9.17 Myths about Non-Citizen Voting

Writing in the Union County Georgia GOP Blog, Dale Allison wrote that under national popular vote:

“We would be turning our elections over to the states and large cities who allow non-citizens to vote.”[384]

Michigan State Representative Rachelle Smit’s office issued a statement on March 7, 2023 (the date of a hearing before the House Elections Committee on HB 4156) saying:

“With a national popular vote, radical left-wing states can and will inflate their voter rolls with illegal immigrants to create invincible majorities.”

At a hearing of the Missouri Senate Judiciary Committee on March 30, 2016, Jeremy Cady of the Missouri Alliance for Freedom criticized the National Popular Vote bill (SB 1048) by claiming that some states could let non-citizens vote for President—thereby diluting Missouri’s votes.

In fact, no state may allow non-citizens (properly documented or not) to vote for President, because existing federal law prohibits them from voting for President, U.S. Senator, or U.S. Representative. Federal law provides:

“It shall be unlawful for any alien to vote in any election held solely or in part for the purpose of electing a candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia…”[385]

It is important to note that if it were possible for a state to pass a law allowing non-citizens to vote for President (and it is not), that risk would exist independently of whether electoral votes are awarded under the current state-by-state winner-take-all method or on a national-popular-vote basis.

Moreover, if it were possible for a state to pass a law allowing non-citizens to vote for President (and it is not), that risk would be more serious under the current winner-take-all system, because a relatively small number of votes in a closely divided battleground state could more easily affect the national outcome than they would in a nationwide vote for President.

Footnotes

It is sometimes suggested that the Motor Voter Registration law in California (and other states with similar laws) allows non-citizens (properly documented or not) to vote.[386]

In fact, California law makes U.S. citizenship a requirement for voting.

“A person entitled to register to vote shall be a United States citizen, a resident of California, not in prison or on parole for the conviction of a felony, and at least 18 years of age at the time of the next election.”[387] [Emphasis added]

In addition, California law imposes penalties for illegally registering to vote.

“Every person who willfully causes, procures, or allows himself or herself or any other person to be registered as a voter, knowing that he or she or that other person is not entitled to registration, is punishable by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months or two or three years, or in a county jail for not more than one year.”[388]

In addition, California’s Motor Voter Registration law requires applicants for voter registration to attest to their citizenship.

“(b) (1) The department [of Motor Vehicles] shall provide to the Secretary of State, in a manner and method to be determined by the department in consultation with the Secretary of State, the following information associated with each person who submits an application for a driver’s license or identification card pursuant to Section 12800, 12815, or 13000 of the Vehicle Code, or who notifies the department of a change of address pursuant to Section 14600 of the Vehicle Code:

“(A) Name.

“(B) Date of birth.

“(C) Either or both of the following, as contained in the department’s records: (i) Residence address, (ii) Mailing address.

“(D) Digitized signature, as described in Section 12950.5 of the Vehicle Code.

“(E) Telephone number, if available.

“(F) Email address, if available.

“(G) Language preference.

“(H) Political party preference.

“(I) Whether the person chooses to become a permanent vote by mail voter.

“(J) Whether the person affirmatively declined to become registered to vote during a transaction with the department.

“(K) A notation that the applicant has attested that he or she meets all voter eligibility requirements, including United States citizenship, specified in Section 2101.”[389] [Emphasis added]

This requirement for attestation of eligibility (including U.S. citizenship) and the significant penalties for violations are identical whether the person registers to vote in-person, by mail, online, on-the-street during voter registration drives, on Election Day (in states allowing same-day registration), or at an office of the Department of Motor Vehicles.

Moreover, existing federal law (Section 611 of 18 United States Code) prohibits non-citizens (either legal resident aliens or undocumented persons) from voting for President, U.S. Senator, or U.S. Representative:

“It shall be unlawful for any alien to vote in any election held solely or in part for the purpose of electing a candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia …”

If a person is willing to risk significant criminal penalties in order to register to vote, the nature of the evidence needed to obtain a conviction is identical regardless of whether the person registered at the Department of Motor Vehicles or elsewhere.

As a practical matter, legal aliens are generally very careful about complying with the law, because a violation would jeopardize their ability to stay in the country in addition to imposing significant criminal penalties.

Undocumented aliens are even more cautious, because any official interaction with government carries the risk of deportation in addition to the election law’s significant penalties.

Indeed, both types of aliens are among the least likely persons to risk so much in order to cast a vote for a distant politician.

It is important to note that any risk arising from alien voting arising from any state’s Motor Voter Registration law exists independently of whether electoral votes are awarded using the current state-by-state winner-take-all method or on a nationwide basis.

Under the current state-by-state winner-take-all method of awarding electoral votes, a relatively small number of popular votes in a closely divided state could potentially affect the national outcome by flipping a substantial bloc of electoral votes.

Footnotes

Under federal law, non-citizens (whether legal resident aliens or undocumented persons) cannot vote in presidential elections.

Nonetheless, non-citizens significantly impact presidential elections, because they affect the allocation of electoral votes among the states.

In an interview on March 18, 2024, with Don Lemon, Elon Musk stated:

“A disproportionate number of illegal immigrants go to blue states, they amplify the effect of a blue state vote. … The Democrats would lose approximately 20 seats in the House if illegals were not counted in the census, and that’s also 20 less electoral votes for President. So, illegals absolutely affect who controls the House and who controls the presidency.”[390], [391]

The U.S. Constitution requires that the census be used to determine each state’s number of seats in the U.S. House of Representatives. Each state receives a number of electoral votes equal to the state’s number of Representatives plus two (representing the state’s two U.S. Senators).

The Constitution specifies that the census count all “persons,” thereby including non-citizens living in the United States in the count:

“Representatives … shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”[392], [393] [Emphasis added]

Thus, a state with a disproportionally large number of non-citizens (whether legal resident aliens or undocumented persons) acquires additional U.S. House seats and, hence, additional electoral votes.

Then, the voting power of citizens who vote in such states is increased because of the presence of those non-citizens in their state.[394]

To the extent that non-citizens disproportionately live in states that vote Democratic, the Democrats win a certain number of electoral votes because of the presence of non-citizens in those states (even though those non-citizens do not vote).

Excluding non-citizens from the calculation used to apportion seats in the U.S. House of Representatives would require a federal constitutional amendment.

The National Popular Vote Compact would eliminate the distortion in presidential elections caused by the disproportionate presence of non-citizens in certain states. It would equalize the vote of every legal voter in the country by guaranteeing the presidency to the candidate who receives the most popular votes in all 50 states and the District of Columbia.

Footnotes