Biden-Harris Admin Is Fighting To Keep Noncitizens On Voter Rolls

Will states be allowed to remove noncitizens en masse from the voter rolls during the home stretch of the 2024 election cycle? If the Biden-Harris administration gets its way, the answer is likely no.

On Sept. 9, the Department of Justice (DOJ) issued guidance seemingly threatening legal action against governmental authorities and election integrity watchdogs who might work with them to clean voter rolls, should they endeavor to do so within 90 days of Election Day. The Biden-Harris DOJ claims such actions would violate the so-called “quiet period” provision of the National Voter Registration Act (NVRA) of 1993.

Now, the DOJ has made good on that threat, filing a lawsuit against the state of Alabama that could have national repercussions. At issue is an effort initiated by Alabama Secretary of State Wes Allen on Aug. 13 — some 84 days from Election Day 2024 — to inactivate and seek to remove non-Americans among a population of 3,251 individuals registered to vote in the state but who have been issued noncitizen identification numbers by the Department of Homeland Security.

The feds had stymied efforts to obtain a list of noncitizens residing in Alabama, causing Allen “to approach the issue in a different way,” according to a press release.

Groups Sue Alabama

Acknowledging that some of the 3,251 individuals might have become naturalized citizens after being issued noncitizen identification numbers, Allen indicated eligible voters would be able to update their information on a state voter registration form and vote in forthcoming elections.

Allen also instructed the state’s attorney general to probe and potentially criminally prosecute registered voters who had been issued noncitizen identification numbers.

A month later, the Alabama Coalition for Immigrant Justice and a slew of like-minded groups sued the state, alleging the list maintenance effort discriminatorily targets and burdens naturalized citizens and U.S.-born citizens wrongly swept into the state’s review, violating the U.S. Constitution and Voting Rights Act, and the NVRA’s aforementioned “quiet period” prohibitions.

On Sept. 27, the DOJ filed its own suit, also alleging Alabama’s list maintenance effort violated the NVRA’s “quiet period,” whereafter the two cases were consolidated. On Wednesday, Alabama filed a motion to dismiss the case.

Requiring Proof of Citizenship

The NVRA, also called “Motor Voter,” is at the crux of current controversies over illegal immigration and noncitizen voting. Passed in 1993, the law aimed to swell the voter rolls while guarding against fraud and ensuring the voter rolls were clean.

The congressional record shows that while the bill was being debated, Republicans were concerned that illegal aliens could end up on the rolls. One amendment to the bill offered by the late Democrat Sen. Jesse Helms and his Republican colleague, Sen. Alan Simpson, would have permitted states to ask for proof of citizenship of voter registration applicants. Congress killed the amendment in conference.

Instead, the NVRA would merely require that federal voter registration forms include a checkbox for an applicant to indicate he is a citizen under penalty of perjury.

The Supreme Court has not permitted states to require documentary proof of citizenship in federal elections — a loophole congressional Republicans have sought but failed to close through the SAVE Act that passed the House but died in the Senate earlier this year.

Consequently, as I reported at RealClearInvestigations, states have been engaging in list maintenance efforts and working to remove ineligible noncitizen voters on the rolls by the thousands this cycle — in the face of the Biden-Harris immigration policy of invasion, under which millions of illegal aliens have crossed into the country.

Cleaning Voter Rolls

Section 7 of the NVRA deals with voter registration administration. Its first sub-section calls on states to engage in list maintenance efforts, including removing eligible voters (i) at the request of a registrant, (ii) “as provided by State law, by reason of criminal conviction or mental incapacity,” (iii) should a registrant die, or (iv) should a registrant move.

The third sub-section deals with “Voter Removal Programs,” specifying that states must complete “any program the purpose of which is to systematically remove the names of ineligible voters from the official lists of eligible voters” no later than 90 days prior to a primary or general election for federal office — the so-called “quiet period” provision.

There are exceptions to this provision. States may remove voters if asked by registrants, due to criminal conviction or incapacity, death, or to “correct … registration records.”

On its face, if Alabama’s efforts constitute a “systematic” program to remove ineligible voters, one might think that the case against Alabama is open and shut. But there are problems with the plaintiffs’ reading, beyond the apparent absurdity that authorities could only “systematically” remove noncitizens from the voter rolls more than 90 days out from an election, thereby incentivizing massive fraudulent voter registration in the immediate run-up to an election.

Similar Florida Case

In 2012, the state of Florida too faced challenges from the then-Obama-Biden Justice Department, and a separate group of like-minded plaintiffs, to a list maintenance program targeting noncitizens on the grounds that it violated the NVRA’s “quiet period” provision.

The Sunshine State argued that the NVRA was silent on the removal of noncitizens from the voter rolls, just as it was silent on removing minors or fictitious individuals from the rolls — all of whom would have never been eligible to register to vote in the first place.

Conversely, it contended, the NVRA specified the grounds for removing previously eligible voters from the rolls, and then, in the 90-day quiet period, specified that a state was solely prohibited from implementing a systematic program targeting for removal eligible voters who changed their residence.

This led Florida to declare, in its case against the DOJ, that “the NVRA’s voter removal provision, as well as the quiet-period provision that modifies it, must be read to address only the removal of voters who were validly registered at one time.”

“None of them [the NVRA provisions] involves situations in which the individual was never eligible to vote in the first place,” the state added.

 “Congress either intended that states may remove noncitizens, minors, non-residents, and fictitious persons from the voting rolls at any time, or not all,” the state surmised.

At the trial court level, federal judges in the case against the Justice Department and the private plaintiffs agreed with Florida.

District Judge Robert Hinkle, who presided over U.S. v. Florida, wrote that the language of the statute indicates that “what Congress had in mind when it drafted these sections was removing a person on grounds that typically arise after an initial proper registration. Congress was not addressing the revocation of an improperly granted registration of a noncitizen … none of this [neither grounds for removal nor the 90-day quiet period] applies to removing noncitizens who were not properly registered in the first place.”

The judge presiding over the case brought by the non-government plaintiffs, Arcia v. Florida, argued that states’ ability to remove non-citizens from the rolls was governed by an entirely different provision of the NVRA. District Judge William Zloch noted that the second subsection of Section 7 of the NVRA, titled “Confirmation of Voter Registration,” sets forth the conditions to which states must adhere “to protect the integrity of the electoral process by ensuring the maintenance of accurate and current voter registration roll[s].”

By creating this subsection, distinct from the one covering voter removal programs, Judge Zloch said, “Congress meant to differentiate the removal of once-eligible voters from those who were never eligible in the first instance.”

“It must follow,” in his view, that the confirmation section “was meant to apply to programs aimed at removing those voters whose status as registered voters was void ab initio [from the beginning].”

Quoting his counterpart in Florida’s case versus the DOJ, he added that pursuant to the “confirmation” subsection “and in regard to ‘noncitizens, the state’s duty is to maintain an accurate voting list … But the NVRA does not require a state to allow a noncitizen to vote just because the state did not catch the error more than 90 days in advance.”

The plaintiffs in Arcia v. Florida, however, appealed. Subsequently, a three-judge panel from the 11^th Circuit Court of Appeals found, in a 2-1 decision, in their favor.

“[W]e do not accept [the] … argument that the NVRA distinguishes between the removals of registered voters who become ineligible to vote and registrants who were never eligible in the first place,” the majority wrote. Noncitizens can be removed from the voter rolls, the court concluded, but not under a program systematically removing them. The time limit, it asserted, was to ensure that broader and presumably less accurate means of cleaning the voter rolls might not unduly deprive large numbers of eligible voters from exercising their right to vote by being wrongly excluded from the rolls in the run-up to elections.

Relevance to Alabama Case

In its motion to dismiss, Alabama reserves the right to challenge the ruling in Arcia. But it believes it should prevail over the plaintiffs irrespective of that precedent — and even that that precedent supports the state.

Alabama’s program does not remove potential non-citizen voters from the rolls but rather puts them in inactive status. As the state put it in a separate filing, both active and inactive voters “can vote on Election Day. Inactive voters simply need to complete a reidentification/update form at the polls (or a voter registration form before the deadline).”

The potential non-citizen population Alabama identified received letters instructing non-citizens to request removal from the voter rolls, and U.S. citizens eligible to vote to complete voter registration forms to restore their active status.

Those who did not reply to the first batch of letters were to receive a second letter reiterating the instructions.

Those failing to update their voter registration or vote in the 2024 general election “will be placed on a path to be removed from the voter list in four years, following the 2028 General Election,” the state wrote.

The state emphasized that administrative removals associated with this process would only be executed after the 2028 general election — not within the final 90 days in the run-up to the 2024 election.

“Every eligible voter among the letter recipients remains eligible to vote,” the state wrote in its motion to dismiss.

Leaning on the Arcia case, the state added that:

“The Eleventh Circuit explained that the 90-day bar gives ‘eligible voters who are incorrectly removed [] enough time to rectify any errors.’ 772 F.3d at 1346 (emphasis added). Not only did Arcia emphasize the 90-day bar as a bar on removals; its rationale about having ‘enough time’ to correct mistakes plainly distinguishes the facts here. Inactive voters among the 3,251 do not need 90 days or even a day ‘to correct the State’s errors,’ id., because they can vote on Election Day without having taken any prior action—they will be given the update form at the polls.”

The state also believes its process is not systematic, since “the only removals happening as a result of the noncitizen letter process are those at the request of the voter, which are always permitted.”

“Alternatively,” Alabama writes, “the state is constitutionally empowered to remove people who are categorically ineligible to vote at any time. The NVRA expressly accommodated this power by permitting individual or systematic removals of felons and the deceased during the 90-days period, and the same should be the case for noncitizens.”

Echoing Florida and the trial judges presiding over its past cases, Hans von Spakovsky, manager of the Heritage Foundation’s Election Law Reform Initiative, said that the voter registration administration section of the NVRA applies to only those “eligible to register when they registered and describes how they can be removed.”

“The 90-day removal restriction also obviously doesn’t apply to an alien who was never eligible in the first place to even register at all. If it did, it would require a state to keep on the voter roll someone who broke both state and federal law by registering to vote and who can be prosecuted for remaining on the voter registration roll and not removing themselves. The NVRA obviously doesn’t require that and if it did, it would be unconstitutional.”

This would appear to be the position of the Biden-Harris administration.

Time will tell whether it prevails — and noncitizens are to receive the full protection of the federal government to protect voting rights never granted them, should they make it on the voter registration rolls within 90 days of elections.

Ben Weingarten is editor at large for RealClearInvestigations. He is a senior contributor to The Federalist, columnist at Newsweek, and a contributor to the New York Post and Epoch Times, among other publications. Subscribe to his newsletter at weingarten.substack.com, and follow him on Twitter: @bhweingarten.