23 Dec 2008, Written by Erica Ellen Phillips in politics

The Accidental Voter

In the late campaign months of 2008, the Association of Community Organizations for Reform Now (ACORN) began to appear in headlines across the country as questions arose about its “radical agenda” and the large number of fraudulent voter registration cards ACORN allegedly processed. Most significantly, ACORN was linked to presidential candidate Barack Obama through his work as one of a team of lawyers representing the organization in a lawsuit it filed against the State of Illinois. Obama and his team were successful in the suit, requiring the State to adopt the National Voter Registration Act of 1993.

Known to most as “Motor Voter,” the Act was among the earliest pieces of national legislation signed by President Clinton, and was intended to expand the accessibility of voting rights. Motor Voter required public processing centers (Secretary of State and DMV facilities, schools, libraries, etc.) in each state to make voter registration paperwork available to their patrons. Since the federal enactment, most states have adopted the legislation as their own, though several (Illinois, for example) had initial qualms about the higher rates of fraud that could result. Unfortunately, they may have been right, though they could never have predicted how.

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In North Liberty, Iowa, a suburb of Iowa City, Cindy Diouf is a school principal and active community member. Cindy and her husband, Ivon, met in Senegal at a Peace Corps training event in the mid-90s-she was an American volunteer stationed in Guinea, and he was working at the swimming pool where the volunteers had come to relax. They fell in love during Cindy’s years in Africa, and were soon married and beginning their life together in the U.S.

Only recently, after several long worrisome years, mounds of paperwork, and time and money spent in deportation proceedings, did Ivon finally earn his U.S. citizenship and the family-whose lives have become yet another example of an unforeseeable outcome of Motor Voter-is finally able to lead a quiet life.

The Dioufs ran into this snag on an early Tuesday in a November not unlike this year’s. They were recently married when Cindy walked across the street to perform her civic duty and cast a voter’s ballot. When the polling judge couldn’t find her listed under her maiden name, Cindy gave her new married name and saw that both she and her husband were listed as registered voters. Excited, she ran home and brought Ivon back with her, showing him the list and encouraging him to cast his vote. Ivon, who had only earned his permanent resident status¹ at that time, was unsure but wanted to do the right thing. Because he saw his name on the list, he wondered if this civic responsibility might be expected of him, so he voted. Alas, the very thing he and Cindy believed to be proper turned out to be what one Houston attorney would later call “a death sentence.” That is, registering to vote and-worse yet-voting as a non-citizen of the United States.

As impossible as it would seem, this happens to many immigrants without their knowing that they are ineligible. It can occur either as part of an application for a drivers license or state identification card, or as part of community “get-out-the-vote” efforts.

At Secretary of State or DMV facilities in states with active Motor Voter protocol, the attendants are required to offer voter registration as part of the process of obtaining a state ID. Because of the time-constrained and uniform nature of these interactions between individuals and facility attendants, crucial details are often overlooked-such as the applicant’s immigration status. Many immigrants present their foreign passports when prompted for their identification, and are still asked if they would like to register to vote.

If the individual’s uninformed answer is “yes,” he or she is presented with a voter registration card, told to check a box, and shown where sign. This box-often filled with an ‘X’ by the attendant his or her self before being given to the registrant-reads (on most states’ registration cards):

“I swear or affirm that: 
- I am a U.S. citizen 
- I will be at least 18 years old on or before the next election 
- I live at the above address 
- I am not on parole, probation or serving a sentence…”

plus an additional bullet point that varies by state, occasionally reading, “I certify under penalty of perjury of the State of ___ that all the information on this form is true and correct,” and other times outlining the fines and jail sentences imparted to those who present false information on the form.

This is the government’s fail-safe to ensure that a voter registration is legitimate: a certification statement at the bottom of the form, which is often checked off by someone other than the person completing the form. In so many cases, the only action the registrant takes on the form is to sign it-the biographic portions (address, birth date, etc.) are already completed electronically as part of the state ID application. For an immigrant who may not speak fluent English, or if they do, may not understand the nuance between the legal definition of Citizen and the layperson’s definition (more like a general “resident”), it is easy to make this mistake-especially when he or she is asked several questions at once and given multiple forms to sign. This action, however, constitutes “making false claims to U.S. citizenship” and is more than adequate reason for an Immigration Judge to order deportation.

Jerri Mead, an attorney based in Fort Wayne, Indiana, believes that a lot of the confusion has to do with a language barrier. “Our way of doing things really doesn’t take into effect the people who don’t know the language,” she argues. “The government, from what I’m seeing, is finally saying ‘if you’re going to be here, you need to learn the language, and if you don’t learn the language, then you’re just going to pay dearly for it.’”

Houston-based attorney, Brian Johnson, says nearly all of the cases his firm handles dealing with “false claims to citizenship” involve immigrants who speak little English. “They don’t know what they’re signing, they don’t know what they’re checking off,” he explains. In one particular case, at a community event, “the client thought it was just a lottery thing or a sweepstakes” and signed his name on the form, which had been completed for him by a cousin.

Well-meaning U.S. citizen family members are often, sadly, the source of such misinformation. “Most people who are confused are not the immigrants,” says Altagracia McDonald, an attorney in Pasadena, Texas. “A lot of people are under the misconception that because they are U.S. citizens, their spouses automatically are either residents or citizens and they can do all these things….  So a lot of times it was the spouses that would say ‘Honey, they sent you that [voter registration form] because you’re married to me and I’m sure it’s okay. They wouldn’t send you this if it wasn’t ok.’”

Innumerable immigrants have been presented with such an opportunity to break the law, and they are given no reason to believe that it might be the wrong thing to do. In these cases, where immigrants end up in deportation for claiming U.S. citizenship on a form that was presented to them with no explanation of the consequences, the most well-meaning of individuals have found themselves in harrowing circumstances.

Technically, a false claim to citizenship could be considered a form of fraud, and in order to be convicted of fraud-under each state’s criminal laws-any such crime requires intent. However, the relationship is sticky between federal immigration law, which outlines what sorts of offenses are deportable, and criminal law, which defines and criminalizes “fraud” at the state level. There is essentially a missing link between the two.

At the federal level, voting or claiming citizenship can get a non-citizen immigrant deported; at the state level, committing any sort of fraud requires intent. Unfortunately for immigrants, their applications for citizenship are evaluated at the federal level. “ICE [Immigration and Customs Enforcement] is getting people who haven’t committed fraud, they simply made a mistake!” says James Benzoni, attorney for the Diouf family. Benzoni is a seasoned immigration attorney, but he says their case was the first time he’d seen a situation like this-likely an unforeseen result of the reorganization of the Department of Homeland Security.

Technical improvements in the linking of government databases between all the various agencies that now fall under DHS (Social Security, the FBI, and so on) mean each individual now has a trackable long-term history in the system, and “mistakes” will no longer go undetected. Attorney Johnson says he’s seen the government agencies “tighten the screws on a lot of things… verifying the accuracy of information and double-checking sources, doing background checks.”

Mead and Benzoni both warned that by joining these various databases, the government is broaching on sensitive individual information. Benzoni points out that state election officials are verifying identity illegally by “going to the Social Security database first when they shouldn’t.” Mead echoed his sentiment, saying, “they’re slipping it in under everybody’s noses.”

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Over the years, the passage of overlapping and conflicting legislation-from the Immigration and Nationality Act of 1986, to the implementation of Motor Voter in the mid-90s, to the recent reorganization of INS under the DHS umbrella-has brought about this messy conundrum of accidental voter registration. Nowadays, unlike in years past, citizenship applicants who have lived in the country for decades are seeing old mistakes come back to haunt them, and it doesn’t seem fair. “The punishment doesn’t fit the crime,” says attorney McDonald.

The only hope a naturalization applicant may have at this point is an exercise of discretion by the particular officer who handles his or her case. As attorney McDonald explains, however, the extent of discretion varies widely. “If you file naturalization in California this may not be an issue, but if you file it in Houston you may get deported-out of the same action-because the adjudicator has discretion.”

“The best thing I think we could hope for is for them to allow a waiver for it,” says Johnson. A waiver would allow, for example, a man who is married to a U.S. citizen and has children who are U.S. citizens, to plead the case that his family would not be able to survive without him here. At present, there is no waiver option available to immigrants who are placed in deportation proceedings for false claims to citizenship.

McDonald, for her part, believes the general public needs to be more educated on what it means to be a citizen and the difference between various immigrant statuses. “Perhaps 20 years ago this wasn’t a big issue, but now our citizenry need to know.”

While education on immigrant status and the meaning of “citizen” is important for the general populace, perhaps more salient-particularly this year-would be a background on fraud surrounding our nation’s electoral process. There is a possibility that ineligible immigrants may be registered to vote unintentionally, and it is one of many good reasons to direct a close eye to the way our elections are managed. However, “The real problem,” according to attorney Benzoni, “is just getting [immigrants] to vote at all when they’re U.S. citizens.”

David Morris, vice president of the Institute for Local Self-Reliance, writes in an opinion piece for the Minneapolis Star-Tribune: “Raising the fear of individual voter fraud brings a short-term and a long-term advantage to those who would reduce the turnout of the disadvantaged and dispossessed. In the short term, it hobbles registration and turnout efforts. In the longer term, it helps to persuade state legislatures to pass laws that make it more difficult to vote.”

The majority of immigrant applicants for naturalization lead honest, hard-working lives, trying to do the right thing in the hopes of someday being justly awarded their rightful citizenship. These individuals must face every application for benefits, every tax form, and every governmental process with painstaking attention to detail. Unfortunately for some, the application for voter registration is too often not fully explained and the outcome of immigrant voter fraud takes a much higher toll on the well-meaning immigrant than on the integrity of the electoral process.

FOOTNOTE: [1] Permanent residency is the initial immigration application process after becoming married to a U.S. citizen. This is usually granted on a two year “conditional” basis, after which the couple must apply to remove the conditions on the immigrant’s residence. This application requires couples to prove the legitimacy of their union with detailed documentation.

Erica Ellen Phillips lives in Los Angeles where she is pursuing a Masters in Specialized Journalism (The Arts) at USC Annenberg School of Communication. She is editor and publisher of globalhuman, and writes for Venus Zine, Love, Chicago, and Is Greater Than.

View all articles by Erica Ellen Phillips.

Tags: election, voting