Disputes about how America votes have raged since the 2020 pandemic-driven expansion of vote-by-mail.
While mail balloting has continued to stir controversy, now noncitizen voting has taken center stage. Debate surrounding the issue will likely soon culminate as Congress prepares to consider the SAVE Act, which aims to block noncitizen registration and voting.
To some, the legislation is a solution in search of a problem. They say noncitizen voting is illegal in federal and state elections, that federal law requires most states include on their registration applications a sworn statement affirming citizenship, and that penalties for noncitizen voting are severe enough to deter it.
These arguments ignore the fact that America’s registration system lacks adequate defenses beyond deterrence, an applicant’s honesty, and noncitizens’ assumed disinterest in voting. These omissions are certainly intentional. One cannot dispute the reality that we are not equipped to screen out those noncitizens who – either wittingly or unwittingly – register to vote.
Our existing voter registration process largely relies on an honor system. There are simply no comprehensive federal standards for verifying citizenship – either by requiring that applicants provide proof of it at the front end or for officials to verify it using governmental databases on the backend. In fact, federal law undermines states who attempt to ensure only citizens register and gives a free pass to those whose policies enable it.
A chief culprit is the National Voter Registration Act (NVRA), also known as “Motor Voter,” an antiquated federal law that requires most states register individuals who visit the DMV and other government agencies. Congress drafted the NVRA so poorly that states interpret it to require their agencies offer voter registration to all customers, including those officials know or suspect are noncitizens.
Some states such as California, Illinois, and Oregon have also implemented a turbo-charged Motor Voter process that automatically registers those who appear in their state DMV databases. These systems have proven sloppy at best, and reckless at worst, allowing the automatic registration of thousands of noncitizens, proving that states have no reliable method of verifying the citizenship of would-be voters. Just recently, Oregon announced that more than 1,600 noncitizens were registered through automatic registration, and referred three to prosecutors for illegal voting. Even the traditional Motor Voter process in Pennsylvania resulted in the registration of 8,700 noncitizens over a several year period.
The NVRA does nothing to stop this. Worse, the Supreme Court has interpreted the law to severely restrict states from requesting proof of citizenship when voters register. Some, such as Arizona, have attempted to find workarounds, but it has been a challenge in practice. An important pending lawsuit will decide whether Arizona can maintain meaningful safeguards to ensure citizen-only voting or whether courts will read the NVRA and other federal laws to essentially foreclose those efforts.
Another federal law, the Help America Vote Act (HAVA), at least aims to require officials to verify registrants’ identity, but it too falls short. HAVA requires individuals to provide their Driver’s License number or last four Social Security digits when registering and that officials “match” it with information in DMV or Social Security Administration (SSA) databases. That may seem like a good start, but even though SSA and DMV have citizenship information on file, HAVA does not require either agency to provide it to election officials during the matching process.
And let’s face it, government agencies aren’t going to do much more than the legally required minimum. SSA does not provide citizenship information during the HAVA matching process and the only existing federal resource is the Department of Homeland Security’s “SAVE” database that a few states use to identify noncitizens. SAVE has major potential, but has limited current utility for various reasons, one being that officials must possess a specific identifying number issued to noncitizens in order to verify their citizenship status.
Some states’ DMVs do provide election officials with lists of noncitizens, but they are incomplete, and cooperation is uneven among the states. The NVRA turned DMVs into America’s main registration hubs, but they are reluctant participants and are typically uninterested in doing no more than what the law requires.
Naysayers will point to the serious criminal penalties for noncitizens registering and voting but cannot deny the very unserious safeguards preventing this from happening. It is imperative that federal policymakers fix the NVRA and HAVA and streamline access to federal and state records to empower election officials to ensure only eligible citizens can participate in our elections.
Justin Riemer is Senior Advisor and Counsel to Restoring Integrity and Trust in Elections (RITE) and a partner at First Street Law.
https://www.realclearworld.com/articles/2025/03/19/noncitizen_voting_in_us_elections_1098631.html
