Immigration Article of the Day: Driver’s Licenses for All Meets Automatic Voter Registration: A Recipe for Noncitizen Voter Fraud or a Pathway to Electoral Justice? by Virgil Wiebe

Abstract

What happens when states pass automatic voter registration laws based on driver’s license applications and at the same time expand access to driver’s licenses to undocumented immigrants? Does this lead to undocumented immigrants illegally registering to vote and illegally voting? This paper argues that while the roll out of these laws has not always been smooth, there is no evidence of systematic voter fraud by noncitizens, be they lawfully present or undocumented.

Criminal and immigration law measures to discourage unlawful noncitizen from voting and registering to vote have been in place for decades. This article examines how these measures have played out on the ground in five states as a backdrop to considering the implementation of Driver’s Licenses for All (DL4All) and Automatic Voter Registration (AVR). The article also examines the basic arguments for and against DL4All and AVR as they affect noncitizens. It looks at measures put in place both to guard against voter fraud and to protect immigrants.

As a backdrop, I look at the issue of DL4All, AVR, and noncitizen voting issues at the federal level. While there is no federal equivalent of DL4All, federal law does allow states to have DL4All. Members of Congress have failed to pass AVR at the national level. I also outline federal criminal and immigration law implications of voter fraud for noncitizens. I also try to figure out whether the issue of noncitizen registration and voting, even without DL4All or AVR, is seen by federal immigration authorities and U.S. attorneys as warranting attention.

I then look in depth at five states that have or are implementing both DL4All and AVR: California, Illinois, Oregon, Colorado, and Minnesota. For each state, I look at the underlying context, including the size and nature of the noncitizen population of each state. I also consider whether, prior to the implementation of DL4All and AVR, illegal noncitizen registration and voting were even issues and the extent to which secretaries of state and local law enforcement had identified and prosecuted noncitizens thought to have registered or voted unlawfully. I then look at the implementation of DL4All and AVR and whether those systems have contributed to unlawful registration or voting. Finally, whether the state in question has an official authorization defense (whether judicial or statutory) for inadvertent registration or voting by noncitizens is discussed.

Why those five? The front-end AVR states of California and Illinois, home to some of the largest populations of undocumented immigrants in the country, have implemented their regimes with mixed success. Oregon and Colorado have adopted back-end regimes and provide contrast. Oregon was an early adopter of AVR, and Colorado has moved from a front-end to a back-end system.  Another reason to consider California, Illinois, and Colorado is that each has had at least one well-publicized incident involving possible noncitizen registration and/or voting.  Minnesota was chosen because it is one of the most recent states to pass laws implementing such a dual regime simultaneously. As Minnesota implements this dual regime, I hope there are helpful lessons to be learned from the missteps and successes in other states.

KJ