVRA”), 42 U.S.C.
§ 1973gg-6(b)(1), and Fla. Stat. § 98.075(1), both of which provide that any State program or
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activity designed to ensure the maintenance of accurate and current voter registration rolls “shall
be uniform, nondiscriminatory, and in compliance with the Voting Rights Act of 1965”; and (3)
that the Program to Purge Alleged Non-Citizens violates Section 8(c)(2)(A) of the NVRA, 42
U.S.C. § 1973gg-6(c)(2)(A), which prohibits the systematic purging of eligible voters from the
official voter list for the State of Florida within 90 days before the date of a primary or general
election for Federal office. Plaintiffs additionally seek a preliminary and permanent injunction
ordering Defendant to discontinue the Program to Purge Alleged Non-Citizens and take the
necessary actions to remedy past harms and prevent future harms caused by the Program to
Purge Alleged Non-Citizens described in their Prayer for Relief, infra.
JURISDICTION AND VENUE
5.
This Court has jurisdiction over the subject matter of this action pursuant to 28
U.S.C. § 1331, as a case arising under the laws of the United States; under 28 U.S.C.
§ 1343(a)(3) and (4), as a case seeking equitable and other relief pursuant to an act of Congress
providing for the protection of the right to vote; and under 42 U.S.C. § 1983, as a case seeking to
enforce rights and privileges secured by the laws of the United States, and under 42 U.S.C.
§ 1973(d) and (f). In light of Florida’s history of engaging in racially discriminatory voting
practices, including the discriminatory purges of eligible voters, and taking other actions that
have compromised its citizens’ fundamental right to vote, and due to the likelihood that the State
will continue to take steps to cause irreparable harm to valid and legitimate voters by illegally
and discriminatorily purging them, it is imperative that this Court hear and consider this action.
42 U.S.C. § 1983 authorizes suits for the deprivation of a right secured by the Constitution or the
laws of the United States caused by a person acting under the color of state law.
6.
The Voting Rights Act of 1965 states that “Whenever any person has engaged or
there are reasonable grounds to believe that any person is about to engage in any act or practice
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prohibited by section 1973, 1973a, 1973b, 1973c, 1973e, 1973h, 1973i, or subsection (b) of this
section, the Attorney General may institute for the United States, or in the name of the United
States, an action for preventive relief, including an application for a temporary or permanent
injunction, restraining order, or other order[.]” 42 U.S.C. § 1973j(d). This provision has been
held to authorize suits by private parties such as Plaintiffs here.
See Allen v. State Board of
Elections, 393 U.S. 554-557, fn. 18 (1969).
7.
Section 11(b) of the NVRA, 42 U.S.C. § 1973gg-9(b), creates a private right of
action for parties who are aggrieved by a violation of the Act.
8.
This Court has jurisdiction over the pendent state law claims pursuant to 28
U.S.C. § 1367(a).
9.
Venue is proper in this District because a substantial portion of the violations and
harms complained of herein occurred, or will occur, in this District.
PARTIES
10.
1
Plaintiff KARLA VANESSA ARCIA (“Ms. Arcia”) is an individual and a
resident of Miami-Dade County, Florida. Ms. Arcia is a citizen of the United States of America
and a qualified and legally registered Florida voter. Ms. Arcia is Nicaraguan-American. As set
forth more fully below, Ms. Arcia’s rights have been, and will continue to be, adversely affected
by the Program to Purge Alleged Non-Citizens.
11.
Plaintiff MELANDE ANTOINE (“Mrs. Antoine”) is an individual and a resident
of Miami-Dade County, Florida. Mrs. Antoine is a citizen of the United States of America and a
qualified and legally registered Florida voter. Mrs. Antoine is Haitian-American. As set forth
1
Plaintiffs Arcia and Antoine may at times be referred to collectively as “Individual Plaintiffs.”
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more fully below, Mrs. Antoine’s rights have been, and will continue to be, adversely affected by
the Program to Purge Alleged Non-Citizens.
12.
2
Plaintiff VEYE YO (“VEYE YO”), is a Miami-Dade County-based civic
organization that is affiliated with the Haitian-American Grassroots Coalition. It has an office in
Miami-Dade County, Florida, and individual members throughout South Florida. VEYE YO’s
primary purposes are to empower Haitian-American citizens who are engaged in civic and
democratic endeavors, and to assist members of the Haitian-American community in identifying
and articulating issues of concern, including voting rights issues. VEYE YO is an organization
dedicated to increasing the prominence and participation of Haitian-Americans in every aspect of
the political process. To achieve this goal, VEYE YO facilitates naturalization classes, registers
voters and engages in voter education and voter mobilization efforts. Defendant’s unlawful
practices have frustrated VEYE YO’s mission as VEYE YO has been required to expend
resources to locate members who have been unlawfully purged or who received letters
questioning their eligibility to vote, to educate its members about Defendant’s unlawful practices
and to combat them at the expense of its regularly-conducted programs/activities. Moreover,
VEYE YO has individual members who have been adversely affected by the Program to Purge
Alleged Non-Citizens.
13.
Plaintiff FLORIDA IMMIGRANT COALITION, INC. (“FLIC”), is a Florida
non-profit corporation with its principal office in Miami-Dade County, Florida and member
organizations located throughout the State of Florida. Central to FLIC’s stated mission is the
integration of immigrants into the civic and cultural life of America’s communities.
2
In
Plaintiffs Veye Yo; Florida Immigrant Coalition, Inc.; National Congress for Puerto Rican
Rights; Florida New Majority, Inc.; and 1199SEIU United Healthcare Workers East may at times
be referred to collectively as “Organizational Plaintiffs.”
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conjunction with the National Partnership for New Americans, in early 2012, FLIC launched an
initiative “Florida New Americans,” aimed at providing opportunities of full integration for
Florida’s largest immigrant communities, through a citizenship program that includes citizenship
clinics and naturalization classes, all with the goal of advancing immigrant rights and creating
active citizenship among new Americans to achieve a vibrant, just, and welcoming democracy
for all. Defendant’s unlawful practices have frustrated FLIC’s mission and have forced it to
divert its scarce resources to combat Defendant’s unlawful practices at the expense of its
regularly-conducted programs/activities.
14.
Plaintiff the NATIONAL CONGRESS FOR PUERTO RICAN RIGHTS
(“NCPRR”) is a Pennsylvania non-profit corporation and membership organization founded in
1981 and dedicated to securing full equality for Puerto Ricans living in the United States through
advocacy, education and participation in the political process. NCPRR has chapters across the
United States, including Central and Southern Florida. These chapters are actively involved in
safeguarding Puerto Rican and Hispanic voting rights and ensuring the political access of Puerto
Ricans and Haitian Americans in Florida. NCPRR’s members are mainly comprised of Puerto
Ricans and other Hispanics who are concerned about civic participation, including voting rights.
NCPRR’s Florida members stand to be disenfranchised by Defendant’s unlawful practices,
which include inaccurate name matching that has already resulted in native-born United States
citizens being targeted based on improper discriminatory factors. NCPRR’s mission is frustrated
by Defendant’s unlawful voter-purge practices, and NCPRR has had to divert resources to
combat Defendant’s unlawful practices.
15.
Plaintiff FLORIDA NEW MAJORITY, INC. (“FNM”), is a Florida non-profit
corporation and membership organization with its principal office in Miami-Dade County,
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Florida.
Founded in 2009, FNM is dedicated to organizing, educating, and mobilizing
disempowered communities in Florida to win equity and fairness throughout the State. FNM’s
central focus is to expand democracy and develop the leadership of underrepresented
communities. To achieve its goal, FNM works with citizens who are engaged in civic and
democratic endeavors and assists members of its target communities in identifying and
articulating issues of concern, including voting rights issues. Defendant’s unlawful practices
have frustrated FNM’s mission. FNM has been required to expend resources (1) to locate
members who have been unlawfully purged and/or (2) to educate its members about Defendant’s
unlawful practices in order to combat them, at the expense of its regularly-conducted
programs/activities. FNM has individual members who have been affected by the Program to
Purge Alleged Non-Citizens.
16.
Plaintiff 1199SEIU UNITED HEALTHCARE WORKERS EAST (“1199SEIU”)
is a labor union that represents 25,000 healthcare workers, as well as an additional 7,400 retired
members, in the State of Florida. 1199SEIU has members in 43 out of the 67 counties in Florida,
including, but not limited to, the counties in this District, as well as Collier, Lee, Hillsborough,
and Hendry Counties. Many of 1199SEIU’s members are registered to vote or have sought to
register to vote. 1199SEIU has devoted significant time, energy and resources to making sure its
members and their families, co-workers, and community members are registered to vote, and is
committed to ensuring that every Floridian who is a United States citizen has the right to vote
and the opportunity to exercise that right. Voter registration, education, and engagement are
central to 1199SEIU’s mission, as reflected in its financial and personnel commitments and in
the Service Employee International Union’s mission statement: “We must build political power
to ensure that workers’ voices are heard at every level of government to create economic
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opportunity and foster social justice.” Some of 1199SEIU’s members, including Ms. Arcia and
Mrs. Antoine, are United States citizens who were adversely affected by the Program to Purge
Alleged Non-Citizens. Defendant’s unlawful practices frustrate 1199SEIU’s mission and require
it to expend its limited resources investigating and taking measures to counteract the Program to
Purge Alleged Non-Citizens, thus diverting resources from its planned voter registration and
education activities.
17.
Defendant KEN DETZNER is the Secretary of State for the State of Florida, and
is being sued in his official capacity. Pursuant to Fla. Stat. § 92.012, Florida’s Secretary of State
is the chief elections officer of the State and is therefore responsible for administration of state
laws that affect voting, and for ensuring that elections in Florida are conducted according to law.
Additionally, he is responsible for coordinating Florida’s responsibilities under the NVRA.
STATEMENT OF FACTS AND LAW
I.
The State of Florida’s Program to Purge Alleged Non-Citizens
18.
In a press release dated May 9, 2012 (the “Press Release”), Defendant announced
that the DOS was partnering with the Florida Department of Highway Safety and Motor Vehicles
(“DHSMV”) “to identify non-citizens who are currently on Florida’s voter rolls.” (emphasis
added). In the Press Release, Defendant asserted that the new initiative “is already proving to be
successful. DOS sent the information of more than 2,600 potential non-citizens to Florida’s 67
Supervisors of Elections for review and, if warranted, removal from Florida’s voter rolls.”
(emphasis added)
19.
According to the Press Release, the Program to Purge Alleged Non-Citizens arose
after the DOS and DHSMV began working together to develop a way to identify non-citizens in
early 2011 following “a credentialing project led by DHSMV which informed DOS of the
potential to identify non-citizens in DHSMV’s database, which requires anyone getting a new
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driver’s license or renewing a driver’s license or state ID card to submit documentary proof of
his or her legal status.”
20.
The Press Release further alleged that:
When DOS receives information from DHSMV indicating that a
registered voter may not be a United States citizen, DOS conducts
an initial investigation to determine whether the information
identifying a voter as potentially ineligible is credible and reliable.
This preliminary investigation includes a cross-reference of all
files against the Comprehensive Case Information System,
DHSMV, Department of Corrections, Florida Parole
Commission and Immigration and Customs Enforcement (ICE)
databases in order to assist supervisors of elections in the removal
process by providing the most accurate documentation available.
Additionally, DOS is actively seeking access to federal
Department of Homeland Security databases such as SAVE
(Systematic Alien Verification for Entitlements) for further
verification of immigration status.
(Emphasis added).
A.
The Initial Purge List
21.
On or about April 2, 2012, Defendant sent approximately 2,625 names, with
accompanying identifying information for persons whom Defendant claimed were potential noncitizens, to each of the Supervisors of Elections in Florida’s 67 counties including the
Supervisors of Elections for Palm Beach, Broward, Miami-Dade and Monroe Counties.
22.
The Initial Purge List included columns with each person’s name, date of birth,
voter identification number and a column titled “LAST DHSMV TRANSACTION,” purporting
to set forth each person’s last DHSMV visit.
23.
Thereafter, in mid-April of 2012, Defendant published a Webinar (the “Webinar”)
directing the Supervisors of Elections to review the file information provided on the Initial Purge
List and “conduct any additional research” (the “Additional Research”), described as follows:
Refer to whatever other sources you have to confirm identity and
potential change in legal status. You should all have access to
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DHSMV’s DAVE [the Driver and Vehicle Express System]. If
you find information credible and reliable, proceed.
(Emphasis added).
24.
The Webinar stated that persons had been placed on the Initial Purge List as a
result of positive identification that had been made by matching three out of five fields in the
DHSMV database, including first name, last name, and birth date (for example “John” and
“Smith” and a specific date of birth). This matching system was severely flawed and, as several
media reports have indicated, resulted in naturalized citizens and citizens born in the United
States ending up on the Initial Purge List, including a World War II veteran, who was born in
Brooklyn, New York, and a woman of Puerto Rican descent who was born in New York City.
25.
The Webinar indicates that the Federal REAL ID law requiring proof of
immigration status at the time of securing a driver’s license or state identification has not yet
been fully implemented in Florida, and illustrates that changes in legal immigration status,
including naturalization, may not be included in the DHSMV database.
26.
After completing the Additional Research, the Supervisors of Elections were
instructed by Defendant to carry out the procedures of Fla. Stat. § 98.075(7), for the removal of
voters from the voter rolls. This directive was consistent with information contained in the Press
Release, wherein Defendant stated as follows:
When a supervisor of elections receives information from DOS
that a registered voter is a potential non-citizen, the supervisor
must begin the statutory notice and removal process.
(Emphasis added).
27.
The Webinar contained a sample notice letter and sample voter eligibility form
that Defendant “suggested” be sent to the alleged potential non-citizens on the Initial Purge List.
The sample notice letter and sample voter eligibility form were provided only in English.
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28.
The sample notice advises the recipient that:
“The [_______] County Supervisor of Elections has received
information from the Florida Division of Elections that calls into
question your eligibility to be registered to vote. The information
obtained from the Florida Department of Highway Safety and
Motor Vehicle (see attached) which lists you as not being a U.S.
citizen. In Florida, only U.S. citizens can register and vote. See s.
97.041, Fla. Stat. (2011).
Please complete and return the enclosed ‘voter eligibility form’ to
the Supervisor of Elections’ office within thirty (30) days of
receipt.
If you believe we have made a mistake about your identity or
citizenship status, or you have acquired citizenship since your last
interaction with DHSMV, please include with the ‘voter eligibility
form’ a copy of any document that either shows that you are not
the person identified in this letter or that you are a U.S. citizen.
The following documents are examples of proof of U.S.
citizenship: U.S. Birth Certificate, Passport, U.S. Consular
Certificate of Birth, or U.S. Certificate of Naturalization. If your
name has changed or you use another name different from that on
the document, please include a copy of the document showing that
name change. You also have the right to request a hearing if you
deny that the ineligibility information is accurate.
You may mail, fax, or e-mail the voter eligibility form and
supporting documentation or you can come in person with that
form and any supporting document to the Supervisor of Elections’
office. If you fail to respond within thirty (30) days, we may
determine that you are ineligible and remove your name from
the voter registration rolls. You will then no longer be eligible
to vote. . . .
(Emphasis in original).
29.
The sample voter eligibility form required voters, “[u]nder penalties of perjury,”
to “swear or affirm” either that “the information that I am ineligible is inaccurate” and to request
a hearing or enclose a document in support of eligibility; or that “the information that I am
ineligible is accurate.” The form further warned: “It is a criminal offense to knowingly make a
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false statement in writing with the intent to mislead a public official in the performance of his or
her official duty.”
30.
The Webinar further advised Supervisors of Elections that they “have authority to
investigate and refer fraudulent registrations or illegal voting to the state attorney’s office.”
31.
As set forth more fully below, the processes and procedures used by the
Supervisors of Elections to verify the eligibility of persons on the Initial Purge List and to deal
with the individuals the Supervisors of Elections determined to be possibly ineligible varied
widely – including one county that refused to implement the Program to Purge Alleged NonCitizens because of the inaccuracy of the Initial Purge List and at least two counties that not only
implemented the Program to Purge Alleged Non-Citizens, but removed persons who did not
respond to the notice and/or did not return the voter eligibility form.
32.
The content of the letter sent by individual Florida county Supervisors of
Elections varied as well. For example, the form letter sent by Jennifer J. Edwards, Supervisor of
Elections for Collier County, dated May 11, 2012, stated that to avoid removal, the recipient
must to the bring to Supervisor Edwards’ office the enclosed voter eligibility form, along with an
original of any documentation demonstrating citizenship. The template notice letter provided in
connection with the Webinar referenced stated that a copy of any documentation could be
mailed, faxed to the relevant Supervisor’s office.
33.
The Collier County letter stated:
The Collier County Supervisor of Elections has received
information from the Florida Division of Elections regarding your
citizenship status, bringing into question your eligibility as a
registered voter.
Per Florida law, only U.S. Citizens are allowed to register to vote.
See s. 97.041, Fla. Stat. (2012). In addition, registering to vote
under fraudulent conditions or swearing a false oath are both third
degree felonies in Florida. See s. 104.011, Fla. Stat. (2012).
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If the information from the Florida Division of Elections is
inaccurate regarding your citizenship status or if your citizenship
status has recently changed, please stop by our main office with
any original documentations that demonstrates U.S. citizenship.
Do not mail these documents. You may want to call us prior to
visiting our main office. Also, you may request an administrative
hearing with the Supervisor of Elections to prove U.S. citizenship.
You must complete the attached Voter Eligibility Form and return
it to the Supervisor of Elections Office within 30 days of receipt.
Failure to submit this form within thirty (30) days will result in
the removal of your name from the voter registration rolls and
you will no longer be eligible to vote. . . .
(emphasis in original).
34.
The Initial Purge List proved to be inaccurate, obsolete, and an insufficient basis
for challenging voters. On April 30, 2012, DOS suspended the Program to Purge Alleged NonCitizens due to its inaccuracies. DOS asserted it would resume the program once it received
access to DHS’s SAVE database, claiming this would allow the State to improve the accuracy of
its Program to Purge Alleged Non-Citizens. But the program had already caused – and continues
to cause – ongoing damage to those who received letters informing them that they were
suspected to be non-citizens and needed to come forward with evidence of citizenship to prevent
them from being removed from the voter rolls, as well as to those who were actually removed
from the rolls. Defendant’s planned resumption of the program will cause further injury to
Plaintiffs and Florida voters as explained herein.
35.
Pursuant to 42 U.S.C. § 1973gg-9(b), where, as here, a State is alleged to have
committed acts in violation of the NVRA within 120 days of a Federal election, the statute
requires that the State receive notice of that violation at least 20 days prior to the commencement
of a civil lawsuit. By letter dated May 24, 2012, Plaintiffs’ counsel provided Defendant with
written ante litem notice that the Program to Purge Alleged Non-Citizens was in violation of the
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NVRA. To date, the violation has not been corrected and the damage caused by that Program to
Purge Alleged Non-Citizens has not been remedied.
B.
The Program to Purge Alleged Non-Citizens Resumes When the State Gains
Access to DHS’s SAVE Database
36.
The SAVE database is a compilation of databases that contains information on
legal immigrants who are issued green cards or visas, as well as those that become naturalized
citizens. The SAVE database includes unique numeric identifiers for those individuals , such as
a person’s alien number or number from a Certificate of Naturalization or Certificate of
Citizenship. The SAVE database was not designed for the purpose of verifying voter eligibility
and has never been used to retrospectively reexamine the eligibility of registered voters.
37.
On or around July 9, 2012, DHS granted Florida access to the SAVE database,
conditioned on the execution of an MOA outlining the appropriate use of the database. In a letter
dated July 14, 2012, Defendant Detzner indicated that upon execution of the MOA, state staff
would be trained on how to access the SAVE database in order to attempt to verify the legal
status of individuals alleged to be non-citizens. Defendant Detzner asserted that the State would
use the SAVE database to check the Initial Purge List, the results of which would be passed
along to Florida’s Supervisors of Elections for “additional actions.”
38.
On information and belief, use of the SAVE database will not remedy the
inaccuracy, non-uniformity, and resulting discriminatory impact of the Program to Purge Alleged
Non-Citizens. To the contrary, it will cause additional harm.
39.
By letter dated August 3, 2012, Plaintiffs’ counsel reiterated its written ante litem
notice that the Program to Purge Alleged Non-Citizens was in violation of the NVRA.
Additionally, Plaintiffs’ counsel explained this violation to Defendant’s counsel at both the July
23, 2012 status conference held by this Court and the parties’ Federal Rule of Civil Procedure 26
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meet and confer. To date, the violation has not been corrected. Instead, Defendant has made
clear that he intends to go ahead with the Program to Purge Alleged Non-Citizens.
40.
On August 14, 2012, Defendant Secretary of State Ken Detzner stated that Florida
would purge the state voter registry using its access to the SAVE database prior to the November
2012 general election. Defendant stated that he will rely upon the DHSMV registry to compile a
potential list of non-citizens, apparently similar to the way he initially compiled the flawed lists
of 2,625 and 180,000 individuals, and from there, will run that list against the SAVE database.
After checking the DHSMV list against the SAVE database, Defendant’s spokesman Chris Cates
stated that Florida will “continue to seek out names of non-citizens…” Florida Moves Forward
with Voter Purge After Feds Grant Access to Database, WFSU Aug. 16, 2012,
http://news.wfsu.org/post/ florida-moves-forward-voter-purge-after-feds-grant-access-database.
II.
The Program to Purge Alleged Non-Citizens Discriminates Against Florida Voters in
Violation of Section 2 of the Voting Rights Act and the National Voter Registration
Act
41.
The Program to Purge Alleged Non-Citizens, which Florida failed to pre-clear as
required by Section 5 of the VRA, 42 U.S.C. § 1973c, is discriminatory in violation of Section 2
of the VRA.
42.
Section 2 of the VRA prohibits Florida from applying or imposing any “voting
qualification or prerequisite to voting or standard, practice, or procedure” which results in denial
or abridgement of the right to vote on account of race or color, or membership in a language
minority group. 42 U.S.C. § 1973(a).
43.
Section 8(b)(1) of the NVRA likewise requires that any state program or activity
designed to ensure the maintenance of an accurate and current voter registration roll must be
“uniform, nondiscriminatory, and in compliance with the Voting Rights Act of 1965.” See 42
U.S.C. §1973gg-6(b)(1).
16
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44.
The United States House of Representatives Report on the NVRA provides that
the term “nondiscriminatory” is intended to mean that the procedure complies with the
requirements of the Voting Rights Act. House Report No. 103-9, H.R. REP. 103-9, 15-16, 1993
U.S.C.C.A.N. 105, 119-20.
45.
Congress enacted the NVRA in 1993 to “establish procedures that will increase
the number of eligible citizens who register to vote in elections for Federal office”; to “make it
possible for Federal, State, and local governments to implement [the law] in a manner that
enhances the participation of eligible citizens as voters in elections for Federal office”; to
“protect the integrity of the electoral process”; and to “ensure that accurate and current voter
registration rolls are maintained.” 42 U.S.C. § 1973gg(b). Underlying the purpose of the NVRA
is Congress’ explicit recognition that “the right of citizens of the United States to vote is a
fundamental right”; “it is the duty of the Federal, State, and local governments to promote the
exercise of that right”; and “discriminatory and unfair registration laws and procedures can have
a direct and damaging effect on voter participation in elections for Federal office and
disproportionately harm voter participation by various groups, including racial minorities.” Id.
§ 1973gg(a).
46.
Although Defendant asserts that the Program to Purge Alleged Non-Citizens does
not seek to purge eligible citizens from the voting rolls, the statistics tell a vastly different story.
Of the 2,625 persons initially targeted by Defendant, the overwhelming majority of those who
responded to inquiries are United States citizens
47.
Miami-Dade County’s experience is illustrative. Of the 1,637 persons identified
by Defendant as non-citizens residing in Miami-Dade County, 1,572 were notified by the MiamiDade County Supervisor of Elections that, if they did not prove that they were United States
17
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citizens within 30 days of the date of the notice, they would be removed from the statewide voter
registration system.3 Of the 1,572 persons who were sent the notice and voter eligibility form in
Miami-Dade, a total of 562 responded. Of the 562 who responded, 514 voters have provided
proof of citizenship and 35 voters responded denying ineligibility but did not provide proof.
Only 14 voters responded admitting ineligibility. Thus, the overwhelming majority of those who
responded, 549 out of the 562, or 98%, are United States citizens and lawful, eligible voters.
48.
Like those who did respond to the letters, there is a great likelihood that many of
those who have not responded are United States citizens and lawful, eligible voters, as
demonstrated by the experiences of the individual Plaintiffs. For example, Plaintiff Arcia is a
United States citizen whose name appears on the Initial Purge List and who, based on the
procedures created by Defendant, was required to be removed from the statewide voter
registration system. This is because she did not timely respond to the notice or return the voter
eligibility form because she never received them. Thus, if Defendant’s instructions to the
Supervisors of Elections as set forth in the Webinar are carried out, Ms. Arcia will be removed
from the statewide voter registration system and disenfranchised.
49.
Plaintiff Antoine, on the other hand, did respond to the Notice from the Miami-
Dade County Supervisor of Elections but should never have been on the Initial Purge List in the
first place because she is a United States citizen who is eligible and duly registered to vote.
50.
Additional unnamed members of Organizational Plaintiffs, who are also United
States citizens, received notification from their county Supervisors of Elections of their alleged
ineligibility to vote and did not respond. On information and belief, these individuals may have
3
The Supervisor decided not to mail a notice to 65 persons “since they were duplicate names,
citizens, deceased, or registered in another county,” according to the Miami-Dade Supervisor of
Elections’ Office.
18
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failed to respond due to a sense of intimidation or due to the effort required to provide proof of
citizenship. On further information and belief, many of these individuals likely believe that they
cannot vote in the upcoming general election. Whether they have actually been removed from
the rolls, these individuals have thus been harmed by DOS’s Program to Purge Alleged NonCitizens.
51.
The Defendant’s Program to Purge Alleged Non-Citizens will discriminate
against racial and language minorities in Florida, who were disproportionately over-represented
on the Initial Purge List. Florida’s voter registration form includes race identification, and the
state’s racial identification data of the persons on the Initial Purge List clearly demonstrates the
disparate impact of the Program to Purge Alleged Non-Citizens: the Initial Purge List itself
shows 61% of the persons on the List are Hispanic, 16% of the persons on the List are Black,
16% of the persons on the List are White, and 5% of the persons on the List are Asian. In sum,
82% of those on the Initial Purge List are people of color. In contrast, just 30% of registered
voters in Florida are people of color (14% Hispanic, 14% Black, 2% Asian). These numbers are
glaringly disproportionate.
52.
Because county Supervisors of Elections were instructed, in the Webinar, to
review the immigration status of persons on the Initial Purge List, as set forth in the DHSMV
records, the Program to Purge Alleged Non-Citizens specifically targets naturalized citizens (as
compared to persons born in the United States), the majority of whom are people of color
(including language minorities) whose rights are protected under Section 2 of the VRA.
53.
Many persons of color and members of language minority groups in Florida have
suffered and continue to suffer discrimination and bear the effects of that discrimination today,
including a history of discrimination and neglect in voting-related activities.
19
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54.
In conducting the Program to Purge Alleged Non-Citizens, Defendant has failed
to ensure that all persons of color and members of language minority groups, particularly
Haitian-Americans, have an equal opportunity to participate in the political process and to elect
the representatives of their choice.
55.
Plaintiffs are concerned about the curtailment of their communities’ voting rights
as a result of the Program to Purge Alleged Non-Citizens.
56.
On information and belief, use of the SAVE database will not remedy this injury.
The SAVE database is not a universal citizen database; many individuals, including natural-born
citizens, are not included in SAVE. Defendant has not identified how many of the individuals on
his Initial Purge List, or how many of the individuals removed from the voter rolls, can actually
be processed through the SAVE database with the information (including alien registration
numbers and supporting documentation) that is, on information and belief, required by DHS
procedures.
Moreover, the use of the SAVE database as a final step cannot mitigate the
discriminatory effects of Florida’s program. To the extent that the Defendant relies upon the
initial discriminatory lists of alleged non-citizens derived from the DHSMV registry, any use of
the SAVE database will not alter the flaws of that list: the vast majority of individuals filtered
through SAVE and ultimately required to affirmatively prove citizenship will be minorities.
57.
On further information and belief, for the reasons articulated in the foregoing
paragraph, use of the SAVE database for the purpose of removing voters from the rolls,
particularly this close to the November general election, will cause additional injury to
Organizational Plaintiffs, the individual registered voters they serve, and those similarly situated.
To utilize the SAVE database in a voter removal program, Florida must first prepare a list of
alleged noncitizen registered voters. On information and belief, to the extent such a list is
20
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prepared by matching names of registered voters with information contained in the DHSMV
database or on juror questionnaires, the program will inevitably run afoul of the NVRA’s
requirement that voter removal programs be “uniform, nondiscriminatory, and in compliance
with the Voting Rights Act,” 42 U.S.C. § 1973gg-6(b)(1), as well as Section 2 of the Voting
Rights Act, id. § 1973. Should Florida instead seek to develop a preliminary list of alleged
noncitizens to compare with the SAVE database through other means, on information and belief,
it is not possible that any such action, taken this close to the November election, could be
completed in a nondiscriminatory fashion, with the level of accuracy and reasonableness
required by the NVRA.
III.
Implementation of the Program to Purge Alleged Non-Citizens Lacks Uniformity in
Violation of the NVRA and Florida Law
58.
Section 8(b)(1) of the NVRA requires that any systematic program to maintain a
state’s voter rolls must be done with uniformity. See 42 U.S.C. § 1973gg-6(b)(1).
59.
The term “uniform” is intended to mean “that any purge program or activity
must be applied to an entire jurisdiction.” House Report No. 103-9, H. R. REP. 103-9, 15-16,
1993 U.S.C.C.A.N. 105, 119-20 (emphasis added).
60.
Florida’s procedures for registration list maintenance programs and activities are
set forth in Chapter 98 of the Florida Statutes. Section 98.075(1), Florida Statutes imposes on
DOS and Defendant the duty to “protect the integrity of the electoral process by ensuring the
maintenance of accurate and current voter registration records” and also provides that list
maintenance activities undertaken by the DOS and Defendant must be “uniform,
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nondiscriminatory, and in compliance with the Voting Rights Act of 1965, the National Voter
4
Registration Act of 1993, and the Help America Vote Act of 2002.” See Fla. Stat. § 98.075(1).
61.
Moreover, Section 98.075(1) states that the DOS “may adopt by rule uniform
standards and procedures to interpret and administer this section.” See Fla. Stat. § 98.075(1)
(emphasis added).
62.
The Program to Purge Alleged Non-Citizens is not uniform in either design or
implementation. First, as set forth above, of the approximately 2,625 persons on the Initial Purge
List, 1,637 were identified by Defendant as being from Miami-Dade County. This means that
61% of the persons on the Purge List are from one county – Miami-Dade.
63.
Moreover, the implementation of the Program to Purge Alleged Non-Citizens has
varied widely by county.
For example, the Palm Beach County Supervisor of Elections
completely refused to implement the Program to Purge Alleged Non-Citizens. Other counties,
including Broward and Monroe, have sent out notices on voter eligibility but have indicated that
they likely would not remove persons who did not respond.
Similarly, the Supervisor of
Elections of Miami-Dade County, for her part, sent out letters to those on the Initial Purge List
but informed Defendant that she “has chosen to exercise her discretion under state law and will
not remove any voters (other than those whose ineligibility has been demonstrated by the
evidence) until the State has the opportunity to review the remaining voters against current,
credible and reliable data sources.”
Collier and Lee Counties have fully implemented the
Program to Purge Alleged Non-Citizens and have, in fact, removed from the statewide voter
4
Section 98.065(1), Florida statutes, imposes the same requirement on the Supervisors of
Elections. Moreover, Section 98.075(7) sets up procedures for removal to which the Supervisors
of Elections must adhere “prior to the removal of a registered voter’s name from the statewide
voter registration system.” See Fla. Stat. § 98.075(7).
22
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registration system voters who failed to respond to the notices and did not return the voter
eligibility forms.
64.
Further, the Program to Purge Alleged Non-Citizens is not uniform because the
DHSMV database upon which it relies is an outdated, inaccurate, and unreliable source of
information about citizenship because it does not capture or verify the use of citizenship
information to administer driver licenses.
65.
On information and belief, the Program to Purge Alleged Non-Citizens
disproportionately impacts newly-naturalized citizens as well as Hispanic, Black, AsianAmerican, and other minority voters.
Use of the SAVE database will not remedy this
disproportionate impact, but will rather cause further injury to eligible Florida voters for the
reasons described above.
IV.
Implementation of the Program to Purge Alleged Non-Citizens Within 90 Days
Prior to 2012 Federal Election Dates Violates the NVRA.
66.
Section 8(c)(2)(A) of the NVRA requires that the State of Florida “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 list of eligible voters.” 42 U.S.C. § 1973gg-6(c)(2)(A).
67.
The prohibition on systematic purges within 90 days of an election is central to
the NVRA’s goals of protecting against possible disenfranchisement of eligible voters while
ensuring accurate and current voter registration rolls. The House Report on the NVRA revised
concerns about programs that systematically remove ineligible voters from the official list of
eligible voters: “The Committee is concerned that such programs can be abused and may
result in the elimination of names of voters from the rolls solely due to their failure to respond
to a mailing.
Abuses may be found in the design of a program as well as in its
23
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implementation.” House Report No. 103-9, H.R. REP. 103-9, 15-16, 1993 U.S.C.C.A.N. 105,
119-20 (emphasis added). It is
difficult for voters to identify and correct the errors of a
systematic purge in the short 90 day time frame. Moreover, a system-wide purge generates
system-wide confusion that renders it less likely that election officials will have the time
necessary to correct erroneous removals. Section 8(c)(2)(B) prohibits states from conducting
within the 90 day period “any program the purpose of which is to systematically remove the
names of ineligible voters…” The unequivocal language of this provision bans any and every
systematic program other than the removals specifically exempted.
The NVRA establishes
clear, enumerated exceptions to the 90-day prohibition. A state may only remove from the list
registered persons who fall into one of four categories: those who request to be removed, those
ineligible because of criminal conviction, those ineligible because of mental incapacity, and
those who have died. 42 U.S.C. § 1973gg-(6)(c)(2)(B). The NVRA accomplishes this by
placing outside the prohibition’s ambit the categories of removals enumerated in 42 U.S.C.
§ 1973gg-(6)(c)(3)(A) and (B) or (4)(A) and (B).
68.
Importantly, the removal of alleged non-citizen voters is not one of the
enumerated exceptions to the NVRA’s 90-day prohibition. During the debates on the NVRA,
Senator Mitch McConnell proposed an amendment that would have expanded the exceptions to
the proscription against removal of voters from the rolls during the 90-day period. See 139
Cong. Rec. 2960 (Mar. 16, 1993) (Amendment No. 100); 139 Cong. Rec. 2970 (Amendment No.
141), and 139 Cong. Rec. 3066 (Mar. 17, 1993) (Amendment No. 169). Cf. 42 U.S.C. §1973gg6(a)(3) (2010). That amendment was not adopted.
69.
Such legislative history supports the previously delineated expressio unius
argument that, “[w]here Congress explicitly enumerates certain exceptions to a general
24
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prohibition, additional exceptions are not to be implied.” Andrus v. Glover Constr. Co., 446 U.S.
608, 616-17 (1980).
70.
The primary election in Florida was held on August 14, 2012. Ninety (90) days
before the August 14 primary election was May 16, 2012. The Federal general election in
Florida, as elsewhere, is November 6, 2012. Ninety (90) days before the November 6 election
was August 8, 2012.
71.
On information and belief, the majority of voters who were purged based on the
Initial Purge List were removed after May 16, 2012, and thus were purged within 90 days of the
primary election. On information and belief, the majority of voters on the Initial Purge List who
were notified of their purported need to prove they were citizens were instructed that their
deadline to return the voter eligibility forms was after May 16, 2012. Moreover, assuming that
Defendant followed the requirements of Section 48.075(7), Florida Statutes, no voter on the
Initial Purge List could possibly have been removed in accordance with those procedures until
after May 16, 2012. But by that time, had these procedures been followed, such removal would
have necessarily violated the NVRA because it would had to have taken place after May 16,
2012. Defendant’s plan to continue the Program to Purge Alleged Non-Citizens will result in
systematic removal of additional voters within 90 days of the general election. At this point,
there are fewer than 90 days before the November 6, 2012 Federal election. Accordingly, any
notification sent to voters after May 16, 2012, including future notices based on the SAVE
databases, stating that the State has flagged them as potentially ineligible based on the SAVE
database will, at this point, violate the NVRA.
72.
Defendant has not disputed the timelines set forth above. However, despite the
NVRA’s ban on systematic purges within the 90 days prior to an election, as set forth above,
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Defendant instructed the Supervisors of Elections to continue to carry out the Program to Purge
Alleged Non-Citizens, as it was initially construed, by reviewing the Initial Purge List within 90
days of the primary, conducting Additional Research, sending out notices and voter eligibility
forms, and removing voters under Fla. Stat. § 98.075(7).
Similarly, Defendant has stated
publicly that he plans a systematic purge targeting additional voters based on use of the SAVE
database within 90 days of the general election.
73.
Defendant has sought to excuse these actions by creating a new exception to
Section 8(c)(2)(A) that allows removals of alleged noncitizens within the 90 day period.
Defendant is wrong.
As explained above, the provision prohibits “any program …to
systematically remove” ineligible voters from the roll. Removal of alleged non-citizen voters is
not an enumerated exception to the NVRA’s 90-day provision.
COUNT I
DECLARATORY JUDGMENT PURSUANT TO 28 U.S.C. § 2201
SECTION 2 OF THE VOTING RIGHTS ACT, 42 U.S.C. § 1973
74.
Plaintiffs incorporate Paragraphs 1 through 73 above.
75.
This is an action for declaratory relief pursuant to 28 U.S.C. § 2201 (the
“Declaratory Judgment Act”). Plaintiffs seek a declaration that the Program to Purge Alleged
Non-Citizens violates Section 2, of the Voting Rights Act, 42 U.S.C. § 1973, which prohibits
Defendant from imposing any “voting qualification or prerequisite to voting or standard,
practice, or procedure” that results in a denial or abridgement of the rights of United States
citizens, namely Hispanics and Blacks, to vote. 42 U.S.C. § 1973.
76.
There is a bona fide, actual, present practical need for the requested declaration.
The Program to Purge Alleged Non-Citizens has resulted – and will result – in United States
citizens, namely persons of color or members of language minority groups,
26
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opportunity than other members of the electorate to participate in the political process and to
elect the representatives of their choice.” 42 U.S.C. § 1973.
77.
Defendant has, or reasonably may have, actual, present, adverse and antagonistic
interests related to the ongoing effects of his past actions, as well as his planned additional
actions. He has repeatedly advised of its intent to continue the Program to Purge Alleged NonCitizens, despite the admitted flaws in his previous purge efforts. Moreover, Defendant has to
date failed to take, or even agreed to take, any meaningful steps to adequately remedy his past
actions.
COUNT II
DECLARATORY JUDGMENT PURSUANT
TO 28 U.S.C. § 2201 SECTION 8(C)(2)(A) OF THE
NVRA, 42 U.S.C. § 1973GG-6(B)(1) AND FLA. STAT. § 98.075(1)
78.
Plaintiffs incorporate Paragraphs 1 through 77 above.
79.
The Program to Purge Alleged Non-Citizens is inaccurate and unreliable, and
therefore violates Section 8(b)(1) of the NVRA as well as Section 98.075(1), Florida Statutes.
80.
This is an action for declaratory relief pursuant to the Declaratory Judgment Act.
Plaintiffs seek a declaration that the Program to Purge Alleged Non-Citizens violates Section
8(b)(1) of the NVRA, 42 U.S.C. § 1973, 42 U.S.C. § 1973gg-6(b)(1) and Section 98.075(1),
Florida Statutes, with the latter two provisions both providing that any State program or activity
designed to ensure the maintenance of accurate and current voter registration rolls “shall be
uniform, nondiscriminatory, and in compliance with the Voting Rights Act of 1965[.]”
81.
There is a bona fide, actual, present practical need for the requested declaratory
relief. The Program to Purge Alleged Non-Citizens is not uniform, has been discriminatory
applied against minority voters, namely persons of color and language minority persons, and has
disproportionately impacted lawful, eligible minority voters, including Plaintiffs herein.
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Moreover, the Program to Purge Alleged Non-Citizens disenfranchises the minority communities
that Organizational Plaintiffs serve and thus, frustrates the missions of Organizational Plaintiffs
and forces them to divert their resources to combat the Program to Purge Alleged Non-Citizens.
82.
Defendant and his employees and agents lack adequate rules and procedures
governing the conduct of programs and activities to maintain an accurate and current voter
registration roll that are uniform, nondiscriminatory, and in compliance with the Voting Rights
Act and the NVRA.
83.
Defendant and his employees and agents have failed to enforce substantive
standards or provide adequate training to ensure that agents, employees and representatives of
DOS make a reasonable effort to conduct programs and activities to maintain an accurate and
current voter registration roll that are uniform, nondiscriminatory, and in compliance with the
Voting Rights Act. After they temporarily suspended the Program to Purge Alleged NonCitizens, for example, they failed to instruct the Supervisors of Elections to take any steps to
correct or offset the effects of the illegal actions that had already been taken under that program.
84.
Defendant has, or reasonably may have, actual, present, adverse and antagonistic
interests related to the ongoing effects of his past actions, as well as his planned additional
actions. He has repeatedly advised of its intent to continue the Program to Purge Alleged NonCitizens. Moreover, Defendant has to date failed to take, or even agreed to take, any meaningful
steps to adequately remedy his past actions.
85.
Unless and until ordered to cease doing so by this Court, Defendant and his
employees or agents will continue to fail to conduct adequate programs and activities to maintain
an accurate and current voter registration roll that are uniform and non-discriminatory in
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accordance with Section 8(b) of the NVRA, 42 U.S.C. § 1973, 42 U.S.C. § 1973gg-6(b), and
Section 98.075(1), Florida Statutes.
COUNT III
DECLARATORY JUDGMENT PURSUANT TO 28 U.S.C. § 2201
SECTION 8(C)(2)(A) OF THE NVRA, 42 U.S.C. § 1973GG-6(C)(2)(A)
86.
Plaintiffs incorporate Paragraphs 1 through 85 above.
87.
This is an action for declaratory relief pursuant to the Declaratory Judgment Act.
Plaintiffs seek a declaration that the Program to Purge Alleged Non-Citizens violates Section
8(c)(2)(A) of the NVRA, 42 U.S.C. § 1973gg-6(c)(2)(A), which bars systematic purges within
90 days of an election, except in limited and specific circumstances not found here.
88.
There is a bona fide, actual, present practical need for the requested declaration.
The Program to Purge Alleged Non-Citizens deprives eligible voters, including Individual
Plaintiffs, of their rights under the NVRA. The Program to Purge Alleged Non-Citizens also
disenfranchises the communities that Organizational Plaintiffs serve and thus frustrates the
missions of Organizational Plaintiffs.
89.
Defendant has, or reasonably may have actual, present, adverse, and antagonistic
interests related to the ongoing effects of his past actions, as well as his planned additional
actions. He has repeatedly confirmed his intent to continue the Program to Purge Alleged NonCitizens. Moreover, Defendant has to date failed to take, or even agreed to take, any meaningful
steps to adequately remedy his past actions.
COUNT IV
INJUNCTIVE RELIEF
90.
Plaintiffs incorporate Paragraphs 1 through 89 above.
29
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91.
42 U.S.C. § 1983 provides for equitable relief for the deprivation of a right
secured by the Constitution or the laws of the United States caused by a person acting under the
color of state law. Additionally, the Voting Rights Act authorizes Plaintiffs to seek injunctive
relief to prevent violations of Section 2 of the Voting Rights Act. See 42 U.S.C. § 1973j(d).
Section 11(b)(2) of the NVRA, 42 U.S.C. § 1973gg-9(b)(2), provides for injunctive relief to
redress a violation of the NVRA.
92.
Plaintiffs have a strong likelihood of suffering irreparable and substantial harm as
a result of the Program to Purge Alleged Non-Citizens. Unless this Court requires Defendant to
undertake certain steps to offset the continuing effects of the actions that Defendant already took
as part of the Program to Purge Alleged Non-Citizens, lawful, eligible voters will remain
removed from the voter registration rolls and disenfranchised in future elections, others will
remain under the misimpression that they have been removed from the rolls, and members of
Organizational Plaintiffs will be denied their fundamental right to vote. Specifically, Defendants
should be ordered to place purged voters back on the rolls, to instruct voters who received letters
that they remain eligible to vote, and to conduct training to ensure compliance with Federal and
Florida law with respect to removal of voters from the rolls. In addition, unless this Court
enjoins Defendant’s planned systematic removal of additional voters, more eligible voters will be
removed from the rolls between now and the November election.
93.
The public interest weighs strongly in favor of letting every lawful, eligible voter
exercise the right to vote.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs request that the Court enter a judgment declaring that:
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(a)
the Program to Purge Alleged Non-Citizens violates Section 2, of the Voting
Rights Act, 42 U.S.C. § 1973, because it has resulted, and will result, in
United States citizens, namely persons of color and language minority persons
having “less opportunity than other members of the electorate to participate in
the political process and to elect the representatives of their choice”;
(b)
the Program to Purge Alleged Non-Citizens violates Section 8(b)(1) of the
NVRA, 42 U.S.C. 1973gg-6(b) and Section 98.075(1), Florida Statutes, both
of which provide that any State program or activity designed to ensure the
maintenance of accurate and current voter registration “shall be uniform,
nondiscriminatory, and in compliance with the Voting Rights Act of 1965[.]”;
(c)
the Program to Purge Alleged Non-Citizens violates Section 8(c)(2)(A) of the
NVRA, 42 U.S.C. § 1973gg-6(c)(2)(A), which bars systematic purges within
90 days of an election, except in limited and specific circumstances not found
here;
WHEREFORE, Plaintiffs request that the Court enter a preliminary and a permanent
injunction ordering Defendant to:
(a)
discontinue the Program to Purge Alleged Non-Citizens, specifically including
plans to remove additional voters based on use of the SAVE database;
(b)
instruct all Supervisors of Elections to restore to the rolls all voters who have
been removed from the rolls as a result of the failure to respond to the notice
letter or to return a voter eligibility form;
(c)
review the status of all voters who were removed ostensibly because they
admitted non-citizenship, including providing a letter in both English and
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Spanish (and in compliance with other language requirements) indicating that
the person was removed because the person reported that she was not a citizen
and allowing those persons the opportunity to correct and restore their
registration if they were removed in error;
(d)
release a statement indicating that the Initial Purge List, much like the 180,000person list from which it derived, was obsolete and inaccurate, and should not
be used for any purpose. The statement should further indicate that the Initial
Purge List, much like the 180,000-person list from which it derived, may not
be used to challenge any voters in private challenges at the polls or otherwise,
that a frivolous challenge to a voter’s eligibility based on this flawed list may
give rise to criminal penalties, and that inclusion on these lists will not require
anyone to cast a provisional, rather than a regular, ballot;
(e)
instruct all Supervisors of Elections to send new notice letters, in English and
Spanish (and in compliance with any other language requirements), to all
voters who have been removed from and subsequently restored to the rolls,
advising them of their reinstatement;
(f)
instruct all Supervisors of Elections to send a new notice letter, in English and
Spanish (and in compliance with any other language requirements), to all
persons on the Initial Purge List who were not removed, advising them that
they remain registered to vote, explaining their rights as voters, and assuring
them that they will not be disenfranchised based on failure to provide
documentary proof of United States citizenship;
32
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(g)
train Supervisors of Elections and their staff regarding methods to maintain
voter lists in a manner that is uniform and non-discriminatory in accordance
with Section 8(b)(1) of the NVRA, 42 U.S.C. § 1973gg-6(b) and Section
98.075(1) of the Florida Statutes so as to maintain accurate and current voter
registration rolls in a non-discriminatory manner;
(h)
cease enforcing standards, practices, procedures and/or programs that deny
persons of color and members of language minority groups who are United
States citizens an opportunity to participate effectively in the political process
on an equal basis with other members of the electorate;
(i)
file with the Court, within five days of the issuance of an injunction, a list of
voters removed pursuant to the Purge, and a report stating which voters have
been reinstated and providing confirmation of the steps that Defendant is
taking to comply with the injunction.
WHEREFORE, Plaintiffs request that the Court enter a judgment for Plaintiffs that
includes reasonable attorneys’ fees including litigation expenses and costs pursuant to 42 U.S.C.
§ 1988 and 42 U.S.C. § 1973gg-9(c); and for all other relief that the Court deems just and
proper.
Dated: August 22, 2012
Respectfully submitted,
By:
33
/s/ John De Leon
John De Leon
Florida Bar No. 650390
LAW OFFICES OF CHAVEZ & DE LEON
5975 Sunset Drive, Suite 605
South Miami, FL 33143
(305) 740-5347
(305) 740-5348 (fax)
[email protected]
Case 1:12-cv-22282-WJZ Document 43 Entered on FLSD Docket 08/22/2012 Page 34 of 35
Of Counsel:
Catherine M. Flanagan
Michelle Kanter Cohen
PROJECT VOTE
1350 I St., N.W., Suite 1250
Washington, DC 20005
(202) 546-4173
(202) 629-3754 (fax)
[email protected]
[email protected]
Lorelie S. Masters
Marc A. Goldman
JENNER & BLOCK, LLP
1099 New York Ave., N.W.
Suite 900
Washington, DC 20001-4412
(202) 639-6000
(202) 639-6066 (fax)
[email protected]
[email protected]
Ben Hovland
FAIR ELECTIONS LEGAL NETWORK
1825 K Street NW, Suite 450
Washington, D.C. 20006
(202) 248-5346
(202) 331-1663 (fax)
[email protected]
J. Gerald Hebert
Campaign Legal Center
215 E Street NE
Washington, DC 20002
(202) 736-2200
[email protected]
Katherine Roberson-Young, Esq.
Florida Bar No. 038169
3000 Biscayne Blvd., Suite 212
Miami, Florida 33137
(305) 571-4082
(305) 571-1396 (fax)
[email protected]
Juan Cartagena
Jose Perez, Esq.
Diana Sen, Esq.
LATINOJUSTICE PRLDEF
99 Hudson Street, 14th Floor
New York, NY 10013-2815
(212) 219-3360
(212) 431-4276 (fax)
[email protected]
[email protected]
[email protected]
Penda Hair
Katherine Culliton-Gonzalez, Esq.
Uzoma Nkownta, Esq.
ADVANCEMENT PROJECT
1220 L Street, N.W., Suite 850
Washington, D.C. 20005
(202) 728-9557
(202) 728-9558 (fax)
[email protected]
[email protected]
[email protected]
Attorneys for Plaintiffs
34
Case 1:12-cv-22282-WJZ Document 43 Entered on FLSD Docket 08/22/2012 Page 35 of 35
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that, on August 22, 2012, a true and correct copy of the
foregoing was served on all counsel of record via CM/ECF.
Dated: August 22, 2012
By:
35
/s/ John De Leon_____
John De Leon
Case 1:12-cv-22282-WJZ Document 43-1 Entered on FLSD Docket 08/22/2012 Page 1 of 24
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI CIVIL DIVISION
Case No. 1:12-cv-22282-WJZ
Honorable Judge William J. Zloch
KARLA VANESSA ARCIA, an individual,
MELANDE ANTOINE, an individual, VEYE
YO, a civic organization based in MiamiDade County, FLORIDA IMMIGRANT
COALITION, INC., a Florida non-profit
corporation, NATIONAL CONGRESS FOR
PUERTO RICAN RIGHTS, a Pennsylvania
non-profit corporation, FLORIDA NEW
MAJORITY, INC., a Florida non-profit
corporation, and 1199SEIU UNITED
HEALTHCARE WORKERS EAST, a Labor
Union,
Plaintiffs,
v.
KEN DETZNER, in his official capacity as
Florida Secretary of State,
Defendant.
PLAINTIFFS’ MOTION FOR LEAVE TO AMEND THEIR COMPLAINT
As explained further in the attached Memorandum of Law in Support of Plaintiffs’
Motion for Leave to Amend Their Complaint, Plaintiffs respectfully submit that justice requires
that Plaintiffs be permitted leave to amend their Complaint pursuant to Federal Rule of Civil
Procedure 15(a)(2) and in accordance with the Schedule set forth by this court for amendments
to the complaint (D.E. 36). Plaintiffs’ proposed Amended Complaint is attached to this motion
as Exhibit A.
Case 1:12-cv-22282-WJZ Document 43-1 Entered on FLSD Docket 08/22/2012 Page 2 of 24
Plaintiffs have conferred with the Defendant regarding the proposal to amend the
complaint. Defendant neither opposes nor consents to Plaintiffs’ motion at this time but indicated
his plan to file a response after the motion and proposed Amended Complaint is filed.
Dated: August 22, 2012
Respectfully submitted,
By:
/s/ John De Leon
John De Leon
Florida Bar No. 650390
LAW OFFICES OF CHAVEZ & DE LEON
5975 Sunset Drive, Suite 605
South Miami, FL 33143
(305) 740-5347
(305) 740-5348 (fax)
[email protected]
Of Counsel:
Catherine M. Flanagan
Michelle Kanter Cohen
PROJECT VOTE
1350 I St., N.W., Suite 1250
Washington, DC 20005
(202) 546-4173
(202) 629-3754 (fax)
[email protected]
[email protected]
Lorelie S. Masters
Marc A. Goldman
JENNER & BLOCK, LLP
1099 New York Ave., N.W.
Suite 900
Washington, DC 20001-4412
(202) 639-6000
(202) 639-6066 (fax)
[email protected]
[email protected]
Ben Hovland
FAIR ELECTIONS LEGAL NETWORK
1825 K Street NW, Suite 450
Washington, D.C. 20006
(202) 248-5346
(202) 331-1663 (fax)
[email protected]
J. Gerald Hebert
Campaign Legal Center
215 E Street NE
Washington, DC 20002
(202) 736-2200
[email protected]
Katherine Roberson-Young
Florida Bar No. 038169
3000 Biscayne Blvd., Suite 212
Miami, Florida 33137
Juan Cartagena
Jose Perez
Diana Sen
1
Case 1:12-cv-22282-WJZ Document 43-1 Entered on FLSD Docket 08/22/2012 Page 3 of 24
(305) 571-4082
(305) 571-1396 (fax)
[email protected]
LATINOJUSTICE PRLDEF
99 Hudson Street, 14th Floor
New York, NY 10013-2815
(212) 219-3360
(212) 431-4276 (fax)
[email protected]
[email protected]
[email protected]
Penda Hair
Katherine Culliton-Gonzalez
Uzoma Nkwonta
ADVANCEMENT PROJECT
1220 L Street, N.W., Suite 850
Washington, D.C. 20005
(202) 728-9557
(202) 728-9558 (fax)
[email protected]
[email protected]
[email protected]
Attorneys for Plaintiffs
2
Case 1:12-cv-22282-WJZ Document 43-1 Entered on FLSD Docket 08/22/2012 Page 4 of 24
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that, on August 22, 2012, a true and correct copy of the
foregoing and attachments thereto was served on all counsel of record via CM/ECF.
Dated: August 22, 2012
By:
3
/s/ John De Leon_____
John De Leon
Case 1:12-cv-22282-WJZ Document 43-1 Entered on FLSD Docket 08/22/2012 Page 5 of 24
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI CIVIL DIVISION
Case No. 1:12-cv-22282-WJZ
Honorable Judge William J. Zloch
KARLA VANESSA ARCIA, an individual,
MELANDE ANTOINE, an individual, VEYE
YO, a civic organization based in MiamiDade County, FLORIDA IMMIGRANT
COALITION, INC., a Florida non-profit
corporation, NATIONAL CONGRESS FOR
PUERTO RICAN RIGHTS, a Pennsylvania
non-profit corporation, FLORIDA NEW
MAJORITY, INC., a Florida non-profit
corporation, and 1199SEIU UNITED
HEALTHCARE WORKERS EAST, a Labor
Union,
Plaintiffs,
v.
KEN DETZNER, in his official capacity as
Florida Secretary of State,
Defendant.
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR LEAVE TO
FILE FIRST AMENDED COMPLAINT
4
Case 1:12-cv-22282-WJZ Document 43-1 Entered on FLSD Docket 08/22/2012 Page 6 of 24
INTRODUCTION
Plaintiffs seek leave to file an Amended Complaint in light of recent developments in the
Secretary of State’s (“the Secretary”) ongoing efforts to remove thousands of registered voters
from the state’s voter rolls before the general election in November, 2012. Plaintiffs’ motion is
within the time set by this court in its Scheduling Order for amendments to the complaint. (D.E.
36). The proposed Amended Complaint is attached to this motion as Attachment A.
On June 19, 2012, Plaintiffs filed their original Complaint and described, in detail, a
program initiated by the Secretary to “identify non-citizens who are currently on Florida’s voter
rolls.” Compl. ¶ 14.
Plaintiffs alleged that the Secretary’s actions violated the National Voter
Registration Act (NVRA), along with section 2 of the Voting Rights Act. Id. ¶¶ 1-3.
While the Secretary maintains—in this case and others—that he has voluntarily
abandoned the program that formed the basis of Plaintiffs’ Complaint, see, e.g., Sec’y of State’s
Rule 26(f) Conference Report ¶ A (“Sec’y Rule 26(f) Report”), he took no steps to reinstate or
reassure the registered voters who were originally identified as non-citizens. Instead, he sought
access to the Department of Homeland Security’s (DHS) Systematic Alien Verification for
Entitlements Database (SAVE) to cross-check his list of potential non-citizens and to continue
and finish the purge. See June 19, 2012 Ltr. from Gov. R. Scott and Sec’y K. Detzner to Sec’y J.
Napolitano (Exh. 1). Moreover, the Secretary maintained that Plaintiffs’ initial Complaint did
not encompass those who received letters questioning their eligibility but have not yet been
removed from the voter rolls.
Plaintiffs have reason to believe that the Secretary has received access to the SAVE
database and will promptly continue his purge of registered voters. See Sec’y Rule 26(f) Report
¶ A (D.E. 35). As a result, Plaintiffs issued a new notice letter, in compliance with the NVRA,
1
Case 1:12-cv-22282-WJZ Document 43-1 Entered on FLSD Docket 08/22/2012 Page 7 of 24
and have sought to wait the 20 days set forth in the NVRA, see 42 U.S.C. 1973-gg9(b), before
amending their Complaint. They now seek to amend their Complaint to clarify: (1) that their
claims regarding the Secretary’s past actions encompass those who received letters questioning
their eligibility but who have not yet been purged, and (2) that their claims encompass the
Secretary’s plan to use the SAVE database to extend the purge.
ARGUMENT
Federal Rule of Civil Procedure 15(a)(2) provides that a party may amend its pleadings
by leave of court or by written consent of the adverse party, and the court “should freely give
leave” to amend a complaint “when justice so requires.” In particular, “timely motions to amend
are held to a very liberal standard.” Smith v. Trans-Siberian Orchestra, 728 F. Supp. 2d 1315,
1318 (M.D. Fla. 2010).
This court has recognized that Rule 15(a)’s mandate severely
circumscribes its discretion to deny timely motions for leave to amend. See Yamashita v. Merck
& Co., Inc., 2012 WL 488030, at *1 (S.D. Fla. Feb. 14, 2012); Foman v. Davis, 371 U.S. 178
(1962).
Plaintiffs seek leave to amend within the schedule for amendment set by the court and
based on new factual developments. Indeed, the Amended Complaint simply updates the factual
circumstances surrounding the voter purges with information provided largely by the Secretary
within the past few weeks. See Report of Rule 26 Initial Conference at 9, U.S. v. Florida, No.
4:12-cv-00285 (N.D. Fla. Aug. 1, 2012) (stating that the Secretary expected to receive access to
the SAVE database by August 10, 2012). Because the amendment is timely sought and would
serve the court and parties’ interests in efficiently addressing Plaintiffs’ claims regarding the
purge efforts, this is precisely the type of circumstance where the court should freely grant leave
2
Case 1:12-cv-22282-WJZ Document 43-1 Entered on FLSD Docket 08/22/2012 Page 8 of 24
to amend in the interests of justice. See Fed. R. Civ. P. 15(a)(2); Smith v. Trans-Siberian
Orchestra, 728 F. Supp. 2d at 1318.
The amendment will not result in any prejudice to Defendant, who has yet to conduct any
discovery in this case or respond to Plaintiffs’ requests. And Plaintiffs have repeatedly advised
Defendant of their plan to amend.
Further, because these claims rely in part on information recently provided by the
Secretary, no undue delay or bad faith can be attributed to Plaintiffs. In a joint Report of Rule
26(f) Initial Conference filed by the Secretary and the U.S. Department of Justice on August 1,
2012, the Secretary represented that he would receive access to the SAVE database to crosscheck potential non-citizens by August 10, 2012. See Report of Rule 26(f) Initial Conference at
9, U.S. v. Florida, No. 4:12-cv-00285 (N.D. Fla. Aug. 1, 2012). Two days later, Plaintiffs issued
a letter to the Secretary, informing him, among other things, that any plans to use the SAVE
database to continue his purge of registered voters would violate the NVRA, along with section 2
of the Voting Rights Act. See Aug. 3, 2012 Ltr. from M. Goldman to Sec’y K. Detzner (Exh. 2).
The letter gave the defendant 20 days to remedy the harms caused by his purge, and to stop all
future NVRA violations.
See id.
Plaintiffs’ Amended Complaint thus coincides with the
statutory 20-day notice requirement for NVRA claims—less one day in order to comply with the
deadline for amended pleadings in the Court’s Scheduling Order.1
Nor can Plaintiffs’ amendments be considered futile, particularly where it corrects
Defendant’s misperception regarding the relief sought by Plaintiffs. The Secretary has stated
that “the allegations in the Complaint involve a data-matching program . . . that has not been
1
Indeed, this is one of the reasons why Plaintiffs sought to amend the Court’s Scheduling Order to extend the
deadline for amended pleadings. See Mem. of Law In Supp. of Pl.’s Expedited Mot. to Modify Sch. Order at 9-10.
The current deadline falls on August 22, 2012, which is just one day before the expiration of the 20-day notice
period set forth in the NVRA, 42 U.S.C. 1973-gg9(b).
3
Case 1:12-cv-22282-WJZ Document 43-1 Entered on FLSD Docket 08/22/2012 Page 9 of 24
employed by the Secretary since April 2012,” and that “the only remaining issue . . . is whether
Plaintiffs may obtain retrospective relief . . . .” See Sec’y Rule 26(f) Report ¶ A. The Amended
Complaint corrects this misperception by clarifying that Plaintiffs’ claims also encompass the
use of the SAVE database to check the status of, and purge, alleged non-citizens from the voter
rolls—a practice that violates the NVRA and the Voting Rights Act.
The procedural history of the case shows that Plaintiffs have diligently prosecuted their
claims in the face of Florida’s evolving efforts to purge their voter rolls. And although the case
is now in the initial stages of discovery, Defendants have not conducted any discovery, and will
not suffer any prejudice if the Court grants leave to file Plaintiffs’ Amended Complaint. As
demonstrated above, there is no “apparent or declared reason” to deny Plaintiffs’ motion, Foman,
371 U.S. at 182; therefore, leave to amend should be freely given.
CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request the Court grant leave to file the
proposed First Amended Complaint.
Dated: August 22, 2012
Respectfully submitted,
By:
Of Counsel:
4
/s/ John De Leon
John De Leon
Florida Bar No. 650390
LAW OFFICES OF CHAVEZ & DE LEON
5975 Sunset Drive, Suite 605
South Miami, FL 33143
(305) 740-5347
(305) 740-5348 (fax)
[email protected]
Case 1:12-cv-22282-WJZ Document 43-1 Entered on FLSD Docket 08/22/2012 Page 10 of 24
Catherine M. Flanagan
Michelle Kanter Cohen
PROJECT VOTE
1350 I St., N.W., Suite 1250
Washington, DC 20005
(202) 546-4173
(202) 629-3754 (fax)
[email protected]
[email protected]
Lorelie S. Masters
Marc A. Goldman
JENNER & BLOCK, LLP
1099 New York Ave., N.W.
Suite 900
Washington, DC 20001-4412
(202) 639-6000
(202) 639-6066 (fax)
[email protected]
[email protected]
Ben Hovland
FAIR ELECTIONS LEGAL NETWORK
1825 K Street NW, Suite 450
Washington, D.C. 20006
(202) 248-5346
(202) 331-1663 (fax)
[email protected]
J. Gerald Hebert
Campaign Legal Center
215 E Street NE
Washington, DC 20002
(202) 736-2200
[email protected]
Katherine Roberson-Young
Florida Bar No. 038169
3000 Biscayne Blvd., Suite 212
Miami, Florida 33137
(305) 571-4082
(305) 571-1396 (fax)
[email protected]
Juan Cartagena
Jose Perez
Diana Sen
LATINOJUSTICE PRLDEF
99 Hudson Street, 14th Floor
New York, NY 10013-2815
(212) 219-3360
(212) 431-4276 (fax)
[email protected]
[email protected]
[email protected]
Penda Hair
Katherine Culliton-Gonzalez
Uzoma Nkwonta
ADVANCEMENT PROJECT
1220 L Street, N.W., Suite 850
Washington, D.C. 20005
(202) 728-9557
(202) 728-9558 (fax)
[email protected]
[email protected]
[email protected]
Attorneys for Plaintiffs
5
Case 1:12-cv-22282-WJZ Document 43-1 Entered on FLSD Docket 08/22/2012 Page 11 of 24
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that, on August 22, 2012, a true and correct copy of the
foregoing and attachments thereto was served on all counsel of record via CM/ECF.
Dated: August 22, 2012
By:
6
/s/ John De Leon
John De Leon
Case 1:12-cv-22282-WJZ Document 43-1 Entered on FLSD Docket 08/22/2012 Page 12 of 24
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI CIVIL DIVISION
Case No. 1:12-cv-22282-WJZ
Honorable Judge William J. Zloch
KARLA VANESSA ARCIA, an individual,
MELANDE ANTOINE, an individual, VEYE
YO, a civic organization based in MiamiDade County, FLORIDA IMMIGRANT
COALITION, INC., a Florida non-profit
corporation, NATIONAL CONGRESS FOR
PUERTO RICAN RIGHTS, a Pennsylvania
non-profit corporation, FLORIDA NEW
MAJORITY, INC., a Florida non-profit
corporation, and 1199SEIU UNITED
HEALTHCARE WORKERS EAST, a Labor
Union,
Plaintiffs,
v.
KEN DETZNER, in his official capacity as
Florida Secretary of State,
Defendant.
[PROPOSED] ORDER GRANTING MOTION FOR LEAVE TO AMEND COMPLAINT
THIS MATTER is before the Court upon the Motion For Leave To Amend Complaint
of Plaintiffs Karla Vanessa Arcia, Melande Antoine, Veye Yo, Florida Immigrant Coalition, Inc.,
National Congress for Puerto Rican Rights, Florida New Majority, Inc., and 1199SEIU United
Healthcare Workers East (collectively, “Plaintiffs”). Having reviewed the motion, it is
ORDERED AND ADJUDGED that:
1.
Leave for Plaintiffs to amend their Complaint filed on June 19, 2012 is hereby
GRANTED; and
7
Case 1:12-cv-22282-WJZ Document 43-1 Entered on FLSD Docket 08/22/2012 Page 13 of 24
2.
Plaintiffs are directed to file their Amended Complaint via ECF.
DONE AND ORDERED at Fort Lauderdale, Broward County, Florida, this _________
day of _____________, 2012.
__________________________________
Honorable William J. Zloch, U.S.D.J.
8
Case 1:12-cv-22282-WJZ Document 43-1 Entered on FLSD Docket 08/22/2012 Page 14 of 24
Exhibit 1
Case 1:12-cv-22282-WJZ Document 43-1 Entered on FLSD Docket 08/22/2012 Page 15 of 24
FLORIDA DEPARTMENT
of STATE RICK SCOTT
Governor
KENDETZNER
Secretary of State
June 19, 2012
The Honorable Janet Napolitano
U.S. Department of Homeland Security
Washington, D.C. 20528
Dear Secretary Napolitano:
I write in response to a June 12 letter received from Alejandro Mayorkas, Director of U.S
Citizenship and Immigration Services (USCIS), regarding the longstanding request by the Florida
Department of State (FDOS) for access to the Systematic Alien Verification for Entitlements Program
(SAVE Program). The US CIS letter confirms our understanding that the SAVE Program can be used for
voter registration purposes and would allow Florida to verify the citizenship status of naturalized U.S.
citizens and the immigration status of defined categories of non-citizens.
The June 12 letter also states that uscrs is willing to work with my Department to "achieve
Florida's participation in the SAVE Program." We accept this offer and respectfully reiterate our request
for immediate access to the SAVE Program.
Unfortunately, the uscrs letter indicates a lack of familiarity with Florida' s procedures to identify
potential non-citizens on its voter registration rolls, FDOS 's intended use of the SAVE Program, and­
most significantly-the data fields that FDOS offered to provide to uscrs, several months ago, to verify
the current legal status of potential non-citizens. As previously stated, the Florida Department of State
has access to alien registration numbers and other immigration-related documents for many
potential non-citizens on its voter rolls and remains willing to provide this information to USCIS for
verification purposes.
Other information regarding Florida' s efforts to identify potential non-citizens on its voter rolls,
much of which has been previously provided or explained to uscrs, is summarized below.
Automated Match Process
FDOS has an obligation under both state and federal law to protect the integrity of the electoral
process by identifying ineligible registered voters and otherwise ensuring the accuracy of Florida's voter
registration system. In the Spring of2011 , FDOS was informed that Florida' s Department of Highway
Safety and Motor Vehicles (DHSMV) maintains a record of citizenship/immigration-status infonnation
for individuals who have obtained a state driver license or identification card. FDOS believed DHSMV' s
legal-status information could be helpful in identifying non-citizens who have registered to vote.
R. A. Gray Building • 500 South Bronough Street • Tallahassee, Florida 32399 Telephone: (850) 245-6500 • Facsimile: (850) 245-6125 www.dos.state.fl.us www.fla500.com Commemorating 500 years of Florida history
VIVA flORIDA
VIVA flORIDA
Case 1:12-cv-22282-WJZ Document 43-1 Entered on FLSD Docket 08/22/2012 Page 16 of 24
FDOS worked with DHSMV to identify potential non-citizens who were registered to vote by
identifying records common to DHSMV ' s Drivers and Vehicle Information Database (DAVID) and the
Florida Voter Registration System (FVRS). The matching criteria used for this initial, automated match
were (1) exact match on a driver' s license number; (2) exact match on a nine-digit social security number;
or (3) exact match on a generated driver' s license number (derived from name (first and last), date of
birth, and gender as contained in FVRS) with existing driver' s licenses in DAVID. This final matching
criterion was used because there are registered voters for whom there is no driver' s license number or
social security number, as they registered prior to that identification requirement.
The return file only contained information on automated matches in which the DAVID system
indicated that the person was a non-citizen based on documents produced to obtain a driver' s license or
state ID card. DHSMV ' s automated match process was able to identify roughly 11 million common
records, of which approximately 180,000 were identified by DHSMV as potential non-citizens.
Secondary Review of Automated Matches
Following the automated match process, the Florida Department of State manually reviews each
automated match. The two-step process involves a verification of both identity and legal status. First, the
Florida Department of State verifies that the registered voter is the same person as the driver licensee by
reviewing the name and date of birth under the driver' s license and/or social security number, along with a
review of other common fields such as address and signature comparison. Identification must be verified
on a minimum of three secondary match criteria (first/last name, date of birth, and driver' s license number
and/or social security number).
If the identity is verified, the Department of State verifies that the legal status information in
DAVrD indicates "non-citizen" by reviewing the country/state of birth, the alien registration number or
legal permanent resident number (if available), documentation indicating legal status (citizen or non­
citizen), and reconciling any inconsistencies in DAVID between data fields and available scanned
documentation. If DAVID has available documentation as to legal status, the match record is deemed
"REAL ID compliant."
Only a record that is verified as to both identity and non-citizen legal status is deemed a "potential
ineligibility" match, valid for subsequent determination and possible removal by county Supervisors of
Elections under the process prescribed by section 98.075(7), Florida Statutes.
FDOS soon recognized that the most significant limitation in its process was outdated citizenship­
status information contained in a person' s DAVID record, which is only as current as the person' s last
interaction with DHSMV. To obtain the most current and reliable information on a person' s citizenship
status, narrow the list of potential non-citizens on Florida' s voter rolls, and ensure that persons who have
become citizens since their last contact with DHSMV would not be inconvenienced, FDOS would need
direct access to the SAVE Program. FDOS first contacted USeIS regarding access to the SAVE Program
on August 1, 2011.
In April 2012 , at the urging of several members of the Executive Board of the Florida State
Association of Supervisors of Elections, FDOS forwarded a sample of roughly 2,700 persons identified as
potential non-citizens to Supervisors of Elections for their additional review. Because DHS has blocked
Florida' s access to the SAVE Program, FDOS has been unable to send additional information to
Supervisors of Elections since April 30, 2012.
Case 1:12-cv-22282-WJZ Document 43-1 Entered on FLSD Docket 08/22/2012 Page 17 of 24
Notice, Hearing, and Removal Procedures
After receiving information that a registered voter may be ineligible for any reason, Florida law (§
98.075(7), Florida Statutes) requires a Supervisor of Elections to take the foHowing actions before any
person' s nan1e may be considered for removal from the Florida Voter Registration System:
1. Initiate notice to the registered voter of his or her potential ineligibility by certified mail, return
receipt requested (or by some other means that allows verification of receipt). The notice must
include (by law):
o
o
o
o
o
o
o
A statement of basis for ineligibility
A copy of any supporting documentation
A statement that failure to respond within 30 days may result in removal from rolls
A return form that requires voter to admit or deny accuracy of information
A statement that a person denying ineligibility has a right to a hearing
Contact information for the Supervisor of Elections
Instructions for seeking restoration of civil rights (if applicable)
2. Allow voter 30 days to respond (if the Supervisor of Elections receives verification that the
notice was delivered).
3. If the mailed notice is returned as undeliverable, publish notice in a newspaper of general circulation in the county where the voter was last registered. 4. Allow voter 30 days to respond after newspaper publication.
5. Provide a hearing if requested by a registered voter denying the accuracy of the information
underlying the potential ineligibility.
6. Determine eligibility of person based on a preponderance of the information and documentation
before the Supervisor of Elections regarding eligibility or ineligibility.
If a registered voter identified as a potential non-citizen has become a citizen at any time
before the Supervisor' s determination of eligibility, the voter shall be deemed eligible for purposes
of continuing registration and should not be removed from the rolls.
8. If determined ineligible, remove voter's name from FVRS.
9. Send notice to the voter regarding the Supervisor' s determination and action.
The United States Department of Justice has granted preclearance to Florida' s notice, hearing, and
removal process outlined above. Florida law also provides a right to appeal the Supervisor' s determination
of ineligibility to a court. Any voter whose name has been removed from the rolls can, at any time,
present evidence that removal was erroneous and be restored to the rolls without having to re­
register, even if the registration period for that election has closed. And even on Election Day itself,
any person who has been removed from the voter rolls is entitled to cast a provisional ballot that will be
counted if a preponderance ofthe evidence shows the person was eligible.
Florida Has Offered to Provide the Unique Identifiers Required by the SAVE Program
According to the June 12 letter, DHS is prepared to grant Florida access to the SAVE Program for
voter registration purposes provided Florida complies with the SAVE Program' s "mandates" and
"conditions." For nearly a year, Florida has been prepared to comply with all of the generally applicable
Case 1:12-cv-22282-WJZ Document 43-1 Entered on FLSD Docket 08/22/2012 Page 18 of 24
conditions of the SAVE Program. Nonetheless, USCIS has been generally non-responsive and has failed
to specifically identify any conditions that Florida has not satisfied. These delays have significantly
prejudiced Florida' s ability to fulfill its legal obligation to verify that its voter registration rolls are current
and accurate.
The June 12 letter identifies only a single condition that Florida has allegedly failed to meet.
USCIS claims that Florida "has not been able to provide the required information to USCIS" needed to
verify current status-specifically, an alien registration number or other "unique identifiers" found on
immigration documents. This is simply incorrect. As explained to USCIS several months ago, the Florida
Department of State has access to the alien registration numbers and immigration-related documents
contained in DHSMV ' s database. Indeed, DHSMV itself is a registered user of the SAVE Program and
uses legal status information to verify eligibility for state driver's licenses. Ifthese "unique identifiers" are
sufficient for DHSMV' s use of the SAVE Progranl, the same information should be sufficient for FDOS ' s
use of the SAVE Program.
Moreover, by stating that the SAVE Program "does not allow verification based on name and/or
date of birth alone," USCIS implies that Florida has offered only those two data fields. This, too, is simply
false. In addition to the alien registration numbers and other identifiers obtained from DHSMV, Florida
has specifically offered to provide the following identifying information to USCIS for verification of legal
status:
• first name;
• middle name;
• last name;
• date of birth;
• personal identifying number (Florida driver' s license number, Florida identification card number,
or last 4 digits of the Social Security Number);
• race (where available);
• state or country of birth (where available);
• telephone number (where available);
• residential address (Street, Apt/LotiUnit, City, County, ZIP code);
• mailing address (including Street/P.O. Box, City, State, ZIP code); and
• signature.
FDOS has gone well beyond offering only "name and/or date of birth" to USCIS for verification of
the legal status of potential non-citizens. Indeed, FDOS has offered to provide the very information the
USCIS letter now states is sufficient.
FDOS's Intended Use of the SAVE Program
If provided access to the SAVE Program, FDOS would use the immigration and citizenship-status
information contained in the database as an additional check in its secondary review of the records
identified through the automated match process. After manually confirming the automated identity match,
FDOS would submit any alien registration number or other "unique identifier" contained on immigration­
related documents obtained from DHSMV to the SAVE Program.
If the SAVE Program indicates that the registered voter associated with the alien registration
number remains a non-citizen, that information could, consistent with law, be provided to Supervisors of
Elections to initiate the notice, hearing, and removal procedures outlined above. If the SAVE Program
indicates that the non-citizen has since become a United States citizen, the updated legal-status
information would simply be transmitted to DHSMV and-clearly-no action would be taken to remove
the voter from the FVRS.
Case 1:12-cv-22282-WJZ Document 43-1 Entered on FLSD Docket 08/22/2012 Page 19 of 24
Conclusion
Access to the SAVE Program is critical to ensuring that Florida can uphold its legal obligation to
maintain a current and accurate voter registration system, while at the same time minimizing any
inconvenience to eligible voters. I respectfully reiterate Florida's request for immediate access to the
SAVE Program and a response to this letter no later than June 26, 2012.
Sincerely,
Ken Detzner
Secretary of State
cc: Alejandro Mayorkas
Case 1:12-cv-22282-WJZ Document 43-1 Entered on FLSD Docket 08/22/2012 Page 20 of 24
Exhibit 2
Case 1:12-cv-22282-WJZ Document 43-1 Entered on FLSD Docket 08/22/2012 Page 21 of 24
JENNER&BLOCK
August 3, 2012
Jenner & Block tLI'
1099 New
York
Avenue, NW
Suite 900
Washington, DC 2000 i
Chicago
Los Angeles
New
Tel 202-639-6000
ww.jenner.com
VIA EMAIL AND UPS
Marc A. Goldman
Tel 202 639-6087
The Honorable Ken Detzner
Secretary of State
Florida Department of State
c/o Daniel Elden Nordby, Esq.
Ashley Davis, Esq.
R.A. Gray Building
500 South Bronough Street, Ste. 100
Tallahassee, FL 32399-0250
Fax 202 661-4849
[email protected]
RE: Arcia v. Florida Secretary of State, No. 12-cv-22282 (S.D. Fla. fied June 19,2012).
Dear Secretary Detzner:
We are writing on behalf of our members, constituents, clients and ourselves in the abovecaptioned matter and those similarly situated - i.e., organizations and individual U.S. citizens
registered to vote in the State of
Florida who have been and continue to be effected by the State's
systematic efforts to remove alleged noncitizens from the voting rolls in advance of the August
14 and November 6, 2012, federal elections, to once again notify you of ongoing violations of
the National Voter Registration Act of 1993 (NVRA) in your State.
On May 24,2012, certain co.:counsel in this matter wrote to notify you that the process by which
the State of Florida was removing voters whom it alleges are noncitizens violates the NVRA.
Specifically, Florida's removal program violates NVRA in two ways. First, it is a program to
"systematically remove ineligible voters" from the rolls within 90 days of a federal election as is
prohibited by the NVRA. See 42 U.S.C. § 1973gg-6(c)(2). Second, it has employed a flawed
and inaccurate matching system that relies on information contained in the Department of
Highway Safety and Motor Vehicles (DHSMV) database and on juror questionnaires and
produced an egregiously over-inclusive purge list that included numerous duly registered U.S.
citizens. In addition to being inaccurate, this matching system resulted in the targeting of
Latinos, Haitian Americans, and other minority voters in Florida in violation ofNVRA Section
8(b)( 1)' s requirement that any state program to maintain an accurate and current voter roll must
be "uniform, nondiscriminatory, and in compliance with the Voting Rights Act." ¡d. § 1973 gg-
6(b)(l).
State, No. 12-cv-22282 (S.D. Fla. filed June 19,2012),
have been harmed by Florida's violations of
the NVRA described above. Individual Plaintiffs
Karla Vanessa Arcia and Melande Antione are U.S. citizens and duly registered Florida voters.
Ms. Arcia and Ms. Antione are Nicaraguan-American and Haitian-American, respectively. Both
Plaintiffs in
Arcia v. Florida Secretary of
York
Washington, DC
Case 1:12-cv-22282-WJZ Document 43-1 Entered on FLSD Docket 08/22/2012 Page 22 of 24
The Honorable Ken Deztner
August 3,2012
Page 2
were inaccurately and improperly identified as potential noncitizens by Florida's removal
program within 90 days of a federal election - i.e., the August 14,2012, primary election.
Organizational Plaintiffs Veye Yo, Florida Immigrant Coalition, Inc., National Congress for
Puerto Rican Rights, Florida New Majority, Inc., and 1 1995EIU United Healthcare Workers East
all, in accordance with their organizational purposes, devote energy and resources to ensuring
that their U.S.-citizen members are able to lawfully exercise their civic and democratic rights,
including the right to vote. As a result of
Florida's systematic program to remove alleged
noncitizens from the voting rolls in advance of the upcoming federal elections, Organizational
Plaintiffs have been forced to take action to mitigate problems caused by Florida's failures under
the NVRA and to divert resources from their other normal activities to ensure that their members
are not deprived of their voting rights.
Since first notifying you in May that Florida's registered voter removal program violates the
NVRA, Plaintiffs have on multiple other occasions expressed their concern over the ongoing
unlawful nature of
the program, including by filing the above-captioned case on June 19,2012,
at a status hearing before the United States District Court for the Southern District of
Florida on
July 23,2012, and by letter on July 27,2012.
Although Plaintiffs have thus already provided notice of Florida's violations under the NVRA in
accordance with 42 U.S.C. § 1973gg-9(b), with ample time to cure them, and despite the
apparent futility of doing so again, given the First Affrmative Defense pled in your July 12,
2012 Answer, and in light of
recent reports that Florida intends nevertheless to resume its
program to remove noncitizens from its voter rolls, Plaintiffs are compelled to again express our
concerns.
It is our understanding, from reports in the press, that Florida intends to proceed with its program
to remove additional voters from the rolls prior to at least the November 6,2012, general
election. To the extent Florida intends to seek to conduct a program to remove voters from the
State's rolls based on their alleged noncitizenship prior to the August 14,2012, primary election,
doing so wil violate the NVRA's prohibition on systematic purges within 90-days of a federal
election. As the deadline for completing any such voter removal program in advance of the
November 6 general election is August 8, 2012, any actions the State takes to systematically
remove voters from the rolls after date wil also violate the NVRA. See 42 U.S.C. § 1973gg6( c )(2)(A) ("A State shall complete, not later than 90 days prior to the date of a primary or
general election for Federal offce, any program the purpose of
which is to systematically
remove the names of ineligible voters from the offcial lists of eligible voters. ").
reports that Florida is in negotiations with the U.S. Department of
Homeland Security to finalize the terms ofthe State's access to DHS' Systematic Alien
Verification for Entitlements (SA VE) database, Plaintiffs hereby notify you of their belief that
use of this database wil not cure the violations under Section 8(b)(1) of the NVRA identified in
our letter of May 24 but instead wil itself constitute a violation. It is our understanding that to
utilize the SAVE database in a voter removal program, Florida must first prepare a list of alleged
noncitizen registered voters. To the extent such a list is prepared by matching names of
Additionally, in light of
Case 1:12-cv-22282-WJZ Document 43-1 Entered on FLSD Docket 08/22/2012 Page 23 of 24
The Honorable Ken Deztner
August 3, 2012
Page 3
registered voters with information contained in the DHSMV database or on
juror questionnaires,
the NVRA's requirement that voter
removal programs be "uniform, nondiscriminatory, and in compliance with the Voting Rights .
the Voting Rights Act, id. § 1973.
Act," 42 U.S.C. §§ 1973gg-6(b)(1), as well as Section 2 of
Should Florida instead seek to develop a preliminary list of alleged noncitizens to compare with
the SA VE database through other means, Plaintiffs do not believe it possible that any such
action, taken this close to the Election, could be completed in a nondiscriminatory fashion, with
the level of accuracy and reasonableness required by the NVRA.
Plaintiffs believe the program wil inevitably run afoul of
Plaintiffs therefore submit this supplemental letter to provide you with further notice of a
continuing violation of the NVRA - expressly including systematic efforts to remove noncitizens going forward. As you are no doubt aware, Congress enacted the NVRA for the express
purpose of reinforcing the right of qualified citizens to vote by reducing the restrictive nature of
voter registration requirements. See 42 U.S.c. § 1973gg(a), (b). The voter removal program that
Florida has recently pursued, and the one with which the State has indicated it wil proceed prior
to the coming general election, are inconsistent with this stated purpose as well as with the
specific provisions of the Act identified above. We therefore respectfully request that as
Florida's Secretary of State, you take action to remedy the harms incurred as a result of the voter
removal program and stop any future NVRA violations within 20 days of the date of this letter.
As we informed your counsel, Mr. Daniel Nordby, at the July 23 status hearing in this matter,
Plaintiffs intend to amend their Complaint and to continue to prosecute their claims to ensure
that all duly registered voters in the State of Florida are permitted to exercise their right to vote
on Election Day. We appreciate your cooperation and thank you for your prompt attention to
this matter.
..~~.~.
Sincerely,
Marc A. Goldman
Partner
Catherine M. Flanagan
Project Vote
1350 I Street, NW, Ste. 1250
Washington, DC 20005
Katherine Cullton-Gonzalez
Advancement Project
1220 L Street, NW, Ste. 850
Ben Hovland
Fair Elections Legal Network
1825 K Street, NW, Ste. 450
Washington, DC 20006
Katherine Roberson-Young
Washington, DC 20005
3000 Biscayne Blvd, Ste. 212
Miami, FL 33137
Case 1:12-cv-22282-WJZ Document 43-1 Entered on FLSD Docket 08/22/2012 Page 24 of 24
The Honorable Ken Deztner
August 3,2012
Page 4
Diana Sen
Veye Yo
LatinoJustice PRLDEF
99 Hudson Street, 14th Floor
Florida Immigrant Coalition, Inc.
New York, NY 10013
Florida New Majority, Inc.
J. Gerald Hebert
191 Somervelle Street, #415
Alexandria, VA 22304
John De Leon
Chavez & De Leon
5975 Sunset Drive, Ste. 605
South Miami, FL 33143