Web Special: Citizenship Verification, Obstacle to Voter Registration and Participation

By Ana Henderson

Several states across the country have instituted voter identification requirements that force voters to provide proof of identity in order to cast a regular ballot at a polling place.  Although these laws passed quietly at first, drawing little to no national attention, they have more recently been the subject of increased national scrutiny and debate.

A smaller number of states have adopted requirements that affect citizens before they ever make it into the ballot box or even on to voter rolls:  citizenship verification to register to vote.  These requirements have received little to no national attention, but are spreading quietly from state to state.  They will make registration more onerous for every citizen and have the potential to disenfranchise a large number of people.  This article will discuss the various citizenship verification provisions in the states, the reasons proponents offer for them, and why we should be concerned about their proliferation.

Citizenship and Voting
The right to vote in the US has come to be closely tied to citizenship and membership in the demos.  Although into the 1800s, white non-citizens who had declared their intention to become citizens were permitted to vote in some states, today non-citizen voting is limited to a handful of local jurisdictions, meaning that in the overwhelming majority of local elections, and in all federal and state office elections, the franchise is limited to citizens.

During much of the late 20th Century, citizens “proved” their eligibility, including citizenship, by affirming or swearing to it, under penalty of perjury. In 1993, the National Voter Registration Act (“NVRA”), also known as the “Motor Voter law,” streamlined the registration process for federal elections to increase voter access and participation, requiring the creation of voter registration forms that could be completed by mail and directing the states to provide opportunities to register to vote when individuals obtained drivers licenses or other social services provided by the state.   The federally mandated forms provide a space for registrants to swear they are citizens, 18 or over, and otherwise eligible to vote.

In 2004, Arizona became the first state to require that an individual’s citizenship be proven by more than the oath of citizenship provided in the NVRA.  Since then, three other states have passed similar laws and several others have considered them.  As of April 2012, legislation was currently pending in an additional seven states.  These citizenship verification laws fall into two general categories: (1) verification through documentary proof of citizenship and (2) verification by database cross-reference.  

Verification through documentary proof of citizenship:  
In 2004, Arizona voters passed Proposition 200, known as the “Protect Arizona Now” initiative.  It required documentary proof of citizenship in order to register to vote, identification in order to cast a ballot, proof of eligibility for non-federal public benefits, and that local officials report suspected undocumented immigrants to federal officials.  Proposition 200 revised Arizona election law to require that county registrars reject any application for registration that did not contain or come accompanied with acceptable proof of citizenship.  Accepted documents include an Arizona driver’s license issued after 1996, a passport, a birth certificate, or naturalization papers.   While a copy of a passport or birth certificate could be submitted with a by mail registration form, naturalized citizens presenting their naturalization papers must present original documents in person for inspection at their county registrar’s office, and an individual supplying only a naturalization number will not be registered until the number is verified with US Immigration and Customs Enforcement (“ICE”).    

In 2011, the Kansas legislature passed the Kansas Secure and Fair Elections Act, which required photo ID at the polls starting January 1, 2012 and proof of citizenship to register to vote starting January 1, 2013.  However, pending legislation seeks to move the effective date up to June 1, 2012, so that it would be in effect for what Kansas Secretary of State has called, “the spike in registrations” associated with the 2012 Presidential Election.   Acceptable forms of proof of citizenship in Kansas include a passport, birth certificate showing US citizenship, a drivers license from a state that requires citizenship for licensing, Bureau of Indian Affairs ID card or number, and naturalization papers or numbers (but numbers must be verified with ICE before an applicant is added to the rolls).

In 2011, Alabama passed HB 56, the “Alabama Taxpayer and Citizen Protection Act.”  This Act has been called the strictest state anti-immigration law in the nation and has garnered international attention and several lawsuits.  However, while aspects some aspects of the law, such as the requirement that police inquire into citizenship status when there is reasonable suspicion that a stopped individual may not be a citizen or the requirement that local public school officials investigate students’ citizenship status, have drawn intense attention, very little attention has been paid to Section 29 of the Act, which requires proof of citizenship prior to being added to the voter rolls.  The law accepts the same documentation as Kansas (in fact, Section 29 is nearly identical to the Kansas law, which might not be surprising since Kansas Secretary of State Kris Kobach is said to have authored the majority of Alabama’s HB 56, as well as Arizona’s AB 1070).   

Citizenship verification by cross-reference:  
In 2008, the Georgia legislature passed a law requiring verification of registrants’ citizenship before they can be added to the voter rolls.  The Georgia law requires verifying registrants’ citizenship with the state’s drivers’ license database, since individuals are listed as citizens or non-citizens in that database.  If an individual is listed in the license database as a non-citizen, her citizenship must be verified, through documentation or though communication with ICE, before she can be added to the voter rolls.  Although the US Department of Justice originally objected to Georgia’s law,  it has since relented and precleared it.  As such, Georgia is free to pursue its policy unless another challenge invalidates it.  Like the Arizona, Alabama, and Kansas laws, the precleared version of the Georgia law only applies to new registrants in the state.  

In 2011, Tennessee passed a law requiring that the statewide voter rolls be cross-referenced with other state and federal databases to identify potential non-citizens who are registered to vote.   When such cross reference raises a question about a voter’s citizenship status, county officials are to send the voter a notice requiring her to produce proof of citizenship within 30 days or be removed from the voter rolls.  Acceptable proof of citizenship includes a birth certificate, passport, naturalization papers, or other documentation accepted by the Immigration Control and Reform Act of 1986.  Unlike the laws in Arizona, Kansas and Georgia, the Tennessee law will check citizenship of all registered voters.   

Arguments for Citizenship Verification:
Proponents of citizenship verification argue that it is necessary to safeguard the electoral process from fraudulent non-citizen voting and protect the votes of legal citizens.  They argue that due to lax registration requirements in the NVRA,   particularly the lack of any proof of eligibility, non-citizens can and are registering to vote and even voting.   Arguments for proof of citizenship generally follow some incarnation of the following formula:  (1) registering to vote is very easy, with no safeguards or requirements to prevent fraudulent registration; (2) there are many non-citizens in the country, including millions of “illegals”; (3) such non-citizens could register to vote if they lie about their citizenship and could then cast illegal ballots; and (4) several recent elections have been decided by small margins, so illegal non-citizen votes could affect electoral outcomes.  Although some advocates admit that “there is no reliable method to determine the number of non-citizens registered or actually voting,” they state that that “thousands” of non-citizens are registered in some states, and “tens if not hundreds of thousands may be present on the voter rolls nation wide.”   Some even claim that 9/11 terrorists were registered to vote and actually voted.  

In addition, citizenship verification and voter ID policies are claimed to be necessary to protect legal citizens’ votes and increase their confidence in the electoral system among legal citizens.  Votes cast by non-citizens are said to cancel out or dilute the votes cast by legal citizens.  This risk of non-citizen illegal voting, in turn, decreases legal citizens’ confidence in the electoral system, leading to a decrease in participation among legal citizens.  By restoring confidence in the system, proponents argue, citizenship verification and voter ID will increase participation among legal voters.

Given the fervor of advocacy for anti-fraud provisions and intensity of claims of fraud and non-citizen voting, one would expect ample evidence of widespread fraud.  However, there is very little evidence of non-citizen voting fraud, meaning non-citizens who knowingly register and vote despite knowing they are not eligible to do so.  There are very few claims of non-citizen voting, compared to total votes cast, and subsequent investigation turn up very few, if any, documented cases of non-citizens voting.  For example, an analysis of voting crime records in California between 1994 and 2006 found 161 complaints about non-citizen registration.  Of the 104 cases where State officials determined there was a criminal violation, 101 resulted in no action because the defendant lacked intent to commit fraud, and only 2 resulted in a criminal conviction or guilty plea. During this same period, more than 75 million votes were cast in California.    Similarly, an investigation of “illegal voting” in the 2004 gubernatorial election in Washington State found only two non-citizens, both university students, voted in the election; out of 2.9 million votes cast.  The vast majority of the 1,678 complained of “illegal votes” were cast by felons.

Reasons for concern:   
Since citizenship is required to vote in the vast majority of elections in the US, one might wonder what harm there is in asking individuals to prove their citizenship in order to register and vote.  Aside from the lack of evidence that the current system is unreliable, citizenship verification does provide cause for concern due to the likely effect of making registering to vote, and therefor participating in our democracy, more difficult.

Registering to vote will be more onerous for everyone:  
Citizenship verification requirements place an additional hurdle in the voting process by requiring more information for registering to vote and/or remaining on the voter rolls.  

Documentation challenges:  
All new voters in several states will have to prove their citizenship through documentation.  However, not all citizens possess the required documentation.  It is estimated that only 30% of US citizens (including children) possess a US Passport, arguably the most reliable method of proving citizenship.  Many citizens do not have access to other documents, such as a birth certificate.  While the Kansas and Alabama laws allow a person without documentation to petition for registration, this places additional requirements and delays on the process, which could affect the ability to vote in a given election.  For example, most jurisdictions require voter registration to be completed 30 days prior to an election; pursuing hearings to establish citizenship could easily delay a registration past that threshold.  

In addition, for a substantial portion of the population, a birth certificate alone will not be sufficient to prove citizenship for registration.  In Kansas and Alabama, the names and sex on the birth certificate much match that on the voter registration form.  For some populations, such as married women, for example, there is likely to be an inconsistency between their birth certificate name and voter registration name, requiring them to take the additional step of completing a form explaining the reason for the inconsistency under penalty of perjury.  The fact that these laws permit an applicant to swear to their identity on forms but not to their US citizenship is an interesting contrast.  

Database Accuracy
Although database verification methods don’t put the onus on voters to provide documentation at the start, they still pose challenges to registration.  Databases may erroneously identify citizens and non-citizens, either due to data input errors but also due to old data.  For example, driver’s license data on citizenship may not be updated after an individual naturalizes, leaving him flagged as a non-citizen in the database and subject to voter registration problems.  In Georgia, such an individual would not be added to the voter rolls until further documentation or verification proved citizenship, and in Tennessee, a voter would be purged from voter rolls if unable to prove citizenship within 30 days.  

Harsher impact on particular groups:  
In addition to the general impact on all citizens seeking to register, these laws may have a particular impact on members of certain groups who have or are perceived to have a higher risk of being non-citizens.  

Perceived “foreignness”
Experiences from past elections show that citizenship-based challenges often fall most severely on those perceived to be “foreign” regardless of their actual citizenship.  Such challenges to voters on the basis of citizenship have been based on stereotype more than fact, with Latinos, Asian Americans, and Middle Eastern Americans feeling the biggest brunt.  For example, in the 1999 elections in Hamtramck, MI, poll watchers challenged voters on the basis of citizenship selectively in the polls without proof of non-citizenship.  Challenged voters were Arab American, and challenges were based on Arab sounding name, accent, and/or appearance.  Some voters were made to take oaths of citizenship even though they carried US Passports with them to the polls.  In the 2004 election cycle, one Georgia county registrar required voters with Latino surnames to appear in court to prove their citizenship and eligibility to vote.   In 2005, an individual in Washington State challenged the citizenship eligibility of several voters who had registered to vote when they got their drivers’ licenses, on the basis that they had names “that appear to be from outside the United States.”

Registration disparities:
As noted above, most current citizenship verification laws apply only to registrants.  Since people of color, particularly Latinos and Asian Americans, are registered at lower rates than non-Latino whites, laws that affect only new registrants may have a more heavy effect among these communities.  Table 1 shows the percentage of voting age citizens for various racial groups who reported being registered to vote in 2008 and 2010.  Since participation among registered voters is roughly the same among racial groups, one of the biggest obstacles to Latino and Asian American participation is becoming a registered voter.  Citizenship verification laws present an obstacle to all new voters, but may have the largest effect on groups with low registration rates.  

Although voting is limited to citizens in nearly all jurisdictions, citizenship verification laws are a blunt instrument with a potentially disenfranchising effect.  Citizenship verification laws will make registering to vote more difficult for all voters and may have particularly strong effects on the political participation of Latinos and Asian Americans.  While Voter ID laws and controversies have captured the majority of press attention, citizenship verification laws have been cropping up and passing quietly.  More attention should be paid to citizenship verification laws and more time spent questioning whether the burden they impose is in the interests of US democracy.  

Ana Henderson is the Director of Opportunity and Inclusion at the Chief Justice Earl Warren Institute on Law and Social Policy and a Lecturer-in-Residence at the University of California, Berkeley, School of Law.