The members of Congress of both parties who voted for the National Voter Registration Act of 1993 — Motor-Voter — are largely to blame for both noncitizen voting’s affront to American democracy and for the lives upended when noncitizens believing themselves eligible to vote have been caught voting illegally. Those congressmen enacted a fatally flawed NVRA that not only facilitates vote fraud but also results in legal aliens mistakenly voting and putting themselves at risk of jail or deportation, despite the legislation’s flaws being pointed out at the time. |
Summary
- The Kansas Attorney General’s Office has filed felony election fraud charges against the mayor of Coldwater, Kan. — non-U.S.-citizen and Mexican national Jose “Joe” Ceballos-Armendariz — alleging that he voted three times since 2022 in violation of Kansas law.
- Voting by non-citizens is also a federal crime — and grounds of inadmissibility and deportation. Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, it is a federal crime “for any alien to vote in any election held solely or in part for the purpose of electing a candidate for … President … Member of the Senate[ or] Member of the House”. Additionally, an “alien who has voted in violation of any Federal, State, or local constitutional provision, statute, ordinance, or regulation” is inadmissible/deportable. These provisions originated in an amendment by Wyoming Sen. Alan Simpson that was approved by the Senate without controversy by voice vote. Lastly, it is a federal crime for an alien to “falsely and willfully represent[] himself to be a citizen of the United States”.
Mayor Ceballos-Armendariz’s lawyer “said Ceballos didn’t realize he wasn’t allowed to vote and will fight the charges”, remarking that “The technicality of citizenship perhaps has escaped him”. Citizenship is not a technicality.
As the Supreme Court has emphasized, “The act of becoming a citizen is more than a ritual. … A new citizen has become a member of a Nation. … The individual, at that point … is entitled to participate in the processes of democratic decisionmaking.” As Kansas Attorney General Kris Kobach remarked, “Every time a noncitizen votes, it effectively cancels out a U.S. citizen’s vote.”
- It appears that many of the aliens who have been federally prosecuted for illegal voting were lawful permanent residents who believed (or claimed to believe) that they were eligible to vote. Federal appeals courts are in agreement that aliens can be convicted for illegal voting even if they falsely believed themselves to be eligible to vote. Conviction requires knowledge that one is voting and knowledge that one is not a U.S. citizen.
- The 238 Democrats, one independent, and 20 Republicans in the House and 56 Democrats and six Republicans in the Senate who voted for the National Voter Registration Act of 1993 (NVRA) — the “Motor-Voter” law — are largely to blame for both noncitizen voting’s affront to American democracy and for the lives upended when noncitizens believing themselves eligible to vote have been caught voting illegally. They voted for a fatally flawed NVRA that not only facilitates vote fraud but also results in legal aliens mistakenly voting and putting themselves at risk of jail or deportation. Those most culpable are the congressional advocates for the NVRA who insisted (whether sincerely or not) that it would not lead to voting by noncitizens.
- What are the NVRA’s fatal flaws?
The NVRA requires states to include voter registration applications as part of applications for driver’s licenses and requires voter registration agencies that provide other service or assistance to distribute register-by-mail applications along with applications for the service or assistance. And while the NVRA requires registration applications to set forth each eligibility requirement, including U.S. citizenship, and requires applicants to sign attestations that they meet each such requirement, the Act at the same time perversely decrees that employees at voter registration agencies “shall not … make any statement to an applicant or take any action the purpose or effect of which is to discourage the applicant from registering to vote”.
Obviously, the problem with forbidding officials from making statements or taking actions “the purpose or effect of which is to discourage applicants from registering to vote” is that the officials are forbidden from saying or doing anything which might discourage aliens from voting who are not eligible to vote but don’t realize they aren’t eligible! This has led the Seventh Circuit Court of Appeal to conclude that the NVRA’s misbegotten decree “leads to unhelpful responses” to questions by confused noncitizens. The lawyer for one such noncitizen prosecuted for illegal voting asked an ICE attorney “If someone comes into the DMV wearing a T-shirt that says ‘I’m not a U.S. citizen,’ would they still be asked to vote?” According to the lawyer, the ICE attorney told him “yes”.
Yet, the chairman of the House’s Elections Subcommittee assured members during House floor consideration of the NVRA that “obviously you must be a citizen [to vote] and the [NVRA] states three times you must be a citizen”. Another House advocate assured members that “States will … easily design voter registration forms that highlight the citizenship requirement, thereby avoiding any possible registration of noneligible individuals”, and that the NVRA “has been drafted to ensure that only U.S. citizens can register to vote”. Another sarcastically dismissed concerns about vote fraud by stating “I missed the part of the motor-voter bill that allows — no, more than allows — encourages — noncitizens to vote.”
- The NVRA included no verification mechanism to ensure that persons registering to vote were U.S. citizens. As the bill’s supporters were told, it only “requires citizenship attestation … it does not require proof”. House Democrats seem to have opposed a proposed amendment providing that the NVRA would not take effect in a state until the state’s chief election official “certifies … that sufficient procedures exist … to prevent voter registration” by noncitizens. This led one member to observe that House Democrats were “prepared to … say that you have to be a citizen, but wink-wink, no one will certify it, so no one will know”, calling this “legalized voter fraud”.
- Congress should revisit the NVRA's prohibition against discouraging applicants from registering to vote to allow for discouraging non-citizens from registering. In addition, Congress should encourage, or to the extent possible mandate, states to utilize the SAVE program to verify the citizenship status of voters and registration applicants.
The Mayor of Coldwater
On November 5, Kansas Attorney General Kris Kobach announced that his office had filed felony election fraud charges against the just-reelected mayor of Coldwater, Kan. (population 800): Mexican national Jose “Joe” Ceballos-Armendariz. Kobach stated that “In Kansas, it is against the law to vote if you are not a U.S. citizen. We allege that Mr. Ceballos did it multiple times[.]” Kobach also stated that “Voting by noncitizens … is a very real problem. … Every time a noncitizen votes, it effectively cancels out a U.S. citizen’s vote.”
The State of Kansas’s complaint alleges that Mayor Ceballos-Armendariz voted illegally in November 2022, November 2023, and August 2024. It charges him with violating chapter 25-2416(a)(2) of the Kansas Statutes, which provide that “knowingly voting or attempting to vote … by a person who is not a citizen of the United States” is a felony that carries a potential penalty of up to “up to 34 months imprisonment … a fine of up to $100,000, or both fine and imprisonment”. The complaint also charges him with violating chapter 25-2411(b), which provides that “intentionally and knowingly falsely swearing, affirming, declaring or subscribing to … [s]tatements in answer to questions put to a witness concerning the qualifications of any person to vote” is a felony that carries a potential penalty of “up to 17 months imprisonment … fine of up to $100,000, or both fine and imprisonment”.
Kansas is no outlier. U.S. Rep. Jamie Raskin (D-Md.) wrote in the University of Pennsylvania Law Review when still an assistant professor at the American University’s Washington College of Law that “Arkansas became the last state to abandon noncitizen suffrage in 1926”, leaving no states to suffer noncitizen suffrage.
Voting by non-citizens is also a federal crime — and grounds of inadmissibility and deportation. On November 13, Assistant Homeland Security Secretary for Public Affairs Tricia McLaughlin stated that “[Ceballos-Armendariz] committed a felony by voting in American elections. If convicted, he will be placed in removal proceedings. … Our elections belong to American citizens, not foreign citizens.”
In apparent answer to Jacob Campbell’s query on Facebook — “[H]ow the hell does a non-citizen become mayor in the first place?!” — Caroline O’Donovan reported in the Washington Post that:
Joe Ceballos has been winning elections in this tiny ranching town for more than a decade, securing his second mayoral term in a landslide earlier this month.
Ceballos … came to Coldwater as a teenaged ranch hand. …
He was hired as a city employee as a young man and, eventually, ran for city council. His family hosts an annual mud-bogging competition [according to Wikipedia, “a form of off-road motorsport popular in the United States and Canada in which the goal is to drive a vehicle through a pit of mud”] in town.
Ceballos was granted [lawful permanent residence] in 1990, when he was about 20 years old, but didn’t apply for citizenship until this February, according to the Department of Homeland Security [DHS].
He earned a certificate in welding in 1992 … and worked on the city’s labor crew for two years before being put in charge of the water department. … Now he runs a tree service business and works as an electrical lineman in addition to his mayoral duties. …
When he first ran for city council in 2011, Ceballos told local newspaper the Western Star that he planned to focus on cleaning up the city’s lake and repairing its back alleys.
Ceballos won that election and has held public office ever since, becoming mayor in 2021.
O’Donovan reported that Ceballos-Armendariz’s “first court appearance is scheduled for Dec. 3, but in the meantime, [his attorney Jesse] Hoeme said Ceballos is ‘stepping away’ from his official mayoral duties ‘for the sake of the people of Coldwater’”.
On November 7, Britt Lenertz, president of the Coldwater City Council stated on Coldwater’s Facebook page that:
We recognize the importance of transparency and due process and are committed to ensuring that all actions taken by the City remain in full compliance with applicable laws and regulations. To that end, we are actively seeking guidance from the state level to determine the appropriate course of action moving forward. Our foremost priority is to uphold the integrity of City operations and maintain the public’s trust as this matter continues to unfold.
Citizenship Is Not a “Technicality”
Caroline O’Donovan noted that Hoeme, Ceballos-Armendariz’s lawyer, “said Ceballos didn’t realize he wasn’t allowed to vote and will fight the charges. ‘He thought he was an American. He’s always been an American. The technicality of citizenship perhaps has escaped him[.]’”
The “technicality of citizenship”?! Citizenship is not a technicality. As the Supreme Court emphasized in its 1978 decision in Foley v. Connelie:
The act of becoming a citizen is more than a ritual, with no content beyond the fanfare of ceremony. A new citizen has become a member of a Nation, part of a people distinct from others. … The individual, at that point, belongs to the polity, and is entitled to participate in the processes of democratic decisionmaking. Accordingly, we have recognized “a State’s historical power to exclude aliens from participation in its democratic political institutions,” [quoting the Court’s 1973 decision in Sugarman v. Dougall] as part of the sovereign’s obligation “to preserve the basic conception of a political community.” [quoting Sugarman in turn quoting the Supreme Court’s 1972 decision in Dunn v. Blumstein]
And, as the Supreme Court concluded in its 1982 decision in Cabell v. Chavez-Salido:
The exclusion of aliens from basic governmental processes is not a deficiency in the democratic system, but a necessary consequence of the community’s process of political self-definition. Self-government, whether direct or through representatives, begins by defining the scope of the community of the governed [and] aliens are, by definition, those outside of this community.
I don’t blame Ceballos-Armendariz for his attorney’s flippant and offensive remark. I blame his attorney.
The Reaction in Coldwater
Not to throw cold water on the indictment, but Caroline O’Donovan reported that:
Non-U.S. citizens shouldn’t be voting, residents said, but those [we] interviewed … said they hope prosecutors will decide that Ceballos … simply made a mistake and that the charges will be dropped.
With fewer than 1,000 residents, Coldwater struggles to sustain a bar or a coffee shop, and a dwindling city budget makes it difficult to fix roads or maintain the 100-year-old sewer line. Residents say they appreciated that Ceballos stepped up to address these issues.
O’Donovan reported the comments of some Coldwater residents by name:
- Dave Gerstner,“who said he played pool with Ceballos for years, said his friend shouldn’t have been voting if he isn’t a citizen[, b]ut sending him to prison isn’t ‘fair or just’ if he didn’t realize he was committing a crime”.
- Allen Davis, who “said allowing noncitizens to vote would be ‘a devastation to this country,’ but Ceballos probably just made a mistake. ‘He wasn’t here with a hand out,’ Davis said. ‘A lot of them that come today come here for the benefits they can get, for the goodies and the handouts. He wasn’t that man.’”
- TruDee Little:“‘People run for office in a town like Coldwater out of concern for the community,’ said … Little, who worked alongside Ceballos when she was the Coldwater city clerk, describing the mayor as honest and sincere.”
Federal Crimes Related to Voting by Non-Citizens
There are two primary federal crimes of relevance here, regarding unlawful voting and false claims to citizenship.
Unlawful Voting
18 U.S.C. § 611 provides that it is “unlawful for any alien to vote in any election held solely or in part for the purpose of electing a candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner”, and that “Any person who violates this section shall be fined … imprisoned not more than one year, or both.” The statute does provide an exception in instances in which:
(1) the election is held partly for some other purpose;
(2) aliens are authorized to vote for such other purpose under a State constitution or statute or a local ordinance; and
(3) voting for such other purpose is conducted independently of voting for a candidate for such Federal offices, in such a manner that an alien has the opportunity to vote for such other purpose, but not an opportunity to vote for a candidate for any one or more of such Federal offices.
False Claims to Citizenship
18 U.S.C. § 911 provides that “Whoever falsely and willfully represents himself to be a citizen of the United States shall be fined … or imprisoned not more than three years, or both.”
Grounds of Inadmissibility/Deportability Related to Illegal Voting by Non-Citizens
There are two primary federal crimes of relevance here, also regarding unlawful voting and false claims to citizenship.
Unlawful Voting
Section 212 of the Immigration and Nationality Act (INA) provides that “Any alien who has voted in violation of any Federal, State, or local constitutional provision, statute, ordinance, or regulation is inadmissible.” Congress later added an exception in the Child Citizenship Act of 2000:
In the case of an alien who voted in a Federal, State, or local election (including an initiative, recall, or referendum) in violation of a lawful restriction of voting to citizens, if each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization), the alien permanently resided in the United States prior to attaining the age of 16, and the alien reasonably believed at the time of such violation that he or she was a citizen, the alien shall not be considered to be inadmissible under any provision of this subsection based on such violation.
Section 237 of the INA contains a similar ground of deportability (for aliens who have been admitted to the U.S.).
False Claims to Citizenship
Section 212 also provides that “Any alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under [the INA] (including section 274A [relating to the unlawful employment of aliens]) or any other Federal or State law is inadmissible.” Congress added a similar exception in the Child Citizenship Act of 2000.
Section 237 also contains a similar ground of deportability.
Legislative History
The federal crimes and grounds of inadmissibility/deportability described above were enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), originating in a Senate floor amendment (No. 3728) that U.S. Sen. Alan Simpson (R-Wyo.) offered to S. 1664 on April 24, 1996.
Sen. Simpson stated during Senate floor consideration of his amendment that:
This amendment would help to guarantee that a majority of citizens of the United States, those who owe their full political allegiance to this country, retain political control of every political unit and every political issue. If aliens are allowed to vote, it becomes quite possible that a relatively small group of citizens in a particular jurisdiction could outvote a citizen majority, if the group had enough noncitizen allies. I do not feel that that is acceptable. That is not consistent with the form of government that the Founding Fathers believed to be a fundamental right of the American people.
Edward “Ted” Kennedy, Democrat senator from Massachusetts and liberal icon, stated that “I am glad to accept” the amendment and that “We can work through this and get a clearer definition as to how this interacts with Motor-Voter [the National Voter Registration Act of 1993 (NVRA)]. I completely agree with the Senator in terms of the objectives.” (Emphasis added.) The Senate agreed to the Simpson amendment by voice vote. The Senate later incorporated the text of S. 1664 into H.R. 2202. The “House recede[d] to [the] amendment” in the conference report to H.R. 2202, a modified version of which was later enacted as IIRIRA.
Thus, in 1996, the U.S. Congress on a bipartisan basis (and, at least in the U.S. Senate, with unanimous support) concluded that voting by noncitizens should be a criminal offense and that noncitizen voters deserved to be deported.
What If a Non-Citizen Voted in the Mistaken Belief that They Were Eligible to Vote?
Federal Judge James Dever III stated when sentencing a noncitizen convicted of voting in violation of § 611 that “[I]t’s … utterly inconceivable to me that I could travel to another country and think I could vote. It’s just absolutely up is down. It is just inconceivable that any rational human being could think they could just travel to some other country and vote.”1
Indeed, the NVRA requires that voter registration application forms must “include a statement that … states each eligibility requirement (including citizenship) … contains an attestation that the applicant meets each such requirement … [and] requires the signature of the applicant, under penalty of perjury”. This is in the context of the NVRA’s requirements that:
Each State shall include a voter registration application form for elections for Federal office as part of an application for a State motor vehicle driver’s license[, and]
A voter registration agency that is an office that provides service or assistance in addition to conducting voter registration shall … distribute with each application for such service or assistance … the mail voter registration application form.
So how could a non-citizen register to vote and possibly think that they are authorized to vote in a federal election? Well, Benjamin Plener Cover, associate professor of law at the University of Idaho College of Law, recently contended in an article — “Voter Fraud Mistake” in the William and Mary Bill of Rights Journal — that “[i]n some cases, a noncitizen mistakenly believes they are a citizen” and that “More commonly, the noncitizens punished for voting know they are not citizens but believe they can vote as long-time residents with [lawful permanent resident] status.”
The first § 611 case that reached a federal court of appeals resulted in the Eleventh Circuit’s 2007 decision in U.S. v. Knight (with the Supreme Court denying a petition for writ of certiorari2). The court explained that “Knight argues that § 611 violates his constitutional right to due process. … He contends that it criminalizes two innocent acts, being an alien and voting, excluding any attendant mens rea.”
Mens rea? Michael Foster, legislative attorney at the Congressional Research Service, explained that:
A crime traditionally has been understood to consist of the concurrence of both a proscribed act (the actus reus) and a “guilty mind” (or mens rea). The concept of a mental element — mens rea, scienter, state of mind, criminal intent, or an equivalent term — being necessary for a prohibited act to be sufficiently blameworthy to justify criminal punishment has endured for hundreds of years, if not longer.
The Eleventh Circuit continued:
In [Knight’s] view, the statute demonstrates Congress’s deliberate [and unconstitutional] omission of a mens rea, and therefore, this court is prevented from reading an implied mens rea into the statute. Knight goes on to argue that even if the court does incorporate a mens rea into the statute, it would have to be a specific intent crime in order to properly separate wrongful conduct from innocent conduct.
The court rejected these arguments. First, it explained that § 611 “is a general intent crime”. What is a “general intent” crime as opposed to a “specific intent” crime? Foster explained that:
In one formulation, “specific intent” denotes an intent to “achieve some additional consequence” … beyond the “commission of the proscribed act.” For example, larceny likely would be considered a specific intent crime, as it often requires obtaining control over the property of another (the proscribed act) with the intent “to deprive the owner of the stolen property permanently.” [quoting University of Illinois College of Law Professor Eric Johnson]. By contrast, in the words of [the Ninth Circuit in its 2016 decision in United States v. Lamott], “a general intent crime requires only that the act was volitional (as opposed to accidental), and the defendant's state of mind is not otherwise relevant.” [Emphasis in original.]
Cover explained that in the § 611 context, this requires “(1) knowledge that one’s conduct constitutes voting and (2) knowledge that one is a noncitizen, but not (3) knowledge that noncitizens are ineligible to vote”.
The Eleventh Circuit in Knight explained that:
“Some indication of congressional intent, express or implied, is required to dispense with mens rea as an element of a crime.” [quoting the Supreme Court’s 1994 decision in Staples v. United States] The text of § 611 … does not use the language typically associated with the creation of a specific or general intent offense because it does not utilize adverbs such as “intentional,” “knowing,” or “willful.” [citing the Supreme Court’s 1952 decision in Morissette v. United States] Given this omission, we are to presume that Congress “legislated against the background of our traditional legal concepts which render intent a critical factor.” [quoting the Supreme Court’s 1978 decision in United States v. United States Gypsum Co.] This court may “read a state-of-mind component into an offense even when the statutory definition did not in its terms so provide.” [quoting Staples]
The court concluded that “Therefore, Knight’s due process rights were not violated by a deliberate omission of a mens rea by Congress,” and § 611 is not unconstitutional merely because the congressional drafters did not specifically articulate a mens rea.”
Second, the Eleventh Circuit then “determine[ed] the appropriate mens rea to read into § 611”, citing the Eleventh Circuit’s 1997 decision in United States v. Henry for the proposition that “where a statute is silent as to intent, it becomes a question of legislative intent to be construed by the court”. In concluding that § 611 is a general intent crime, the Eleventh Circuit wrote that “While Knight maintains that we must read a specific intent mens rea into § 611 in order to properly separate wrongful conduct from innocent conduct, a general intent requirement satisfies this goal [citing the Supreme Court’s decision in Staples].” The court noted that “As a general intent crime, the government must still prove that the defendant knowingly engaged in the conduct prohibited by § 611. … This is sufficient to separate proper conduct from improper actions.”
The Seventh Circuit came to the same conclusion in its 2012 decision in Kimani v. Holder:
[Kimani] contends that § 611(a) requires proof that the alien knew that it was unlawful for him to vote. In other words, Kimani contends that § 611 is a specific-intent statute, outside the maxim that ignorance of the law is no excuse, rather than a general-intent statute, which requires only proof that the defendant performed the acts that the law forbids, understanding what he was doing. Yet § 611(a) does not contain the word “intentionally” or the slippery word “willfully[.]”... Nor does it require that any act be done “knowingly.” A statute that does not mention any mental-state (mens rea) requirement is a general-intent law. [citing the Supreme Court’s 2000 decision in Carter v. United States] No surprise, then, that the only appellate decision on the subject [referring to the Eleventh Circuit’s decision in Knight] holds that a conviction under § 611(a) does not depend on proof that the alien knew that voting is forbidden.
The Seventh Circuit noted that “Kimani's lawyer tried a variant of the argument that the agency failed to establish the required state of mind. He called it ‘entrapment by estoppel.’” The court explained that “‘Etrapment by estoppel’ has little to do with the affirmative defense of entrapment, under which a person induced by public officials to commit a crime can be convicted only if he was predisposed to commit that offense independent of the inducement.” Rather:
When a public official directs a person to perform an act, with assurance that the act is lawful under the circumstances, the person does not act with the intent required for conviction. So if a Secret Service agent asks an informant to sell some counterfeit bills to a person suspected of running a counterfeit-passing ring, the informant’s acts are justified, even though they otherwise could be described as the distribution of counterfeit currency. We have called this justification “entrapment by estoppel,” [citing the Seventh Circuit’s 1994 decision in United States v. Howel3].
The court concluded that “To make out entrapment by estoppel, Kimani needed to show that he received official assurance that voting … was lawful.” The court ruled that Kimani had not met this burden:
[Kimani’s] argument … rests on the fact that, when he applied for a driver’s license in 2003, the same form enabled him to register to vote. To do that, Kimani had to check two boxes: one representing that he is a citizen, another requesting voter registration. He checked both boxes. The form also required a signature verifying the truthfulness of all statements he made. He does not contend that any official told him that it is lawful for aliens to claim to be citizens, or that any public official directed him to register to vote.
What’s more, the officials who handled the motor-voter process worked for the State of Illinois. State officials cannot direct or excuse a violation of federal law. [citing Howell and the Seventh Circuit’s 2006 decision in United States v. Baker4] The Supremacy Clause makes federal law binding on all state actors; no employee of Illinois can give anyone a justification for disobeying a federal statute. It takes actual authority for a public official to create a defense to a criminal prosecution. … Kimani does not argue that the state officials who registered him to vote had actual authority to permit him to vote.
The court also noted that “Kimani’s lawyer hinted that he may not have read the voter-registration form before checking the boxes and signing. Yet, as we explained in [2010 in] Bayo v. Napolitano, people are bound by what they sign whether or not they read it.”
As to the authority of state officials, the Seventh Circuit explained in its companion 2012 decision in Keathley v. Holder that:
[W]hile Kimani falsely represented himself to be a U.S. citizen when registering to drive and vote, Keathley contends that she represented herself to be a citizen of the Philippines. … Neither the IJ [immigration judge] nor the BIA [Board of Immigration Appeals] determined whether Keathley is telling the truth about this. … [W]hile Kimani checked a box on the driver’s-license form claiming U.S. citizenship, Keathley contends that she left that box unchecked until the state official who superintended the process — an official knowing that she is not a citizen — asked her if she would like to vote. Keathley says that she answered “yes”. The box asserting U.S. citizenship ended up checked; Keathley says that she does not remember whether she checked the box or the state employee did so. The IJ and BIA did not decide how the box came to be checked … or whether the state official understood that Keathley is not a citizen. …
Keathley contends that, because the state official knew that she is an alien, the question about voting and the state’s decision to send her a voter registration card led her to believe that voting would be lawful. She did not know about § 611, and after she learned that aliens can't vote she asked the State of Illinois to revoke her registration (it did). Although by then she had voted, she contends that she did not violate § 611 because the state officials’ advice gave her a good defense of “entrapment by estoppel”.
The court concluded that “[i]f Keathley has a good defense, she has not violated § 611 and remains eligible for adjustment of status[]”, but that “[w]hether she has a good defense depends in part on facts that remain to be ascertained[]”, explaining:
Our opinion in Kimani observes that state motor-vehicle registrars lack authority to put aliens on the voting rolls. We did not mean, however, that motor-vehicle registrars lack all authority concerning voting. The motor-voter legislation [NVRA] authorizes officials in a department of motor vehicles to register people for federal elections. … The power to register someone supposes some authority to ascertain whether legal qualifications have been met, and officials are supposed to inform applicants about the eligibility rules for voting. … These officials thus are entitled to speak for the government on that subject. What they say is not conclusive, but the official-authorization defense does not depend on the public official being right when giving approval. Our opinion in Kimani concerned someone who represented himself to be a citizen; but we must assume that Elizabeth Keathley represented herself to be an alien. That's why (she says) she thought the official's conduct implied (though wrongly) that aliens could vote.
The litigants have not explored the extent to which officials administering the motor-voter registration procedure are authorized to interpret the terms of that legislation and the requirements of valid registration, and to give binding advice to applicants. It may well be unnecessary to address that subject (which is relevant only if, on remand, the agency credits Keathley’s statements about what occurred), and it would be imprudent to address potentially complex issues without briefs that explore them fully.
If the IJ does credit Keathley's statements about what occurred, [DHS] should give serious consideration to withdrawing its proposal that she be declared inadmissible and be removed from the United States. A person who behaves with scrupulous honesty only to be misled by a state official should be as welcome in this country in 2012 as she was when she entered in 2004. [Emphasis in original.]
Finally, the Eighth Circuit in it 2018 decision in Chernosky v. Sessions5 ruled that if an alien “knew she was ineligible to vote … and did so anyway” that “she was not entitled to an entrapment-by-estoppel defense”.
The National Voter Registration Act of 1993 (“Motor-Voter”)
As I have mentioned, the NVRA requires voter registration application forms to “include a statement that … states each eligibility requirement (including citizenship) … contains an attestation that the applicant meets each such requirement … [and] requires the signature of the applicant, under penalty of perjury”. But at the same time, the NVRA also decrees that state or local government employees at voter registration agencies who assist applicants in completing voter registration application forms and accept completed voter forms “shall not … make any statement to an applicant or take any action the purpose or effect of which is to discourage the applicant from registering to vote”. What the fudge?!
There is little explanation for this provision other than the House Administration Committee’s report stating that “A person who provides … voter registration services … shall not … make any statement to an applicant the purpose or effect of which is to discourage the applicant from registering to vote.”6 Gee, thanks for just repeating the statutory language!
The problem with forbidding officials from making any statements or taking any actions the purpose or effect of which is to discourage applicants from registering to vote was entirely foreseeable — the officials are forbidden from saying or doing anything which might discourage aliens from voting who are not eligible to vote but don’t realize they aren’t eligible!
Consider the Seventh Circuit’s 2017 decision involving the noncitizen voting ground of deportability in Fitzpatrick v. Sessions. As the court explained:
Margarita Del Pilar Fitzpatrick, a citizen of Peru, had lived in the United States for three years when she applied for a driver’s license in Illinois. She contends that when filling out the forms at the Department of Motor Vehicles she displayed her green card and her Peruvian passport — but she admits that she also checked a box claiming to be a citizen of the United States. The form sternly warns aliens not to check that box, and Fitzpatrick does not contend that she has any difficulty understanding written English. (She came to the United States in 2002 to study English in college, and after earning a certificate as a medical translator she spent some time working as an interpreter before training as a nurse.) As required by the [NVRA], the form also contained a checkbox that would lead to registration as a voter. Fitzpatrick maintains that the desk clerk asked whether she wanted to register, and when she inquired “Am I supposed to?” he replied: “It's up to you.” She checked that box, was duly registered, and in 2006 twice voted in elections for federal officials.
After discovering that Fitzpatrick had voted in a federal election, [DHS] initiated removal proceedings. [She was ordered removed,] even though she has led a productive and otherwise-unblemished life in this country, is married to a U.S. citizen, and has three U.S.-citizen children. Her children were born in Peru and naturalized after arrival. Her own 2007 application for citizenship is what brought her 2006 voting to light, when in response to questions asked of all applicants she honestly described her voting history.7
These hardly seem the words of an unsympathetic judge. But when Fitzpatrick made an “entrapment through estoppel” defense, the court rejected it, explaining that “[S]he did not make accurate disclosures when applying. She checked the box claiming U.S. citizenship. She is literate in English and has no excuse for making that misrepresentation.” The court also wrote that “[N]o one told her that aliens are entitled to vote. Indeed, no one told her that aliens are entitled to register to vote. A clerk asked whether she wanted to register and added ‘It’s up to you.’”
But the court did also write that:
That statement [by the clerk] — apparently following a script that Illinois then required clerical officials to use — was a refusal to give advice, not an assurance that it was lawful to register. [The NVRA] forbids state officials to say anything that will discourage an applicant for a driver’s license from registering to vote. … [The NVRA] leads to unhelpful responses such as the one Fitzpatrick received. What happened to Fitzpatrick and other aliens such as [Elizabeth] Keathley has led Illinois’s Secretary of State to revise the department’s Field Operations Manual to require clerks to remind applicants that citizenship is essential to voting, but the omission of that advice in 2005 still left Fitzpatrick with a noncommittal answer. [Emphasis added.]
Cover unearthed fewer than 100 § 611 prosecutions since the section’s enactment, almost all since 2004. Reviewing a number of such prosecutions in Florida, he wrote:
When asked why they voted, the [defendants] provided different responses, but they were all variations on a similar theme: confusion and a mistaken belief in some fictitious rule about eligibility. Jobero Lubin thought he was eligible to vote because he was in the naturalization process. Christiana Phillip thought that filling out a voter registration card would help her become a citizen.
The Chicago Tribune reported that Richard Hanus, Elizabeth Keathley’s attorney, “said that a common assumption … is that legal immigrants understand what they do and don’t have a right to do. [But b]ecause secretary of state officials can’t inquire about a person’s citizenship, it can lead to confusion, he said.”
In fact, Hanus said that he asked a U.S. Immigration and Customs Enforcement (ICE) counsel whether “[i]f someone comes into the DMV wearing a T-shirt that says ‘I’m not a U.S. citizen,’ would they still be asked to vote?” — in order “to highlight the flawed system”. According to Hanus, the ICE attorney responded “The answer is yes.” Further, the Tribune reported that “Hanus said he’s seen dozens of clients come into his office with some variation of Keathley’s case”, quoting him as stating “The people who I see face this problem are left feeling desperate, with severe anxiety about their future in this country[. ]They got into this situation without their choosing.”
No, it was not their choosing. It was the U.S. Congress’s choosing, perhaps lulled into complacency by the congressional advocates for the NVRA’s insistence (whether sincere or not) that it would not lead to voting by noncitizens. The primarily Democrat advocates for the NVRA went out of their way to assure skeptics that it would never encourage non-citizens to vote!
The House Administration Committee’s report on the bill (H.R. 2) stated that:
Some have noted that the requirements for obtaining a driver’s license are not the same as those for eligibility to vote, specifically, age and citizenship. The Committee would expect that any driver’s license applicant who does not meet the requirements for eligibility to vote would decline to do so. It is important, therefore, that each applicant be advised of the voting requirements and the need to decline to register if he or she does not meet the requirements. The bill provides that all registration requirements be set forth in the application to register to vote so that they will be readily available for each applicant to review during the application process.8 [Emphasis added.]
- On February 4, 1993, U.S. Rep. Al Swift (D-Wash.), chairman of the House Administration Committee’s Elections Subcommittee, stated during House floor consideration of the NVRA that:
The fact is, obviously you must be a citizen and the legislation states three times you must be a citizen. The policy will be you must be a citizen. We all support that. [Emphasis added.]
The fact is the language of this bill says that no aliens, legal or illegal, may vote. It says in three explicit places in the legislation, “You must be a citizen.” That is enforced the same way that any other requirement under our laws is enforced, exactly the same way. Nothing changes in that regard by this legislation. It does not touch in any way the basic means by which local election officials and State election officials deal with qualifications, not at all. All of the rhetoric about illegal aliens is simply a bugaboo, a Halloween boo-hoo. It is simply a scare tactic to try and scare Members of this body from doing what is good for American citizens.
- U.S. Rep. Estaban Torres (D-Calif.) stated during floor consideration that:
States will … easily design voter registration forms that highlight the citizenship requirement, thereby avoiding any possible registration of noneligible individuals. In fact, H.R. 2’s criminal penalties for false registration will prevent noncitizens from attempting to register to vote by jeopardizing their ability to ever become naturalized citizens or otherwise remain in the country. [Emphasis added throughout.]
The [NVRA] has been drafted to ensure that only U.S. citizens can register to vote. … The act explicitly states that only U.S. citizens may register to vote through its motor-voter, mail, and agency registration procedures. State and local government employees will not register ineligible voters. Workers in State motor vehicle departments and social service agencies already receive hours of training on various application procedures and eligibility criteria.
U.S. Rep. Luis Gutierrez (D-Ill.) stated during floor consideration that:
I must not read very well, because I missed the part of the motor-voter bill that allows-no, more than allows-encourages-noncitizens to vote. ... In fact, I would like to remind them of a simple fact. It is against the law for noncitizens to register in the United States today. It was illegal yesterday. It was illegal last week. It will be illegal tomorrow. Even if motor-voter passes. So let’s stop kidding each other about concerns about fraud. [Emphasis added.]
It is not as if they weren’t warned. U.S. Rep. Tillie Fowler (R-Fla.) complained during floor consideration that “While this bill requires citizenship attestation … it does not require proof.”
The House Rules Committee had agreed to allow for floor consideration of an amendment by House Minority Leader Bob Michel (R-Ill.) providing that “No person other than a citizen of the United States may be registered to vote under this Act.” The amendment also would have added a provision stating that:
This Act shall not take effect with respect to a State until the chief election official of that State certifies to the Attorney General that sufficient procedures exist in that State to prevent voter registration under the procedures provided for in this Act by persons who are not citizens of the United States.9
However, U.S. Rep. Robert Walker (R-Pa.) stated on the floor that the Democrats planned to divide the amendment into two parts, “one to make sure that citizens only can be registered, and also a section that would say that has to be certified”. Walker concluded that the NVRA’s omission of a certification requirement regarding sufficient procedures being in place to prevent noncitizen voting would constitute “legalized voter fraud”:
What [the Democrats] would do is say they will vote for the idea that people have to be citizens, but then they are going to vote against the certification. Understand what that means. What they are prepared to do is say that you have to be a citizen, but wink-wink, no one will certify it, so no one will know. Well, this is in reality something that should be called for what it is, legalized voter fraud.
Walker concluded that “If you want to know what is sick about the Congress, look at what the Democrats are prepared to do on the upcoming Michel amendment.”
Rep. Swift’s defense was that:
[T]he Michel amendment’s second portion is what is fraudulent, because what it does is say nothing in this bill will go into effect until the State sends the certification to the Attorney General, but it provides no deadline {which he ever has to do that}. Under the guise of a hot button political issue, this is simply an effort to eviscerate the central purpose of the bill, pure and simple.
In any event, for some reason Minority Leader Michel never offered his amendment. U.S. Rep. Bob Livingston (R-La.), ranking Republican of the Elections Subcommittee, said that Michel “is not present and does not intend to appoint a designee for the purpose of offering such an amendment”.
In the House, the NVRA’s conference report passed by a vote of 259-164 (Democrats voting 238-14, Independent Bernie Sanders (I-Vt.) voting aye, and Republicans voting 150-20). In the Senate, the conference report passed by a vote of 62-36 (Democrats voting 56-0 and Republicans voting 36-6).
Conclusion
The 238 Democrats, one independent, and 20 Republicans in the House and the 56 Democrats and six Republicans in the Senate who voted for the NVRA are largely to blame for both noncitizen voting’s affront to American democracy and for the lives upended when noncitizens believing themselves eligible to vote have been caught voting illegally. These members of Congress voted for a fatally flawed NVRA that not only facilitates vote fraud but also results in legal aliens mistakenly voting and putting themselves at risk of jail or deportation, despite the legislation’s flaws being pointed out to its supporters.
Vicki Reed Hamilton hypothesized on Facebook that Mayor Ceballos-Armendariz “may have put in more work and [been] smarter at it than many US-born politicians”. Her hypothesis is certainly bolstered by the words and deeds of those members of the U.S. House and Senate who voted for, and worse, advocated for, the NVRA.
Congress should revisit the NVRA's prohibition against officials “mak[ing] any statement … or tak[ing] any action the purpose or effect of which is to discourage … applicant[s] from registering to vote” to allow for discouraging non-citizens from registering. In addition, Congress should encourage, or to the extent possible mandate, States to utilize the SAVE (Systematic Alien Verification for Entitlements) program to verify the citizenship status of voters and applicants to register.
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