[1] Gov't Accountability Office, Elections: Additional Data Could Help State and Local Election Officials Maintain Accurate Voter Registration Lists 42 (2005).
[2] Steven Camarota, Ctr. for Immigr. Stud., Immigrants in the United States, 2007: A Profile of America's Foreign-Born Population 31 (2007).
[3] Crim. Div., Pub. Integrity Section, U.S. Dep't of Just., Election Fraud Prosecutions & Convictions: October 2002- September 2005 (2006).
[4] See U.S. Dept. of Just., Federal Prosecution of Election Offenses 66 (7th ed. 2007), available at /static/reportimages/2DD52808AE0A9319C365A2F8E1215413.pdf; 18 U.S.C. § 611 (2008).
[5] For example, non-citizens can vote in local elections in Chevy Chase and Takoma Park, Maryland. See Robert Redding, Jr., Purging Illegal Aliens from Voter Rolls Not Easy; Maryland Thwarted in Tries So Far, Wash. Times, Aug. 23, 2004.
[6] Justin Levitt, Brennan Ctr. for Just., The Truth About Voter Fraud 18 (2007), available at /static/reportimages/2A42DB41ACB73C9DBE32FD3F31D9CC4D.pdf.
[7] Another problem not discussed in this paper is the inclusion by the Census of non-citizens, legal and illegal, in apportionment, which leads to the misallocation of congressional seats in the U.S. House of Representatives. This causes states such as Indiana, Michigan, Montana, Oklahoma, Pennsylvania, Wisconsin, Kentucky, and Mississippi to have one less seat than they should and states such as Texas, New York, California, and Florida to gain seats they would not have if only citizens were counted. This represents an obvious and clear Equal Protection problem-a violation of the principle of "one man, one vote"-since it takes fewer votes to be elected to Congress in districts with large numbers of non-citizens. See Dudley L. Poston, Jr., Steven A. Camarota, & Amanda K. Baumle, Ctr. for Immigr. Stud., Remaking the Political Landscape: The Impact of Illegal and Legal Immigration on Congressional Apportionment 1 (2003).
[8] Daren Briscoe, Non-citizens Testify They Voted in Compton Elections, L.A. Times, Jan. 23, 2002, at B5.
[9] A judge's removal of the mayor from office was later overturned, but the removal of a councilwoman who participated in non-citizen voter fraud was upheld. See Bradley v. Perrodin, 106 Cal. App. 4th 1153 (2003), review denied, 2003 Cal. LEXIS 3586 (Cal. 2003); Robert Greene, Court of Appeal Upholds Perrodin Victory Over Bradley in Compton, Metro News-Enter., March 11, 2003; Daren Briscoe, Bob Pool & Nancy Wride, Judge Voids Compton Vote, Reinstalls Defeated Mayor, L.A. Times, Feb. 9, 2002.
[10] Judge Voids Compton Vote, Reinstalls Defeated Mayor, supra note 9.
[11] See H.R. Doc. No. 105-416 (1998).
[12] The Committee found "clear and convincing" evidence of 624 non-citizens voting but only "circumstantial" evidence of another 196 non-citizens voting. Thus, the Committee did not include the 196 in its tally of invalid votes. Id. at 15.
[13] Id.
[14] The margin is just 35 votes if one includes the 196 non-citizens found by the Committee based on "circumstantial" evidence.
[15] Press Release, California Sec'y of State, Jones Releases Report on Orange County Voter Fraud Investigation (Feb. 3, 1998).
[16] Richard Hasen, a professor at Loyola Law School, doubts that illegal aliens register to vote because "committing a felony for no personal gain is not a wise choice." Jessica Rocha, Voter Rolls Risky for Aliens: Non-citizens' Registering Is a Crime; 4 Cases Turn up in N.C., News & Observer, Dec. 7, 2006.
[17] Gov't Accountability Office, supra note 1, at 60.
[18] In a typical example, voter registration cards are listed as an acceptable secondary source document to prove identity when obtaining a driver's license in Maryland. See Maryland Motor Vehicle Association, Sources of Proof,
http://www.marylandmva.com/DriverServ/Apply/proof.htm (last visited July 7, 2008).
[19] 8 U.S.C. § 1324a (2008).
[20] U.S. Citizenship and Immigr. Serv., Form I-9, Employment Eligibility Verification, /static/reportimages/58D2A5EEED8FA592941127875FAE6A07.pdf (last visited July 7, 2008).
[21] See In Re Report of the Special January 1982 Grand Jury 1, No. 82 GJ 1909 (N.D. Ill. Dec. 14, 1984), at 8-9.
[22] See Douglas Frantz, Vote Fraud in City Outlined at Hearing, Chi. Trib., Sept. 20, 1983, at A1; Hans von Spakovsky, The Heritage Foundation, Where There's Smoke, There's Fire: 100,000 Stolen Votes in Chicago (2008), available at
http://www.heritage.org/Research/Legalissues/lm23.cfm.
[23] Desiree F. Hicks, Foreigners Landing on Voter Rolls, Chi. Trib., Oct. 2, 1985.
[24] 8 U.S.C. §§ 1373(a), (c). Given the requirements of this statute, the initial refusal of the Justice Department and the INS to comply with "numerous requests from the Committee and California election officials to provide citizenship data on individuals" in the Dornan-Sanchez investigation was inexplicable; the Attorney General either made a basic legal error or decided, for political reasons, not to cooperate in an investigation that could have thrown out the Democratic winner of a congressional race. See H.R. Doc. No. 105-416, at 13 (1998).
[25] Robert Redding, Purging Illegal Aliens from Voter Rolls Not Easy; Maryland Thwarted in Tries So Far, Wash. Times, Aug. 23, 2004.
[26] Id.
[27] See Letter of March 22, 2005, from Sam Reed to Robert S. Coleman, Director, Seattle District Office, USCIS (Mar. 22, 2005).
[28] INS Hampers Probe of Voting by Foreigners, Prosecutor Says, Houston Chron., Sept. 20, 1997. The investigation was started when a random check by local INS agents found 10 non-citizens who had voted in just one 400-person precinct, and the case was eventually turned over to the local district attorney for prosecution. The government, however, refused to expand the probe to cover the full country as requested by the agents, who claimed that the probe was halted because of the supervisor's fear of the potential "political ramifications." See Frank Trejo, Internal Strife Embroils Dallas INS Office-Local Agents' Whistle-Blowing Leads to Far-Flung Controversy, Dallas Morning News, March 8, 1998; Dena Bunis, Dallas INS' Probe of Electorate Echoes Here: Fallout from the Dornan-Sanchez Inquiry Sparks an Internal INS Debate Over a Texas Computer-Match Investigation, Orange County Reg., June 5, 1997.
[29] Ruth Larson, Voter-Fraud Probe in Dallas Runs into INS Roadblock: Agency Denies It Should Have Further Aided U.S. Attorney, Wash. Times, Sept. 25, 1997.
[30] On March 1, 2003, the Immigration and Naturalization Service was split into two different divisions of the new Department of Homeland Security. USCIS is responsible for legal immigration and naturalization functions, while ICE is responsible for enforcing immigration and customs laws, including against illegal aliens.
[31] Christina Bellantoni, Little to Stop Illegal Aliens from Voting, Wash. Times, Sept. 24, 2004, at A1.
[32] Criminal Div., supra note 3.
[33] Id.
[34] John Fund, Stealing Elections: How Voter Fraud Threatens Our Democracy 1 (2004); see also Kathleen Hunter, States Slow to Give Driver's Licenses to Illegal Aliens, Stateline.org, July 1, 2004.
[35] Karen Saranita, The Motor Voter Myth, Nat'l Rev., Nov. 11, 1996, at 42.
[36] Id.
[37] Id.
[38] Affidavit of Nelson Molina, H.R. Doc. No. 105-416, at 181 (1998). Molina's wife was in the meeting with the field director and filed a supporting affidavit.
[39] Non-Citizen Voting and ID Requirements in U.S. Elections: Hearing Before the Committee on House Administration, 109th Cong. (2006) (statement of Paul Bettencourt, Harris County Tax Assessor-Collector and Voter Registrar).
[40] Joe Stinebaker, Loophole Lets Foreigners Illegally Vote; 'Honor System' in Applying Means the County Can't Easily Track Fraud, Houston Chron., Jan. 16, 2005.
[41] Guillermo Garcia, Voter Fraud Case Takes a New Twist, Express-News, Sept. 12, 2007; Jim Forsyth, Hundreds of Non Citizens Have Registered to Vote in Bexar County, 1200 WOAI, May 16, 2007.
[42] Interview with Kevin Tyne, Deputy Sec'y of the State of Arizona (May 27, 2008).
[43] AZ to Seek Dismissal of Challenge to Voter ID Law, KTAR 92.9 FM, May 26, 2008.
[44] See Purcell v. Gonzalez, 549 U.S. 1, 3 (2006).
[45] AZ to Seek Dismissal of Challenge to Voter ID Law, supra note 43.
[46] Securing the Vote: Arizona: Hearing Before the Committee on House Administration, 109th Cong. (2006) (statement of Andrew P. Thomas, Maricopa County District Attorney); see also Transcript of Southwest Conference on Illegal Immigration, Border Security and Crime, May 16, 2006.
[47] Id.
[48] Id.
[49] Press Release, California Sec'y of State, Official Status Report on Orange County Voter Fraud Investigation (Feb. 3, 1998).
[50] U.S. Const., art. I, § 2, amend. XVII.
[51] U.S. Const., art. II, § 1, cl. 2.
[52] See U.S. Dep't of Just., supra note 4, at 66.
[53] An exception exists if the election is held partly for some other purpose, the alien is authorized to vote for such other purpose under a state or local law, and that voting is conducted "independently of voting" for candidates for federal offices. 18 U.S.C. § 611 (2008).
[54] 42 U.S.C. §§ 1973gg-3(c)(2)(C), 1973gg-5(a)(6)(A)(i), 1973gg-7(b)(2) (2008).
[55] 42 U.S.C. § 15483(b)(4)(A)(i) (2008).
[56] 42 U.S.C. § 1973gg-10(2) (2008).
[57] 42 U.S.C. § 1973gg-3 (2008).
[58] Daniel Vock, Tighter License Rules Hit Illegal Immigrants, Stateline.org, Aug. 24, 2007; Kathleen Hunter, States Slow to Give Driver's Licenses to Illegal Aliens, Stateline.org, July 1, 2004.
[59] Juan Elizondo, Jr., Agency Accused of Misusing Law, Austin Am.-Statesman, June 27, 1997.
[60] Letter from Joseph D. Rich, Chief, Voting Section, Civ. Rts. Div., U.S. Dep't of Just., to Donald H. Dwyer, Jr. (Aug. 24, 2004), available at
http://www.usdoj.gov/crt/voting/hava/MD_ltr2.htm. In my discussions with election officials when I was at the Justice Department, it seemed that they were very concerned about being sued by the Department of Justice under the NVRA for not fully complying with the driver's license voter registration provisions. Most state officials found it easier and less risky to register all driver's license applicants regardless of their citizenship status.
[61] Interview with Don Dwyer, Maryland Delegate (June 23, 2008).
[62] Off. of the Legis. Auditor Gen., State of Utah, ILR 2005-B, February 8, 2005; Deborah Bulkeley, State Says 14 Illegals May Have Cast Ballots, Deseret Morning News, Aug. 8, 2005. At least 20 of the registered voters were under deportation orders.
[63] Bill Would Change Voter Registration Rolls, Associated Press, Feb. 7, 2006.
[64] 42 U.S.C. § 15483(b)(4)(A) (2008).
[65] See Ohio Sec'y of State, Directive No. 2004-31, Sept. 7, 2004; Letter from Chris Nelson, South Dakota Sec'y of State, to County Auditors (Oct. 25, 2004); Letter from Thomas J. Miller, Iowa Att'y Gen., to Chester J. Culver, Iowa Sec'y of State (Oct. 20, 2004).
[66] 42 U.S.C. § 15483(b) (2008).
[67] 42 U.S.C. § 15483(a)(5) (2008).
[68] 42 U.S.C. § 1973gg-6(g) (2008).