Eleventh Circuit Finds Florida Secretary of State Detzner’s Attempts to Remove Non-Citizens from Florida Electoral Rolls Violated National Voter Registration Act

In Arcia, et al. v. Florida Secretary of State, No. 12-15738 (Nov. 17, 2014), the Eleventh Circuit reversed the district court’s grant of judgment as a matter of law in favor of Secretary Kenneth W. Dentzer, finding that Florida did violate § 8(c)(2)(A) of the National Voter Registration Act, known as the 90 Day Provision, when it conducted a program to systematically remove suspected non-citizens from voter rolls within 90 days of a 2012 federal election.

The 90 Day Provision, codified at 42 U.S.C. § 1973gg-6(c)(2)(A), provides that “A state shall complete, not later than 90 days prior to the date of a primary or general election for Federal office, any program the purpose of which is to systematically remove the names of ineligible voters from the official list of eligible voters.” The central issue for the court was whether the 90 Day Provision encompassed the programs used by Secretary Detzner, which utilized national computer identification databases to identify the citizenship status of certain Florida voters, removing those believed to be “non-citizens” less than 90 days before an election.

Utilizing established tenets of statutory interpretation, the Eleventh Circuit found that the programs utilized by Secretary Detzner were barred under the plain meaning of the 90 Day Provision. First, the purpose of the programs used by Secretary Detzner was to remove non-citizens as “ineligible voters,” as citizenship is one of the requirements for eligibility to vote. Second, the programs utilized were “systematic” in that the programs did not eliminate names based on individualized information or investigation, but rather through mass computerized data-matching processes. Finally, noting that the court has previously found that “any” means all if no limiting language is used by Congress, “any program” suggested that Congress intended the provision to encompass programs of any kind, including those used by Secretary Detzner.

The court then considered the statutory context and policy of the National Voter Registration Act, which supported its conclusion that the plain meaning of the statute was intended by Congress to include the programs at issue. First, the specific exceptions enumerated allowing for removals during the final 90 days before an election are closely limited to four types of removals: 1) those at the request of the registrant; 2) those provided for by State law by reason of criminal conviction or mental incapacity; 3) those upon the death of the registrant; and 4) a change in the residence of the registrant. Removal based on citizenship was not included in the specific exceptions, leading to the assumption that such removals were not intended by Congress, and are thus prohibited. Furthermore, systematic removals, as opposed to individualized removals based on rigorous inquiry and individualized correspondence, pose too great a risk of disenfranchising eligible voters as any eligible voters mistakenly removed will most likely be unable to correct the error in time to vote. Because of this risk, the 90 Day Provision was established to limit such systematic removals at this last stage of the election cycle.

The court concluded its analysis by noting that its interpretation of the provision applied only to programs that “systematically” remove names of ineligible voters from voter rolls within the last 90 days before a federal election. The provision does not prohibit removal based on individualized information in this 90 day window, nor does it prohibit systematic removal prior to this window.

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