Sen. Pat Toomey discusses whether Attorney General Eric Holder should have appointed a special prosecutor to determine whether the Obama administration purposefully leaked intelligence information. 

The Justice Department entered the long-running struggle over voter eligibility Thursday, warning Florida that its program to check the citizenship status of registered voters violates both Section 5 of the Voting Rights Act and the 1993 National Voter Registration Act.

In a battleground state in a presidential election year, the voter eligibility scuffle may have big implications, especially when you consider that George W. Bush won Florida in 2000 by a mere 537 votes in a case ultimately decided by the U.S. Supreme Court.

People wait before Republican presidential hopeful Newt Gingrich visits a voting precinct at the First Baptist Church of Windermere January 31, 2012 in Orlando, Florida.

The state said its initial check found 180,000 potential non-citizens who may be registered voters.

Florida Democratic Rep. Ted Deutch referred to the citizenship verification process as Republican Gov. Rick Scott’s “blatant campaign to suppress the vote immediately in advance of the presidential election.”

The struggle over who should be eligible to vote and who shouldn’t – not only in Florida, but in another battleground state, Colorado, and in other states as well – raises important policy questions:

• Why is there no national registry of American citizens that state and local election officials could check to see if someone is eligible to vote? Solicitor General Donald Verrilli confirmed in the oral argument before the Supreme Court on the Arizona immigration law that “there is no reliable way in the (DHS) database to verify that you are a citizen, unless you are in the passport database.”
• Is the attempt to remove non-citizens from the list of voters simply impossible – due to lack of accurate data on citizen status, or is it possible to do, but will have the side effect of inadvertently striking some citizens from the rolls?
• For those citizens who are mistakenly struck from the list of voters, do states have adequate notice and appeal processes in place to protect their ability to vote?
• Rather than leaving this task to elected state officials, would it be efficient for Congress to create a federal agency to ensure that all eligible voters can cast a ballot and that non-citizens can’t vote?

Since early May, Florida Secretary of State Ken Detzner, an appointee of Scott’s, has been leading an effort to use data from the state Department of Highway Safety and Motor Vehicles to verify that registered voters are U.S. citizens. 

Thursday’s letter to Detzner from Christian Herren, chief of the voting section at Justice Department’s Civil Rights Division, said Section 5 of the Voting Rights Act required the state to get pre-clearance from the department or from a federal judge before implementing its citizenship checking program.

Herren also said the NVRA doesn’t allow an effort to remove the names of ineligible people from the list of voters so close to an election – Florida holds its primary on Aug. 14.

Chris Cate, spokesman for the Florida Department of State said his department had not yet had a chance to thoroughly review Herren’s letter.

But he added, “We provided information to the U.S. Department of Homeland Security yesterday, and have been doing so for nearly nine months, in hopes that the federal government would help us identify ineligible voters.”

Having gotten the letter from Herren, he said, “at least we know the federal government knows we take ineligible voters on the voter rolls seriously. We hope the federal government will recognize the importance of accurate voter rolls and support our efforts.”

In his letter to Homeland Security Secretary Janet Napolitano, Detzner asked her to provide the state access to DHS’s Systematic Alien Verification for Entitlements database to help it verify citizenship of would-be voters. According to an analysis by the Miami Herald, nearly three out of five of those initially identified by the Florida Department of State as potential noncitizens are Latinos. But whether they are citizens or not is still unclear.

Separately, a federal judge Thursday blocked enforcement of new Florida rules on voter registration, saying they imposed “burdensome record-keeping and reporting requirements that serve little if any purpose … .” The League of Women Voters of Florida, Florida Public Interest Research Group Education Fund, and Rock the Vote had filed suit challenging the rules.

In scrutinizing the list of voters, former Kentucky secretary of state Trey Grayson, who is now director of the Harvard University Institute of Politics, said, “We always run this risk of: Which side do we err on? Do we err on the side of leaving a non-citizen or somebody who is ineligible on the voter rolls? Or do we run the risk of removing somebody who otherwise is eligible to vote? And sometimes when you’re trying to do one, you end up doing the other.”

Cate said that as for cases of citizens being mistakenly caught in Florida’s initial screening, “We’re using data based on someone’s last interaction with the Florida Dept. of Highway Safety and Motor Vehicles. We’ve known some of the 180,000 potential non-citizens may have become a citizen since they last updated their driver’s license. But this is the best process we have to remove ineligible voters from our voter rolls, to contact every one of the 180,000 people individually.”

Meanwhile in Colorado, which President Obama won with 53.6 percent of the vote in 2008, Secretary of State Scott Gessler, a Republican, has also urged DHS to use its databases to help the state verify the citizenship of certain register voters.

Gessler said in a letter to Napolitano that more than 2,000 registered voters had presented a non-citizen document to the Colorado Department of Motor Vehicles during a driver’s license transaction.

In a letter last month to Gessler, Alejandro Mayorkas, director of U.S. Citizenship and Immigration Services, a DHS agency, said, “We must further assess serious legal and operational issues” before deciding whether to give Colorado the information it sought.

“I know they have some information that will help us. For example, everyone who is here legally, every green card holder or holder of a student visa, that information is kept” by DHS, said Gessler in an interview Friday. “And that’s information we could use. They also have information on illegal residents here, not all of them of course. I recognize that information is not perfect, but that information could help us as well. I don’t expect the databases that Homeland Security has to solve every problem with 100 percent accuracy, but it could really go a long way to helping us out a lot here in Colorado, and I’m sure in other states too.”

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How do non-citizens wind up being registered voters in Colorado? “A lot of times people mistakenly believe they can register to vote even if they’re not a citizen,” Gessler said.

Asked whether 2,000 or so noncitizens being registered to vote is a significant issue in a state where more than 2.4 million people voted in the 2008 presidential election, Gessler said, “Colorado has a history of close races: for example, one of our current congressmen, Jared Polis, won his first election as a member of the Board of Education – an at-large seat which meant he ran statewide, by 90 votes,” Gessler said.

And to those who might impute a political motive to Gessler to scrub the voter rolls in a state which swung from Republican in 2004 to Democratic in 2008, Gessler said, “I’ve got an obligation enforce the law and let the chips fall where they may.”

Election law expert Rick Hasen, a law professor at the University of California Irvine School of Law, said, “If we were serious about dealing with non-citizen voting, which does happen on occasion, we should move to national voter registration for federal elections, and check data against citizenship records.”

But he said for Congress to create such a national election agency “is not politically feasible now.”

Little known outside the elite world of Supreme Court lawyers only a few weeks ago, Donald Verrilli has become famous -- or notorious, depending on one’s point of view -- for his oral arguments before the high court in the health care cases last month and in the Arizona illegal immigration case this week. 

Observers have panned Verrili’s performances and point to comments by some of the justices showing impatience with how he made the Obama administration’s case.

Art Lien / AFP - Getty Images

This courtroom sketch by Art Lien shows Solicitor General Donald Verrilli, right, speaking to Justice Antonin Scalia on March 26, 2012 as he argues his case before the Supreme Court in Washington, DC.

Justice Sonia Sotomayor told Verrilli during Wednesday’s oral argument, “General, I'm terribly confused by your answer. Okay? And I don't know that you're focusing in on what I believe my colleagues are trying to get to.”

"Obama's Lawyer Chokes Again" the Drudge Report headlined Wednesday, while in The Daily Beast, Arizona journalist Terry Greene Sterling, called Verrilli’s performance “a humiliating slap-down of the U.S. solicitor general … Verrilli lost focus and failed to drive home key points.”

“There have been a lot of attacks on the left on Verrilli,” said University of Wisconsin political scientist Ryan Owens, co-author of The Solicitor General and the United States Supreme Court: Executive Branch Influence and Judicial Decisions, an empirical study of the performance of solicitors general.

“There’s some grumbling that he hasn’t performed ably,” Owens said. “If he loses this Arizona case, then you might start to see calls” for Obama to find a new solicitor general.

“It seems to me, though, that the president is in a kind of complicated political position here. Let’s assume that the court strikes down the individual mandate and assume that the court sides with Arizona,” Owens said. “If he replaces Verrilli, it makes it difficult to make the Supreme Court look like it is activist -- and it seems he’s going to try to do that as he runs for re-election. Instead it looks as though Verrilli sort of lost the case.”

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The solicitor general’s job is to decide when the United States should appeal a case it has lost in a lower court and when it should file an amicus brief in a case in which it is not a party. The solicitor general doesn’t personally argue every Supreme Court case involving the federal government -- he has a staff of lawyers who argue many of them -- but he does often argue the highest profile ones.

Among those who have served as solicitor general, five have gone on to become justices of the Supreme Court: William Howard Taft, Robert Jackson, Thurgood Marshall, Stanley Reed and Elena Kagan.

Some high court observers think the current denigration of Verrilli is unwarranted.

The criticism “has been overstated and at times unfair,” said Elizabeth Wydra, chief counsel of the Constitutional Accountability Center, a liberal legal think tank. “His arguments, along with the briefs filed in the health care and Arizona cases give the justices every argument they need to side with General Verrilli in both cases. While I wish he would have emphasized the Constitution's text and history more, because those sources are so strongly on the Administration's side in both cases, that is a strategic judgment call more than a criticism."

Andrew Pincus, a partner in the Mayer Brown law firm who has argued 23 cases before the Supreme Court and is co-director of Yale Law School’s Supreme Court Advocacy Clinic, said the criticism was “completely unfair and completely inaccurate.”

He said, “In order to assess whether someone is doing a good job in a Supreme Court oral argument, you have to understand what a Supreme Court argument is: It’s not a speech; it doesn’t have to be flowery, it’s not pretty. The whole notion is to provide answers to the concerns that animate the justices’ questions – and do so in a way the advances your cause both with that justice and with court as a whole.”

He added, “I’ve read some people who say, Gee, the solicitor general didn’t make some of the arguments that were suggested by some of the questions by justices who appeared to be favorably inclined in the health care argument.”

But he said, “My guess is if I were him, I would have done exactly what he did -- because a lot of the arguments that were being suggested would alienate other justices whose votes are probably critical to the outcome of the (Affordable Care Act) case.”

Many accounts of Wednesday’s Arizona argument mentioned the awkward moment when Sotomayor told Verrilli, “Putting aside your argument that this -- that a systematic cooperation is wrong -- you can see it's not selling very well -- why don't you try to come up with something else?”

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But Pincus said, “It’s quite typical that justices say, ‘your argument isn’t convincing me.’ It may be the only argument that’s available. And it may be an argument that’s not necessarily directed to the justice who’s asking the question, but is directed to some other justices who may have a different perspective.”

He added that statements the solicitor general makes in oral argument “are quoted back to the government later in the Supreme Court, in lower courts. You can’t just say, ‘I’ll say anything to win this case.’”

In sum, Pincus said, “No one could ever know if the (oral) argument is why you win or not – and in 99.9 percent of the cases, it almost certainly isn’t.”

Owens agrees with that assessment up a to a point: “While the quality of oral argument is not the primary driver of justices’ decisions, a strong performance can increases a party’s odds of success -- so in this particular (Arizona) case it’s quite possible that a stronger argument by the solicitor general might have persuaded Justice Kennedy or Chief Justice Roberts. It’s too early to tell where those justices are going to come down. It’s quite possible that Verrilli’s argument, as weak as it seems to have been, maybe it did win the day,”

Pincus said it’s a mistake to imagine that a virtuoso performance by the solicitor general – as in Hollywood movies where a lawyer saves his client from the death penalty – will tip a case in the government’s favor.

“It’s not like you’re going to walk into the courtroom and come up with a new legal argument that no one has thought of before and really wow them. Eighty-five percent of your presentation is the written product (the legal briefs),” he said. “In fact the court would be quite surprised and it would be an admission of weakness in your case and not having thought it through, for you to stand up and say, ‘Throw out everything I’ve said in the written briefs. I’ve now got a great new idea!’ It’s the writing of the briefs that frames the legal argument in the case.”

While in Congress and the news media outside the Supreme Court, the burning issue in the Arizona immigration case was whether the Arizona law was on its face invalid because it would require racial profiling, that’s not the argument the Obama administration chose to make.

Instead it argued that the state was treading on the federal responsibility to regulate immigration.

Roberts made that quite clear in his very first question to Verrilli as soon as he stood up to begin on Wednesday: “No part of your argument has to do with racial or ethnic profiling, does it? I saw none of that in your brief.” Verrilli replied, “That's correct.”

If the Arizona is allowed to stand and is enforced, the racial profiling issue may be decided in some future case.

Updated at 11:45a.m.ET: 

Mark Wilson / Getty Images

Homeland Security Secretary Janet Napolitano walks into a Senate Judiciary Committee hearing on April 25, 2012 in Washington, DC.

There was no risk to President Barack Obama as a result of a prostitution scandal at a Colombia hotel that involved a dozen Secret Service officers, Homeland Security Secretary Janet Napolitano told a Senate panel Wednesday.

Napolitano, who was facing questions from the Senate Judiciary Committee for the first time since the scandal erupted earlier this month, testified that the alleged behavior by Secret Service employees is "inexcusable" and a "thorough and full investigation is under way." She said the officers' behavior "was not part of the Secret Service way of doing business."

"All 12...have either faced personnel action or been cleared of serious misconduct," Napolitano said. "We will not allow the actions of a few to tarnish the proud legacy of the Secret Service."

Napolitano also said part of the investigation will include a review of training to see "what if anything needs to be tightened up."

When asked by committee Chairman Sen. Patrick Leahy, D-Vt., if Secret Service officers are specifically training on issues related to having intimate relationships with foreign nationals, she said the training is "focused on professionalism, on conduct consistent of the highest moral standards."

Napolitano also testified that the Secret Service Office of Professional Responsibility, which is investigating the incident in Cartagena, Colombia, had not received any similar complaints of misconduct in the last 2 ½ years.

The Homeland Security inspector general is also supervising the investigation and "the investigatory resources of the Secret Service," she said, adding that she expect the inspector general to do a complete investigation.

Leahy said before the hearing that he wanted to know how thorough the investigation into the misconduct has been and whether such behavior by Secret Service officers has been tolerated in the past.

 
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"I think that's a very legitimate question. And I've raised it twice with the director of the Secret Service. We'll raise it again," Leahy told NBC's "Today Show."

The Secret Service announced late Tuesday that all 12 implicated officers had been dealt with: eight forced out, one stripped of his security clearance and three cleared of wrongdoing, all within two weeks of the night in question.

The scandal erupted after a fight over payment between a Colombian prostitute and a Secret Service employee spilled into the hallway of the Hotel Caribe ahead of President Barack Obama's arrival at the Summit of the Americas in Cartagena. A dozen military personnel have also been implicated, and Defense Secretary Leon Panetta said they have had their security clearances suspended.

Obama said Tuesday the employees at the center of the scandal were not representative of the agency that protects his family in the glare of public life. "These guys are incredible. They protect me. They protect Michelle. They protect the girls. They protect our officials all around the world," the president said on NBC's "Late Night With Jimmy Fallon."

"A couple of knuckleheads shouldn't detract from what they do," Obama added. "What these guys were thinking, I don't know. That's why they're not there anymore."

Lawmakers across Congress say they are concerned about the security risk posed by the proximity the prostitutes — as many as 20, all foreign nationals — had to personnel with sensitive information on the president's plans.

"No one wants to see the president's security compromised or America embarrassed," Leahy said.

Related: 3 more Secret Service employees forced out in Colombia prostitution scandal 

Napolitano said that there was no risk to the president. Questions about the culture of the agency, she said, are still being investigated but she was not aware of this being a wider problem.

"This behavior was not part of the Secret Service way of doing business," Napolitano testified. "We are going to make sure that standards and training, if they need to be tightened up they are tightened."

Elsewhere on Capitol Hill, House Speaker John Boehner said the scandal is an embarrassment to the agency and the United States, but stopped short of calling for an independent investigation.

"What I'm looking for are the facts. I don't want to just jump out there and make noise just to be making noise," Boehner told reporters. "Let's get to the bottom of this."

The Colombia scandal has been widely denounced by official Washington, but it's a delicate political matter in an election year with the presidency and congressional majorities at stake. All sides have praised Secret Service Director Mark Sullivan's swift action and thorough investigation, in part because he's spent significant time keeping key lawmakers in the loop. Pentagon officials, too, are investigating and are expected to brief Senate Armed Services Committee Chairman Carl Levin and ranking Republican John McCain on Wednesday.

In a similar but unrelated incident, Panetta said Tuesday that three Marines on a U.S. Embassy security team and one embassy staff member were punished for allegedly pushing a prostitute out of a car in Brasilia, Brazil, last year after a dispute over payment. Panetta, speaking in Brasilia, said he had "no tolerance for that kind of conduct."

The military investigation into the Cartagena incident is continuing.

Another Senate panel is looking for a pattern of misconduct. Sen. Joe Lieberman, chairman of the Homeland Security and Governmental Affairs Committee, told reporters on Tuesday that he'll hold hearings on the service's culture and whether clear rules exist on how employees should behave when they are off duty but on assignment.

"I want to ask questions about whether there is any other evidence of misconduct by Secret Service agents in the last five or 10 years," Lieberman said. "If so, what was done about it, could something have been done to have prevented what happened in Cartagena? And now that it has happened, what do they intend to do?" 
 

The Justice Department on Monday blocked enforcement of the voter identification law which Texas Gov. Rick Perry signed last spring, contending that it would have a discriminatory impact on Latino voters.

In a letter to Texas Director of Elections Keith Ingram, Assistant Attorney General Thomas Perez said that “according to the state’s own data, a Hispanic registered voter is at least 46.5 percent, and potentially 120.0 percent, more likely than a non-Hispanic registered voter” to lack either a driver’s license or a state-issued identification card, which would be required to vote.

Ralph Barrera / AP

Texas Gov. Rick Perry is interviewed in Austin, Texas, on Tuesday, Feb. 21, 2012.

Under section 5 of the Voting Rights Act, Texas is one of nine states that is required to get pre-approval from the Justice Department or from a federal judge prior to implementing any change in voting procures.

In his letter Monday, Perez also argued that under the Texas law, in order to get a state-issued voter identification card, a voter would need to provide two pieces of secondary identification, or one piece of secondary identification and two supporting documents. “If a voter does not possess any of these documents, the least expensive option will be to spend $22 on a copy of the voter’s birth certificate,” he said. This, Perez said, would impose a burden on Hispanic voters because many have incomes below the federal poverty line.

The Justice Department decision on Monday was expected since it had blocked a similar law in South Carolina, another state also covered by section 5 of the Voting Rights Act.

It is not the end of the battle over voter ID in the Lone Star State. 

In January, Texas Attorney General Greg Abbott asked a federal court in Washington to allow Texas to use its photo ID law. That court has yet to issue a ruling.

Abbott argued that even if the Justice Department contends that the Texas law has the effect of limiting the voting rights of those who do not possess a government-issued photo identification, “it does not do so on account of their race or color -- it does so on account of their decision not to obtain the identification that the State offers free of charge.”

Abbott also argued that other states, such as Indiana, Kansas, and Wisconsin, “have been able to enact and enforce similar laws without interference” from the Justice Department. “Yet Texas is denied that ability to implement election-fraud prevention laws. This creates a two-tracked system of sovereignty,” in which some states can enforce their photo-identification requirements, but Texas cannot, “even though all of these state laws comply with the Constitution.”

The Justice Department concluded in a Jan. 6 memo to the White House counsel that the Senate's "pro forma" sessions don't actually interrupt a congressional recess.

Because they don't, the president was entitled to exercise his constitutional power to make recess appointments, the department concluded.

President Obama used that authority last week to name Richard Cordray director of the newly formed Consumer Financial Protection Bureau. He also made additional recess appointments to the National Labor Relations Board.

"The Senate could remove the basis for the president's exercise of his recess appointment authority by remaining continuously in session and being available to receive and act on nominations, but it cannot do so by providing for pro forma sessions at which no business is to be conducted," says a memo from DOJ's Office of Legal Counsel.

The memo was released today in response to calls for a fuller explanation of the legal basis on which the White House acted.

The question, the Justice Department says, is a practical one: During these pro forma sessions, is the Senate actually able to provide advice and consent to nominations?  Obviously not, the memo says, which makes them a "recess" in name only, and not in substance.

Even so, it says, "the question is a novel one, and the substantial arguments on each side create some litigation risk for such appointments."

A senior Republican U.S. senator said Wednesday that Lanny Breuer, head of the U.S. Justice Department's Criminal Division, should step down over a troubled operation that targeted gun smuggling in Mexico.

Attorney General Eric Holder "needs to ask for Mr. Breuer's resignation and remove him from office if he refuses," said Senator Charles Grassley, in prepared remarks for delivery on the floor of the Senate.

The failures of the "Fast and Furious" program along the U.S.-Mexico border have already led to resignations of two officials: the U.S. attorney in Arizona, and the acting head of the Bureau of Alcohol, Tobacco, Firearms and Explosives.

The operation was meant to track guns as they made their way south of the border to senior members of the violent Mexican drug cartels after being bought by a so-called straw buyer. However, agents of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) rarely pursued the weapons after they were bought.

As a result, hundreds of guns are now missing, although some have been found at crime scenes on both sides of the U.S.-Mexico border.

The scandal erupted after two guns from the operation were found at the scene after a U.S. Border Patrol agent, Brian Terry, was shot dead by illegal immigrants. It was not known if the guns were responsible for the agent's death.

Grassley, the top Republican on the Senate Judiciary Committee, said Breuer hurt his own credibility by initially denying details of the program.

Then on Tuesday, Grassley said, the Justice Department refused to provide several staff members for interviews with congressional investigators, going back on what he said were previous assurances of cooperation.

Under the "Fast and Furious" program, officials allowed illegal gun purchases to proceed in the hope of gaining intelligence about the organizations buying them.

"I have long said that the highest-ranking official who knew about gunwalking in Operation Fast and Furious needs to be held accountable," Grassley said.