The Trump Administration Is Empowering States to Verify Voters’ Citizenship

Former U.S. Rep. Brian Bilbray (R-Calif.) stated on the House floor in February 1998 that “There are two ways of violating a voter’s rights. One is not to allow qualified voters to vote, and the other is to allow unqualified voters to vote and negate [the votes of] those qualified voters.” U.S. Rep. Ed Pease (R-Ind.) also stated on the floor that day that “[T]here is no more precious right of citizenship than the right to vote. When noncitizens falsely claim to be citizens in order to vote, this right is cheapened for everyone else.”

At the direction of President Trump, the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) just announced that it will be empowering states and localities to prevent aliens from illegally voting by giving the states and local governments the ability to verify the citizenship of prospective voters by Social Security number (SSN). I am gratified that the Trump administration is taking this long overdue action. I’ll just note in passing that I first proposed it 28 years ago.

On March 25, President Trump signed an executive order (EO) — “Preserving and Protecting the Integrity of American Elections” — providing in part that:

To assist States in determining whether individuals are eligible to register and vote … . [t]he Commissioner of Social Security shall take all appropriate action to make available … Federal databases containing relevant information to all State and local election officials engaged in verifying the eligibility of individuals registering to vote or who are already registered.

As USCIS has explained:

• “For years, states have pleaded for tools to help identify and stop aliens from hijacking our elections,” said USCIS Spokesman Matthew Tragesser.

• SAVE [Systematic Alien Verification for Entitlements], a critical tool for verifying lawful U.S. citizenship and immigration status operated by USCIS, provides federal, state, territorial, tribal, and local agencies with U.S. citizenship and immigration status information to help ensure the eligibility of individuals applying for certain public benefits and licenses, including voter eligibility verification.

USCIS noted that “Providing more tools within SAVE ensures state and local governments have robust and reliable access to federal databases to confirm the U.S. citizenship of individuals on their voting rolls and registering to vote, in support of [President Trump’s EO].”

On May 22, USCIS announced that:

• [USCIS] [has] updated [SAVE] to ensure a single, reliable source for verifying immigration status and U.S. citizenship nationwide. State and local authorities can input [SSNs] to help verify U.S. citizenship and prevent aliens from voting in American elections.

• This new partnership with the Social Security Administration [SSA] allows cases to verify citizenship or immigration status to be created using [SSNs] rather than a DHS identifying number, which most state and local agencies do not collect. Also, for the first time, agencies can submit more than one case at a time, making the process more efficient.

• All state and local governments are encouraged to register to use SAVE for lawful voter eligibility verification … . USCIS [has] eliminated all charges for … government agencies to use the service.

I must say that this is a great idea. But not a new one. On April 24, 1997, U.S. Rep. Steve Horn (R-Calif.) introduced H.R. 1428, the “Voter Eligibility Verification Act”, legislation I had drafted. Horn explained when introducing his bill that:

[E]lection officials would be able to make [on a voluntary basis] inquiries with [SSA] and the [then] Immigration and Naturalization Service [INS] to verify the citizenship of people who have submitted a voter registration application at the local level. Both agencies are involved because neither has a comprehensive record of all current citizens … .

The bill also makes it clear that state and local governments also may require the Social Security number as part of the voter registration process.

Horn emphasized that the country was encountering “increasing[] situations where people who are not American citizens are voting, and local registrars and State chief election officers are at their wit’s end as to how [to] find out who are American citizens and who are not”. Pease explained on the House floor when managing Horn’s bill for the House Judiciary Committee that:

There is currently no satisfactory way for local registrars to ensure that there are no noncitizens on their voting rolls … . Attempts have been made to check voting rolls against [INS] records in order to ferret out noncitizens; however, INS data at best can only tell us that a voter is a legal alien or a naturalized citizen. INS data cannot tell us whether a voter is a native born U.S. citizen.

Pease stated that Horn’s bill would “provide us with the means to identify noncitizens who are either trying to register to vote or are already registered”. He explained that:

• Checking the [voting] rolls with both agencies is the key to a successful verification program … . [C]hecks against [SSA] records can tell us whether someone is fabricating an identity and whether someone is a native-born citizen.

• Comparing information on voters against both agencies’ records will let us know conclusively whether individuals are U.S. citizens or not.

H.R. 1428 itself provided that:

The Attorney General, in consultation with the Commissioner of Social Security, shall establish a confirmation system through which they … respond to inquiries made to verify the citizenship of an individual … by Federal, State, and local officials (including voting registrars) with responsibility for determining an individual’s qualification to vote in a Federal, State, or local election.

Further, the bill stated that the confirmation system would “provide for a confirmation or a tentative nonconfirmation of an individual’s citizenship”. To do this, SSA would “compare[] the name and [SSN] provided … against such information [it] maintained” and INS would “compare[] the name and alien identification … number … provided … against such information [it] maintained”, both “in order to confirm (or not confirm) the validity of the information provided … the correspondence of the name and number, and whether the individual is a citizen”. Where there was a tentative nonconfirmation, a “secondary verification process” would be available to “confirm the validity of information provided and … provide a final confirmation or nonconfirmation”. This was, not at all coincidentally, very similar in structure to that of the E-Verify electronic employment eligibility verification system, which Congress had passed and President Clinton had signed into law as a pilot program as part of the “Illegal Immigration Reform and Immigrant Responsibility Act of 1996”.

What were the consequences of a final confirmation under H.R. 1428? The bill provided that:

In a case where an official who is authorized to receive information through use of the confirmation system is unable, after completion of the secondary verification process, to confirm the citizenship of an individual, the official … shall so notify the individual in writing … inform[ing] the individual [of their] right to use … the process … for the prompt correction of erroneous information in the confirmation system.

As to an individual who had submitted a voter registration application, the official could then “reject the application, or provisionally accept the application, pending the official’s receipt of adequate confirmation of the citizenship of the individual”. As to an individual who was registered to vote who had received a notice “in connection with a program to remove the names of ineligible voters from [the voting rolls], the official may … remove the name of the individual … or grant the[m] provisional voting status, pending the official’s receipt of adequate confirmation of … citizenship”.

California Secretary of State Bill Jones wrote to Rep. Horn to express his “strong support” for his bill:

• I have set as my goal as Secretary of State 100% voter participation and zero tolerance for fraud.

• [T]here are … some reforms uncompleted that are critical to the future integrity of California’s election system. Number one is the issue of citizenship… . Unfortunately, we have very limited tools to be able to verify or check if a voter is a citizen.

  Your bill … would materially benefit election officials in our efforts to maintain the integrity of the voter file.

On February 12, 1998, the House of Representatives considered H.R. 1428. The bill was vitriolically and histrionically denounced by many Democrats (and a few Republicans):

• Bill Hefner (D-N.C.): “A better title for this bill is the ‘Voter Suppression Act.’”
• John Lewis (D-Ga.): “This bill is a dagger in the heart of the Voting Rights Act of 1965. It destroys not only the spirit, but the very soul of the Voting Rights Act. … [I]t is a disgrace.”
• Rosa DeLauro (D-Conn.): “I think that President Lincoln is turning over in his grave today. … He would be appalled.”
• Luis Gutiérrez (D-Ill.): “The Republicans will go on record today not simply as opponents of Latinos but as opponents of the principles that should make each of us proud to be an American.”
• Steny Hoyer (D-Md.): “This bill was conceived out of paranoia and xenophobia and it would severely threaten the voting rights of all Americans.”
• Sheila Jackson Lee (D-Texas): “[T]his Republican leadership and majority want to take away and clothe the Voter Rights Act with the cover of the Ku Klux Klan. … Vote down this horrible stab in the Voter Rights Act.”
• Maxine Waters (D-Calif.): “It is reminiscent of the poll tax and the literacy tests, of Jim Crow.”
• Nydia Velázquez (D-N.Y.): “Republicans want to begin a new and tragic chapter in our country’s voting rights history.”

Last, but not least, Esteban Torres (D-Calif.) proclaimed that “This bill is nothing but a spiteful attempt to retaliate against the Latino community for sending [former California Republican U.S. Rep.] Bob Dornan to the unemployment line.”

To all of which, House Speaker Newt Gingrich (R-Ga.) responded:

I think to try to vote this down with the sham argument of racism is, in effect, a way of covering up the fact that some Members, in fact, favor allowing noncitizens to vote, allowing people who have no right to vote, and that means canceling out the legal vote of a legal citizen who should have that vote protected as one of the hallmarks of democracy.

The House then voted on the bill, which received 210 aye votes and 200 nay votes (Republicans voting 203-13, Democrats voting 7-186, and independent Bernie Sanders voting nay). The bill failed to pass because it had been placed on the expedited “suspension” calendar, which requires a two-thirds vote for a bill to pass. The House Republican leadership never brought the bill up again through normal procedures, under which it would need only a majority vote to pass. The leadership obviously wanted a political “show” vote, and did not seem seriously interested in advancing the legislation.

In 2002, U.S. Rep. George Gekas (R-Pa.), the chairman of the House Judiciary Committee’s Subcommittee on Immigration, Border Security, and Claims, for whom I worked, introduced immigration reform legislation (H.R. 5013) that contained a title on “Verification of Citizenship of Voters in Federal Elections”. The title consisted of a modified version of Horn’s legislation.

Gekas’s bill would have mandated use of the confirmation system with regard to all voter registration applicants and all registered voters for federal office and would have mandated the rejection of voter registration applicants (subject to the right to reapply) and the removal from the voting rolls of registered voters (subject to the right to submit another registration application) whose citizenship could not be verified. It provided that the attorney general could, if necessary, bring a civil action in an appropriate district court for declaratory or injunctive relief, as could any aggrieved person.

If only H.R. 1428 or H.R. 5013 had been enacted, President Trump’s March executive order would not have been as needed. In any event, thank you, USCIS.