[EL] Realistic chances of prosecution for non-citizen voting (was: nothing unusual here)

[bzall at aol.com]

Mark asks: "Does anyone know what the realistic chances are that a non-citizen permanent resident will be prosecuted or deported for falsely stating that he or she is a citizen?"


Ordinarily, I don't jump into these discussions any more; too many personal attacks. But I feel a bit safer on this, since we know that: “Unlike impersonation fraud, noncitizen voting cannot be dismissed as a Republican fantasy.” Richard Hasen, “A Détente Before the Election,” The New York Times, August 5, 2012, available at: http://campaignstops.blogs.nytimes.com/2012/08/05/a-dtente-before-the-election/?ref=opinion (last visited Aug. 6, 2012). 


But realistic chances of prosecution? If you're asking about voting alone, in the absence of a false claim of citizenship for immigration purposes, probably not zero, but pretty close. E.g., “between 1996 and [2006], as many as 232non-citizens tried to register to vote and that the State prosecuted ten ofthose 232 alleged non-citizens.” Gonzalezv. Arizona,485 F.3d 1041, 1048 (9th Cir. 2007). So, about four percent. Or less: in the 1996 Dornan-Sanchez race, decided by less than a thousand votes, the California Secretary of State determined that 303 (or 440, depending on who was reporting) non-citizens registered by the group Hermandad Mexicano Nacional (which admitted on McNeil-Lehrer having knowingly registered non-citizens) had voted in the disputed election; there were no prosecutions of the aliens who voted even though the District Attorney had all the information necessary to do so. 





This evidence of non-citizen voter participationdoes not necessarily mean that there is criminal intent. On the weekend before the November 2000elections, the California Democratic Party mailed hundreds of thousands of fake“Voter Identification Cards” to lists which included non-citizens. JulieFoster, “Non-citizens vote with ‘Clintoncard’?” WorldNet Daily, November 7, 2000, availableat www.worldnetdaily.com/news/printer-friendly.asp?ARTICLE_ID=18000. Thecards were accompanied by a letter signed by then-President Bill Clinton, who urged recipients to vote. Id. TheClinton letterincluded a postscript, just below President Clinton’s signature, which read:“Here is your personal Voter Identification Card. Sign your name, then detachyour card. Bring your card with you to your polling place on Election Day. Itwill help your voting go more smoothly.” Id. A copy ofthe Clintonletter can be found at:http://www.worldnetdaily.com/images/20001106_Clintonltr.jpg.  


And that is why there aren't more prosecutions. Prosecutors, including those the Bush Justice Department tried to get to prosecute more of these frauds, won't do so if they can't show intent. “BILL JONES, CALIFORNIA’S SECRETARY OF STATE: “We are seeking to deal with . . . whether or not there was an intent to defraud in the case of the individuals there who either voted or participated in that process or not because you always have to prove intent.” PBS Online Newshour, “Contested Contest,” Online Focus, October 22, 1997, available at: www.pbs.org/newshour/bb/congress/july-dec97/dornan_10-22.html. “Another [U.S. Attorney] officereported that they declined to prosecute a number of investigations (number nottracked) that involved aliens who registered to vote. Rather than prosecute,they allowed administrative procedures regarding deportation to occur.”  GAO-05-478, at 60. Similarly,the House Committee on House Oversight reported in 1998 that the Immigrationand Naturalization Service was unwilling to assist in investigating fraud bynon-citizens in the 1996 elections. H. Rpt. 105-416, at 88, and n. 79. 


Oh, and this idea that signing under penalty of perjury is a realistic deterrent? That's the issue in Arizona v. ITCA, Supreme Court No. 12-71, with merits briefing currently under way. The EAC says that's sufficient protection against voter registration fraud by noncitizens; Arizona disagrees. 9th Circuit en banc said that was enough; Supreme Court granted cert on Oct. 15 (although the case may go off on preemption instead of reaching the merits of this issue). 


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-----Original Message-----
From: Scarberry, Mark <Mark.Scarberry at pepperdine.edu>
To: law-election <law-election at department-lists.uci.edu>
Sent: Sat, Oct 27, 2012 3:48 pm
Subject: Re: [EL] Nothing unusual here?



We should not assume that just because these voters were of Somali ethnicity they were noncitizens. On the other hand, some of the arguments being made here to the effect that there is not a problem seem weak.
 
Do we want the citizenship requirement to be widely publicized, as Richard suggests? Didn’t many people think it was voter-suppressive to publicize the citizenship requirement by billboards or by posted signs at balloting locations in areas with substantial immigrant populations? Or am I remembering that controversy incorrectly?
 
Does anyone know what the realistic chances are that a non-citizen permanent resident will be prosecuted or deported for falsely stating that he or she is a citizen? If interpreters are needed, then it seems that the voting materials (which, as I understand Richard’s post, require signing of a declaration of citizenship) are not in the Somali immigrant voters’ native language. Would such a voter realize that he or she was falsely claiming citizenship by signing a document in a language that the person did not understand? If not, then wouldn’t that be a defense to a prosecution or a deportation proceeding?
 
Mark
 
Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law
 
 

 

 
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