Wednesday, July 19, 2017


President Donald Trump’s May 11, 2017 Executive Order (EO) establishing the Presidential Advisory Commission on Election Integrity is overbroad and unfocused. Section 3 (a) and (b), for instance, authorizes inquiry into anything that might “enhance” or “undermine” public confidence in the integrity of elections, which could include media or polling biases, money, gerrymandering, or otherwise.  

The EO should be narrowed to examining whether a cluster of federal laws prohibiting non-citizens from registration or voting have been adequately enforced by U.S. Attorneys or the Criminal Division of the Department of Justice.  The President, after all, is constitutionally entrusted with of taking care that the laws be faithfully executed under Article II, section 3.   

Concrete evidence of non-citizen voting is not required to justify an Advisory Commission investigation.  To paraphrase the U.S. Supreme Court in United States v. Morton Salt (1950), even if the Commission seeks information “caused by nothing more than official curiosity, nevertheless law enforcing agencies have a legitimate right to satisfy themselves that [voting] behavior is consistent with the law and the public interest.” And public confidence in the integrity of elections is a cornerstone of stable government and the rule of law.

The Supreme Court held in Oregon v. Mitchell (1970) that Congress is empowered by regulate voter qualification in federal elections under Article I, Section 4 and the Necessary and Proper Clause of Article I, section 8, clause 18.  Acting under that authority, Congress enacted the National Voter Registration Act of 1993 to require registrants that vote in federal elections to affirm their United States citizenship.  

Voting by aliens in federal elections is made criminal under 18 U.S.C. § 611.

An alien is deportable under 8 U.S.C. § 1227 for voting in violation of any federal, state, or local constitutional provision, statute, ordinance, or regulation.

Pursuant to 42 U.S.C. § 1973gg-10(2), any false statement concerning an applicant’s citizenship status that is made on a registration form submitted to election authorities is a crime.

An alien that willfully and falsely represents himself as a United States citizen to election officials or otherwise commits a criminal offense under 18 U.S.C.  § 911.

And a non-citizen who falsely claims United States citizenship to register to vote commits a crime under 18 U.S.C. § 1015(f).

It is also a crime under 18 U.S.C. §2 to counsel, aid, abet, command, or induce a violation of these voting or registration prohibitions on non-citizens.

President Trump’s Advisory Commission should be tasked to investigate whether they have been substantially circumvented in the past or are vulnerable to circumvention in the future because of hacking into electronic databases or otherwise.  The Commission should consult with the 94 United States Attorneys for all 94 federal districts, the Criminal Division of the U.S. Department of Justice, and the FBI’s Special Agents in Charge.  They should be asked to share the resources they currently devote to detecting and prosecuting violations of the above-referenced prohibitions on non-citizen voting and whether more resources are needed to insure against systematic evasions.  Attorney General Jeff Sessions should be asked what he did as United States Attorney for the Southern District of Alabama to detect and prosecute voting or registration by non-citizens.

The Commission should hold televised public hearings to receive testimony from experts and state election officials about evidence of non-citizen voting.  All testimony should be published electronically and open for public comment for 60 days.  The Commission should prepare a draft report to the President addressing whether new laws are needed or the enforcement of existing laws need upgrading to prevent non-citizens from registering or voting in federal elections.  The Commission should consider the advisability of a special unit within the Criminal Division or U.S. Attorneys’ offices to focus exclusively on non-citizen voting violations.  The draft report should be open for public comment for 90 days before submission of the final report.

Enforcement of our federal prohibitions on non-citizen voting is too important to be left to conjecture or speculation.

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