America First Legal Sends All 50 States a Plan for How to Use Existing Federal Law to Prevent Foreign Nationals from Illegally Voting in American Elections

Today, America First Legal (AFL) sent a letter to the chief election official of all fifty States, with a copy to each Governor and Attorney General explaining how they can use two key existing federal laws to obtain information from the U.S. Department of Homeland Security about the citizenship or immigration status of any individual for “any purpose authorized by law.” Ensuring the integrity of voter rolls and investigating whether to remove potentially ineligible voters from voter rolls is undoubtedly a “purpose authorized by law,” and therefore, these laws can serve a vital function in providing States and localities with the information that they need to prevent aliens from voting. 

The Problem: The issue of noncitizens voting in federal elections can be complex–including what States are and are not allowed to do when voter applicants use the federal form:

• Federal law prohibits foreign nationals from voting or registering to vote in federal elections.

• Federal law also imposes upon States an obligation to conduct voter list maintenance. 

• The U.S. Election Assistance Commission (EAC) created a federal voter registration form that does not require applicants to demonstrate proof of citizenship. Instead, it merely requires voter registrants to sign a form “under penalty of perjury,” swearing or affirming that “I am a United States citizen.”

• The Supreme Court of the United States previously held that because the National Voter Registration Act (NVRA) requires that States must “accept and use” the EAC form–which does not require documentary proof of citizenship–then “the NVRA forbids States to demand that an applicant submit additional information beyond that required by the Federal Form.”

• The result is that, under current law as interpreted by the Supreme Court, anyone can register to vote using the EAC Federal Form without providing documentary proof of citizenship.

• This outrageous state of affairs, which is completely contrary to common sense and the practices of other countries across the world, has led to numerous bills being introduced to correct the situation at the point of voter registration—such as the SAVE Act. Such bills are essential to protect the integrity of our elections. This plan provides something that States can do NOW until legislation like the SAVE Act becomes law.

• Further, aside from the weaknesses in the EAC Federal Form, there are gaps and loopholes in the voter registration process in States that do not (or did not in the past, particularly prior to the requirements of the REAL ID Act of 2005 related to driver’s licenses) require documented proof of citizenship. 

• Even DHS’s Systematic Alien Verification for Entitlements (SAVE) program, which many states use in various ways to determine eligibility for access to benefits for aliens in the United States, has critical flaws that make it unworkable for most States and localities to use to verify a voter registrant’s citizenship status.

• Most notably, SAVE requires users to submit an Alien Registration Number or some other DHS identifier to run queries through the system–something that States and localities do not have when registering someone to vote. 

Accordingly, under the status quo, States and localities have generally been unable to ensure that aliens are not registered to vote and that they ultimately do not vote in federal elections.

  The Solution:

Two federal statutes that have been on the books for nearly three decades allow states to obtain information about the citizenship or immigration status of any individual for any lawful purpose. Specifically, 8 U.S.C. § 1373(c) provides that (the reference to the former Immigration and Naturalization Service, abolished twenty-three years ago, now means the Department of Homeland Security):

Each statute makes clear that States and localities can submit a request to DHS to obtain the citizenship or immigration status of any individual “for any purpose authorized by law.” And further, not only can they request the information, but DHS “shall respond” to such a request, and they cannot be prohibited or restricted from receiving that information. 

As explained above, federal law unambiguously requires that voters in federal elections be United States citizens and prohibits all foreign nationals, even those who are lawfully present in the United States, from registering to vote or voting. Federal law also imposes on States the duty of ensuring that ineligible voters are removed from voter rolls. Also, many States impose citizenship requirements under State law, and 8 U.S.C. § 1644 confers on States unrestricted authority to obtain information about the immigration status of aliens in the United States. Therefore, it is a “purpose authorized by law” under 8 U.S.C. § 1373(c) for a State to ask DHS about the citizenship status of presently registered voters.

Accordingly, States and localities should submit requests to DHS to verify the citizenship or immigration status of registered voters on voter rolls where there are any reliable indicators that a voter may not be a U.S. citizen.