TAMPA - Last year's controversial purge of the state's voter registration rolls, which had been put on hold after a federal lawsuit was filed in Tampa, likely will resume now that the lawsuit is on the verge of being dismissed.
The lawsuit's future was doomed when the U.S. Supreme Court recently invalidated the section of the U.S. Voting Rights Act under which the suit was brought.
Civil rights lawyers say that means their work is harder now but that they will continue to fight efforts to limit voting rights.
"Our job is now trying to figure out how to defend the right to vote without the major weapon that we have had in our arsenal," specifically Section 5 of the Voting Rights Act, said Howard Simon, executive director of the Florida American Civil Liberties Union. "People need to understand that these pronouncements from the U.S. Supreme Court are just not abstract statements about the state of the law; they have immediate consequences," including the end of the Florida federal lawsuit.
The lawsuit, filed in Tampa federal court last year by a Hispanic civic organization, challenged the statewide purge of purportedly ineligible voters from the voter registration database. The purge began last year and ran into controversy when local elections supervisors identified widespread inaccuracies in the state's list.
In Hillsborough County, for example, the Elections Supervisor's office began notifying people on the list but soon received responses from residents who were able to document their American citizenship even though they had been identified by the state as noncitizens.
"We have a responsibility to act on credible information," said Hillsborough Elections Supervisor Craig Latimer. "We received information from the state that you would assume would be credible, from the Secretary of State's office."
After several people on the list came forward with birth certificates, passports and other documentation of citizenship, "there was a determination made that this was not credible, reliable information," Latimer said.
So the office stopped using the list.
The federal lawsuit charged that the voter purge violated the 1965 Voting Rights Act because the procedures used to identify potentially ineligible voters were not previously reviewed by the Justice Department. Under the law in force at the time the suit was filed, changes in voting laws affecting five Florida counties were required to be cleared by the federal government before being enacted because the counties, including Hillsborough, were deemed to have a history of discrimination.
But the U.S. Supreme Court last month overturned Section 4 of the Voting Rights Act that contained the formula for identifying which parts of the country - including the five Florida counties - were subjected to the preclearance requirements contained in Section 5 of the law.
By invalidating the current formula as outdated, the court rendered Section 5 unusable unless Congress designs a new formula for identifying which jurisdictions are subject to preclearance.
The decision means the Justice Department no longer has a role in reviewing state voting laws before they're enacted. And it cut the legs out from under the Tampa federal lawsuit, brought by the Mi Familia Vota Education Fund with backing from the ACLU and the Lawyers' Committee for Civil Rights Under Law.
The parties in the lawsuit agree the suit should now be dismissed but are still skirmishing over the wording of the dismissal and whether the federal government could still write a new formula for determining which states and counties should be subjected to preclearance under the Voting Rights Act.
The state stopped the purge after the Mi Familia lawsuit was filed in June 2012. Subsequently, the federal government agreed to allow the state access to a database of resident noncitizens maintained by the Department of Homeland Security, viewed as more accurate and containing many fewer names than the list of purported noncitizens previously compiled by the state.
But the federal SAVE database - Systematic Alien Verification for Entitlements -was never used because of the pending Mi Familia lawsuit.
In response to questions about the future of the purge now that the lawsuit is about to be dismissed, a spokesman for the Florida secretary of state said, "Ultimately, we fully intend to continue our efforts to remove noncitizens from Florida's voter rolls, and anticipate doing so with plenty of time to prepare for the next general election."
The spokesman, Mark Ard, did not say when that would happen, except that it was "dependent on the case."
Simon said the state's original list of noncitizens suspected to be on the voting rolls numbered about 180,000. With the federal database, the list has shrunk to about 2,600 names, Simon said.
Ard called both numbers "outdated and obsolete" but would not provide newer numbers.
Even though the Justice Department no longer has the right to review state legislation before it is enacted, the Voting Rights Act still bars voting discrimination, said Dara Lindenbaum, with the Lawyers' Committee for Civil Rights Under Law. And the National Voter Registration Act of 1993 also bars discriminatory and unfair voter registration laws.
Lindenbaum said the state has always had a right to perform maintenance of its voter registration lists, as long as it is done in a uniform and nondiscriminatory manner and follows proper procedures.
"This is something that's going to be an issue in Florida and across the country, and we are closely monitoring everything that these states are doing to make sure we protect voters,'' she said. "But our job is much more difficult now."
Until the Supreme Court decision, the burden was on the affected states and counties to prove that proposed voting changes didn't discriminate. Now, citizens who want to challenge voting laws must prove the laws discriminate.
In the weeks since the high court's ruling, some states, such as Texas, have moved to implement voter identification laws and other changes that had been blocked by the Justice Department as discriminatory, Simon said.
He worries what will happen in Florida.
"God knows what this Legislature will dream up in the 2014 session," he said. "They showed in 2011 that they are no fan of voting rights and will do whatever they can to manipulate the outcome of elections by making it more difficult for disfavored groups to vote."
Simon said the old Voting Rights Act formula did not go far enough in singling out only five of Florida's 67 counties for special scrutiny. He said the entire state needs to be monitored by the Justice Department for its treatment of voting rights.
"You look at the behavior of the Florida Legislature and our governor," he said. "They are walking advertisements for why this country needs a Voting Rights Act and why the Voting Rights Act should be applied to the entire state of Florida, and not only those five counties."
Congress may not be interested in enacting a new Section 4 formula to put the teeth back into the Voting Rights Act, Simon said. But Congress was hostile to the original Voting Rights Act and was compelled by the civil rights movement of the 1960s, he said.
"What has to happen is a reigniting of the same kind of civil rights movement that will force Congress to act," Simon said. "If the state believes it has a free hand to manipulate the rules and procedures of voting, that's a very dangerous matter and something that's going to require a response by defenders of voting rights."