3 Ways Congress Can Safeguard American Elections Against Foreign Intervention

Preserving and protecting the ability of American citizens to participate fully in our democratic system is one of the most important duties of Congress. That requires ensuring that aliens — whether they are here legally or illegally — are not unlawfully registering and voting, raising and spending money to support or oppose candidates and referenda, and distorting and diluting the representation of citizens by being included in apportionment and redistricting in federal, state, and local elections.

While there is a great deal that the states can do to protect their citizens from alien interference in the election process, many of the responsibilities for accomplishing those objectives reside with Congress due to its authority over all aliens under the naturalization clause.

Alien Registration and Voting

What do the following aliens have in common? All of them unlawfully registered and voted in North Carolina before they were caught and removed from the rolls:

Alessandro Cannizzaro (Italy), Roberto Hernandez-Cuarenta (Mexico), Jose Cruz Solano-Rodriguez (Mexico), Ramon Esteban Paez-Jerez (Dominican Republic), Jose Jaime Ramiro-Torres (El Salvador), Dieudonne Soifils (Haiti), Guadalupe Espinosa-Pena (Mexico), Maria Rufina Castillo-Boswell (Philippines), Dora Maybe Damata-Rodriguez (Panama), Juan Francisco Landeros-Mireles (Mexico), Hyo Suk George (Korea), Merious Jean (Haiti), Daniel Tadeusz Romanowski (Poland), Diana Patricia Franco-Rodriguez (Mexico), Ruth Elizabeth Bran (Guatemala), Elizabeth Nene Amachaghi (Nigeria), Gabriela Guzman-Miguel (Mexico), Jose Abraham Navarro (Mexico), and Joshua Workman (Canada).

We know that aliens are registering and actually voting, although we do not know the extent of the problem since the vast majority of states are not verifying the citizenship of registered voters. But the indicators that it is occurring are there, and it is important to understand that every vote by an alien cancels and effectively voids the vote of a citizen.

As an example, when I served on the Electoral Board of Fairfax County, Virginia, we discovered 278 individuals registered to vote who were not U.S. citizens; 117 of them had voted before we were able to remove them from the voter roll. Since it is illegal under both federal and Virginia law for an alien to register or vote by falsely asserting citizenship, we submitted information about these aliens to both the local prosecutor and the U.S. Department of Justice. Neither took any action to investigate or prosecute these cases, illustrating one of the problems in this area — too many prosecutors refuse to enforce the law even when such illegal behavior is discovered by election officials or others.

The Public Interest Legal Foundation has issued numerous reports on its findings based on official registration records of thousands of aliens who are registered in various jurisdictions including Arizona, Illinois, Michigan, North Carolina, New Jersey, Pennsylvania, Virginia, and sanctuary cities like Philadelphia and Chicago. Yet, despite its publication of these reports, virtually no prosecutors have expressed any interest in obtaining this data from the Public Interest Legal Foundation in order to investigate and potentially prosecute these aliens for their felony violations of state and federal laws.

One of the most-cited, and also most-criticized, studies from 2014 by three scholars based on a national voter survey and a database of registered voters estimated that about one quarter of aliens in the U.S. are registered to vote. The study estimated that 6.4 percent of aliens present in the U.S. voted in the 2008 presidential election and 2.2 percent voted in the 2010 congressional election. The same study found 14.8 percent of aliens admitted they were registered to vote in 2008 and 15.6 percent admitted they were registered in 2010.

A new study that reexamined that data as well as more recent data from the 2022 election points out the “unrealistic assumptions” and flawed analyses of the critics of the original 2014 report. This new study not only affirms the conclusions of the 2014 report, but, based on an analysis of the more recent data, estimates that 10 to 27 percent of all aliens currently in the U.S. are registered to vote and that “about 5 to 13 percent of them will illegally vote in the 2024 presidential and congressional elections.”

Preventing Alien Registration and Voting

The maintenance of voter registration records is almost entirely a state responsibility. It is, however, an area where federal cooperation is required. That includes giving state election officials access to Social Security Administration records as required by the Help America Vote Act, as well as other relevant federal databases. States should be given unfettered access to these databases.

The National Voter Registration Act should be amended to require the clerks of all federal district courts and all U.S. attorneys in all federal districts to provide relevant information about voter ineligibility gained from jury selection to state election officials, particularly lack of citizenship. A report in 2005 by the U.S. Government Accountability Office found that up to 3 percent of the 30,000 individuals called for jury duty from voter registration rolls over a two-year period in just one U.S. district court were not U.S. citizens.

Congress should further amend the NVRA, to make it clear that the NVRA does not prohibit states from requiring voting registration applicants to provide proof that they are U.S. citizens. Due to its constitutional authority over aliens, the federal government also has the authority to require such proof from individuals registering to vote in federal elections. Barring states from requiring the same proof as to citizenship when it comes to voting makes no sense and deprives states of information essential to determining voter eligibility.

The federal “Application for Naturalization” form asks whether an applicant has “EVER registered to vote or voted in any Federal, state, or local election in the United States?” When an alien answers “yes,” the Department of Homeland Security should be required by federal law to provide that information to election officials so they can remove the alien from the registration list and also to state and federal prosecutors so they can investigate for possible prosecution.

The move by some local jurisdictions, such as the District of Columbia and New York City, to allow aliens to vote in local elections is fundamentally unfair to citizens. Moreover, by allowing any adult who has resided in the nation’s capital for 30 days to vote, there is nothing to prevent illegal aliens or employees of foreign embassies from voting in local elections, including diplomats from foreign governments that are openly hostile to the United States. Such a distortion of our democratic process is a recipe for foreign interference in our elections and should not be allowed.

Foreign Interference in State Referenda Elections

Federal campaign finance law prohibits foreign governments and aliens from participating in local, state, and federal elections of candidates for office, but it does not prevent them from participating in elections involving referenda and issue-based ballot measures.

Although Congress’s constitutional authority to proscribe the rules governing state and local elections is limited, the Federal Election Campaign Act (FECA) bans foreign interference in state and local elections as well as federal elections. Congress should amend FECA to extend the candidate election ban to all elections involving referenda and issue-based measures, as well as recall elections, to prevent foreign interference and intrusion into the state referendum process. H.R. 3229, the “Stop Foreign Funds in Elections Act,” would do exactly that.

Distorting Representation: Apportionment and Redistricting

The U.S. Constitution mandates an “actual Enumeration” of the U.S. population every 10 years. That enumeration is used to determine the number of members in the House of Representatives to which each state is entitled.

But the reapportionment after the 2020 census was based on the country’s total population, which includes aliens who are here both legally and illegally, even though they have no right or ability to participate in our democratic political process. In addition to distorting representation in the House of Representatives, that reapportionment also affects the outcome of presidential races, since this same apportionment determines how many votes a state has in the Electoral College.

The Trump administration unsuccessfully tried to add a citizenship question back to the 2020 census form; the question first appeared in the 1820 census. Although the Supreme Court specifically held that the Constitution’s Enumeration Clause “permits Congress, and by extension the Secretary [of Commerce], to inquire about citizenship on the census questionnaire,” it didn’t allow the Trump administration to go forward with adding a citizenship question.

But the Supreme Court’s decision makes it clear that H.R. 7109, which just passed the House of Representatives and restores the citizenship question to the census, is well within the authority of Congress.

How bad is the distortion in representation in the House caused by including aliens, both legal and illegal, in apportionment? A 2019 study by the Center for Immigration Studies estimates that if aliens were removed from the apportionment population, these eight states would each gain a congressional seat: Ohio, Michigan, Missouri, Minnesota, Alabama, Idaho, West Virginia, and Rhode Island. California alone would lose three seats, since it has the largest population of illegal aliens in the country, while Texas would lose two seats, and Florida, New Jersey, and New York would each lose one seat.

Given the unprecedented influx of millions of aliens into the U.S. illegally in recent years, the distortion in representation no doubt has grown even worse. Including aliens in apportionment dilutes the votes and political representation of American citizens. It unfairly gives political power to states that deliberately obstruct enforcement of our immigration laws and implement sanctuary policies intended to attract illegal aliens who endanger the safety of the public and cost taxpayers huge amounts of money.

This is a transcript of testimony given to the House Administration Committee on May 16. It has been edited for length.