California Noncitizens Need Not Fear Removal for Mistaken Voter Fraud

Guest blogger: Giselle Guro, first-year law student, University of San Francisco:

The right to vote in the United States has been an exclusive right of citizens and is fervently protected as such. Controversy over allowing noncitizens to vote even reach the lowest level of elections. In 2004, Proposition D was a ballot proposition that would have allowed noncitizen parents of San Francisco students to vote in school board elections. The proposition did not pass. For the highest level – federal elections – noncitizens are included in the total population when calculating how many electoral votes each state receives, but they are not allowed to vote.

Under California’s Motor Voter Act that went into effect January 1, millions of California citizens automatically are given the option to register to vote when renewing or applying for a driver’s license at the DMV. To register, they affirm their eligibility to vote; they also have the choice of opting out of registering. Noncitizens applying for California driver’s licenses under California Assembly Bill 60 (AB-60) go through an entirely different process that does not give the option to register to vote. This discredits a popular fear from conservatives that voter fraud will become rampant in the state. In addition, the Motor Voter Act contains safety precautions set up in the event that a noncitizen has been accidentally registered. According to the act,

If a person who is ineligible to vote becomes registered to vote pursuant to this chapter and votes or attempts to vote in an election held after the effective date of the person’s registration, that person shall be presumed to have acted with official authorization and shall not be guilty of fraudulently voting or attempting to vote pursuant to Section 18560, unless that person willfully votes or attempts to vote knowing that he or she is not entitled to vote.

This safeguard protects noncitizens an innocent mistake that otherwise could lead to grave consequences. Federal law 18 U.S.C. § 611(a) makes it unlawful for an alien to vote in any federal election. Section 237(a)(6)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(6)(A) makes any alien that has voted in violation of any Federal, State, or local constitutional provision, statute, ordinance, or regulation removable. The law makes the noncitizen deportable even if she did not know that it was unlawful to vote. This very situation happened in Matter of Margarita Del Pilar Fitzpatrick, 26 I&N Dec. 559 (BIA 2015), where the legal permanent resident respondent applied for a driver’s license and signed a voter registration application, checking the box that said she was a U.S. citizen. She then voted in the 2006 election and disclosed that fact in her application for naturalization. The Immigration Judge ordered her removal, and the BIA affirmed.

With the safeguard built into California’s Motor Voter Act, noncitizens would not automatically be found removable if they were accidentally registered to vote under the Act. They are presumed innocent unless it is established that they willfully voted knowing it was unlawful. It may seem obvious to citizens that noncitizens are not allowed to vote. But many noncitizens are unaware of many requirements and want to feel like they are contributing to their new country; voting can simply be seen as an effort to contribute to society. It is not so obvious to them, especially in local elections, that they do not have the right to vote. Some ways to prevent mistaken voter fraud would be through PSAs or training volunteers on the procedures and consequences of voter fraud when speaking to registrants. While it may be a long time before noncitizens are given the right to vote, California has given noncitizens who truly, innocently believed they could vote the chance to stay in the United States without fear of removal due to voter fraud.

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