A major voting-law case that the Supreme Court looks likely to take next term, Kobach v. Election Assistance Commission, sets out a dispute between states and the federal government over whether Kansas can require inclusion of a proof-of-citizenship requirement on the National Mail Voter Registration Form. As the name suggests, this form is a single document that can be used nationwide to register to vote, with varying instructions for each state; the Election Assistance Commission (EAC) is a federal agency whose responsibilities include creating and administering this form.
Kris Kobach, Kansas’s secretary of state and a litigator with the Immigration Reform Law Institute, wants the EAC to accommodate Kansas law, which requires “satisfactory evidence of United States citizenship” in the state’s registration process. Traditionally, liberal groups oppose requiring proof of citizenship in elections, and the EAC rejected Kobach’s request, calling it “discriminatory and unfair.” But given the effect that noncitizen voting has on canceling citizen votes, in particular conservative ones, it’s Washington’s refusal to cooperate that may be truly discriminatory. Last year a federal circuit court ordered the EAC to include the proof-of-citizenship requirement, but an appeals court overruled the decision. Now it seems likely that the Supreme Court will resolve the matter.
As Kobach states in petitions for Kansas and co-plaintiff Arizona, maintaining confidence in our voter-registration system — in this case, by removing ineligible voters from the voter rolls — is central to the National Voter Registration Act, the 1993 law that created the standard federal registration form. But it’s the law’s other provisions, on expanding ballot access, that seem to get all the attention, and the EAC barely mentioned the NVRA’s election-integrity goals in its 40-page decision denying Kobach’s request.
With the NVRA’s passage, Congress intended to create and maintain a system that guarantees that voters are actually eligible to vote, a requirement that has taken on far greater importance today. America is by far the world’s biggest importer of people, and its foreign-born and illegal-alien populations have never been higher. According to voting-law expert Hans von Spakovsky, “noncitizen voting is likely growing at the same rate as the alien population in the United States.” And as more states give driver’s licenses to illegal aliens and the 7 million beneficiaries under DACA and DAPA become eligible for these and other federal ID documents, voter fraud is likely due for a big increase over the next few cycles.
In testimony before the House Oversight Committee last month, von Spakovsky said it is “indisputable” that noncitizens are voting. Right now, the only required verification is that would-be voters must sign an oath on the federal registration form stating that they are U.S. citizens. But to expect such an “honor system” to be followed by illegal aliens is absurd. Since illegal aliens break a myriad of laws when they enter, settle, and find work in the country — see the Center for Immigration Studies’ survey of some of those laws here — it’s difficult to imagine that the rules against making false attestations on government forms will seriously deter all of them from voting, especially in elections that involve ramping up government programs or increasing benefits to illegal aliens. This is particularly true in the case of illegal-alien activists who engage in “civil disobedience” and feel they’re entitled to U.S. citizenship anyway. Given all this, it’s hardly surprising that 39 percent of Americans think our elections are unfair and only 20 percent believe proof of citizenship shouldn’t be required for voter registration.
Liberal advocates have long said that the wishes of states such as Kansas and Arizona to deviate from this “honor system” frustrate Congress’s intention for the NVRA to “streamline registration” and make it essentially uniform among the states. In the Court’s 2013 decision in Arizona v. Inter-Tribal Council, however, Justice Scalia, writing for the majority, maintained that states can indeed request from the EAC that additional state-specific requirements be accommodated. The Tenth Circuit in the Kobach case followed this by stating that if “substantial evidence” of voter fraud is offered to the EAC, changes to the federal form must be entertained.
Evidence of noncitizen voting is indeed “substantial.” Kris Kobach, testifying before the House Oversight Committee last month, noted a 1997 case in which certain Midwest meatpacking interests (an industry that’s long been a massive employer of illegal-alien labor) coordinated 50 noncitizen workers to register and vote against a Kansas county referendum that would increase regulation of the industry.
Without backing up its decision to reject Kansas’s request for proof of citizenship, the EAC found that Arizona’s specific examples of voter fraud weren’t “substantial” enough. But any amount of uncovered voter fraud should be taken extremely seriously. After the recent amnesty announcements, Ohio’s secretary of state, Jon Husted, sent a letter to the White House noting that in just the past two years over 70 elections in his state had been tied or decided by a single vote — and that’s just in Ohio. In a decision involving voter ID in Indiana, a federal court held that even though state officials there failed to show concrete evidence of voter fraud, the state still had a compelling interest to create safeguards because it has occurred “in other parts of the country” and “the risk of voter fraud [is] real [and] it could affect the outcome of a close election.”
Examples of voter fraud around the country are indeed legion.
Examples of voter fraud around the country are indeed legion. Professors from George Mason University and Old Dominion University have estimated that nearly 100,000 noncitizens voted in the 2008 and 2010 federal elections. Von Spakovsky says hundreds of thousands of cases of noncitizen voting have been found in Florida, California, and Illinois, states with some of the highest illegal-alien and foreign-born populations.
Despite the discoveries of noncitizen voting, says von Spakovsky, few are ever prosecuted. During the Clinton administration, the INS refused to investigate noncitizen voting in Dallas because, according to officials, “there could be tens of thousands [of illegal voters] in places like New York, Chicago or Miami” and such an investigation could “open a Pandora’s Box.”
Democrats’ motivation for not enforcing laws against noncitizen voting is part of their general push for open borders. The large majority of noncitizens and illegal aliens are Hispanic, and they’ve reliably voted 2-to-1 Democratic since 1980, when such statistics were first compiled. Allowing not-yet-naturalized and illegal aliens to vote helps Democrats win elections. Political disenfranchisement through “demographic engineering” unfortunately enjoys a lot of precedent; see economics professor Milica Bookman’s study on the topic. One example includes the Citizenship USA program, which Rahm Emanuel, then an aide to President Bill Clinton and now mayor of Chicago, designed in order to slash the processing times on naturalization applications before the 1996 elections. Another involves former members of Tony Blair’s Labor government, who admitted to having dramatically increased immigration levels in the 1990s and 2000s in order to dilute the predominantly white Tory vote.
The question, then, for advocates against proof of citizenship in elections is: Who are the real victims of so-called “voter suppression”?
— Ian Smith is an attorney in Washington, D.C.