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October 2012 - Volume 18, Number 4


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States Fight Back: Non-Citizen Voters Diluting the Rights and Privileges of Citizenship

by Jessica Vaughan, Director of Policy Studies
Center for Immigration Studies


One of the latest skirmishes in the federal-state boundary wars is the efforts by state electoral officials to vet voter registration lists to prevent non-citizens from registering and casting ballots. Interestingly, it is once again the states that are demanding that the distinction between alienage and citizenship be enforced while the federal government again has acted to frustrate state efforts through denial of access to information and the filing of lawsuits.


Throughout American history, in keeping with established principles of national sovereignty, a bright line has been established by the Constitution between citizens and aliens with respect to the rights and privileges accorded to each, including the right to vote, a privilege reserved solely for citizens. The Constitution also apportions to the states the right to establish laws governing the electoral process for members of both houses of Congress. Yet some states have encountered resistance in attempting to verify the status of potentially ineligible non-citizen voters they have discovered on their registration lists.


The foundation for the most recent skirmish was laid in early 2011 when several states, including New Mexico and Colorado, indicated their intent to check statewide voter lists to ensure that no individuals were enrolled who had no right to vote. The checking of statewide voter lists was driven by findings of a surprisingly large number of potentially fraudulent voters.


Efforts to uncover voter fraud involving aliens are not a new phenomenon, but date back to the 1990s. A June 2005 report from the Government Accountability Office (GAO) identified the possibly significant scope of the problem, finding that up to 3 percent of individuals called for federal jury duty from voter registration lists in one district were not U.S. citizens. Ineligible voters had been detected in tightly contested elections in California and Texas in the 1990s.


A state of Colorado investigation found nearly 12,000 cases of individuals who were non-citizens when applying for driver’s licenses, but who later registered to vote. They found that about 5,000 actually voted in the 2010 election. To be sure, many of these were resident aliens who could have naturalized before registering to vote. Generally, resident aliens can naturalize as early as three to five years after admission, if they meet other requirements such as good moral character, English competency, etc. But a significant number of the other non-citizens who registered to vote were temporary residents, such as students or guestworkers, and probably could not have naturalized.


Before taking action, Colorado asked for help from the federal government, specifically the Department of Homeland Security (DHS), which maintains immigration and naturalization records, to determine which of the apparent non-citizens who had registered and even voted were ineligible, and which had become citizens. Under federal law (Title 8, Section 1373) DHS is obligated to respond to state and local agencies seeking information about an individual’s immigration or citizenship status. But DHS balked, despite the clear obligation stipulated by law.


The agency sat on Colorado’s request for more than a year before responding that they needed yet more time to answer. Their reluctance was based on circular logic, essentially saying: “you have no absolute evidence that there is significant fraud in your voter lists because you don’t have access to the systems you need to find out; therefore, you don’t get substantial proof that there is a problem; ergo you shouldn’t get access to those systems, and you need to drop this.”


In Florida, state officials developed a preliminary list of about 180,000, later refined to 2,700 apparent discrepancies, which was sent to local electoral officials for further review and inquiry. It also was refused assistance from DHS. Eventually the Department of Justice (DOJ) filed a lawsuit in federal court, threatening counties who pressed forward with inquiries. Some went ahead anyway, resulting in the identification of nearly 100 noncitizens, according to media reports. The DOJ lawsuit was dismissed in a federal district court, finally prompting DHS to agree to partially vet voter lists with their records.


Not surprisingly, polling data has found strong public support for Florida’s efforts to vet voter registration lists, despite the frequently negative tenor of media coverage, for example by referring to them as “purges.” A June Quinnipiac University poll found that three-fifths of Floridians approved of state officials’ investigations.


Last spring the Iowa Secretary of State initiated a similar request to DHS for the official citizenship data after a review of driver’s license applications turned up about 3,500 names of possible non-citizens who had registered and voted. The Iowa ACLU has filed a lawsuit to try to block the review. Meanwhile, in September, the state criminal investigators arrested three individuals (two Canadian and one Mexican), from Council Bluffs, Iowa, on felony voter fraud charges. In Iowa, such fraud is considered perjury, and punishable by up to five years in prison and a $7,500 fine.


Federal law specifically prohibits and criminalizes false claims to U.S. citizenship and voting by ineligible aliens. Congressional intent to see aliens prosecuted for voter fraud was reiterated as recently as the Help America Vote Act of 2002. Yet no U.S. Attorney’s Office (USAO) appears to have initiated any effort to prosecute aliens for voting. Nor has the Department of Homeland Security (DHS) initiated the deportation of aliens who have registered or voted illegally, which it can do independently of a prosecution by the USAO or state prosecutors.


The Help America Vote Act (HAVA) provided a basis for each state to develop and maintain a statewide voter registration list, with grant monies and a set of standards to support this effort.


There are relatively easy steps which can be taken to ensure progress on voting integrity. First, vetting efforts should be systematized so that they are routine, expected, and transparent. This would include “front-end” screening and on-going list maintenance.


Second, technology should be used wisely and the more error-prone biographic screening should be minimized by the use of biometric screening tools such as digital photographs, as these are already part of the DHS records.


Last, federal-state cooperation should be promoted, with DHS assisting states by providing information on non-citizens and reviewing state efforts for fairness and consistency with civil rights statutes. The federal government should also facilitate efforts to correctly assess individuals’ citizenship status and right to vote, particularly at polling places. This can be done through issuance of U.S. citizen identification cards to newly naturalized and derivative citizens; and through preparation and distribution of a pamphlet that clearly identifies and provides photos of various forms of citizenship and naturalization documents.


If, as this administration wants us to believe, the federal government is truly responsible for matters of immigration and citizenship, and if they want scrutiny of state voter lists done in a responsible, even-handed, apolitical, and racially neutral manner, then they need to quit impeding state efforts to ensure that there is integrity in their voter files.


Efforts to vet voter registration rolls should not be thought of as a numbers game requiring evidence of a large volume of violators to justify the time and expense, and they should not be referred to disparagingly as “purges.” The integrity of electoral lists should be beyond question, because there are few rights so important to citizens as the right to vote.


If we are so lax as to permit resident aliens to vote, then what is the impetus for long-time, eligible residents to take the final step of naturalization?


Moreover, to permit aliens to vote because of negligence or indifference is to cede to them the right to choose our leaders in close elections.


Reprinted with permission of CIS and the author. Originally published as a “Backgrounder,” September 18, 2012, <>.


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