Published November 15, 2017
On the topic of well-intended laws and unintended consequences, one of the first things that come to my mind is the law requiring local Department of Motor Vehicle facilities to ask all driver’s license applicants if they would like to register to vote. In theory, the National Voter Registration Act of 1993, or “motor voter” is a beautiful law – where prospective voters, many of whom would otherwise not go out of their way to register, are solicited and provided a convenient avenue to register to vote and have a voice in our electoral process. However, the reality is that for years too many ineligible applicants, such as non U.S. citizens, are being solicited and registered through no fault of their own. To be clear, non U.S. citizens are prohibited under law from registering to vote, or voting – and the act of registering or voting can subject the individual to deportation.
In July, 2018, Illinois will become the 11th state in the U.S. to implement a law mandating automatic voter registration at state departments of motor vehicles. In response, I cringe. Instead of being asked if they would like to register to vote, driver’s license applicants will be assumed to want to register unless they opt out. What that means, I am afraid, is that many more unsuspecting foreign nationals will end up getting registered, and reasonably believing that their vote is authorized after they are issued a voter card. After all, why would a foreign national intuitively assume their ineligibility to avail of a registration opportunity and engage in a civic act where the process is literally being dumped on them, and with little or no safeguards?
Take for example the recent high profile cases of Elizabeth Keathley (Keathley v. Holder, 696 F.3d 644, 645 (7th Cir. 2012)) and Margarita Fitzpatrick (Fitzpatrick v. Sessions, 847 F.3d 913 (2017)) . Both cases are of public record, and I was the attorney defending each of them in removal (deportation) proceedings, although in Margarita’s case I was her third and final attorney hired on appeal to attempt to repair what turned out to be an irreparably damaged case.
Both cases involve foreign nationals who displayed their foreign passports and other evidence of foreign citizenship as identification when appearing to apply for a driver’s license at their local DMV’s. Both were asked if they would like to register to vote, notwithstanding their presentation of obvious evidence of foreign citizenship. Both were waved through the registration process, allowed to register and eventually issued voter cards – again, even after openly disclosing their foreign citizenship. Relying on what they reasonably believed was the permission of these government officials, each voted in federal elections. Each however eventually ended up having to fight off deportation proceedings – with Keathley being successful in her federal court appeal and Fitzpatrick unsuccessful, even after seeking U.S. Supreme Court review.
For most who end up mistakenly registering, or even voting, some sort of legal remedy allowing the foreign national to defend against removal and remain in the U.S. is usually available. The success of such a defense will depend on a variety of factors, including the length of the foreign national’s U.S. residence and the extent to which the foreign national openly disclosed their foreign citizenship and reasonably relied on the cues of government official steering the process.
Based on the hundreds of clients I have met over the years who have either mistakenly registered or voted, I fear that automatic voter registration only means trouble for the foreign nationals residing in states where this law is in effect. Given the wonderful intentions and purposes that are at the heart of the initiative though, I hope I am wrong. In any case, noncitizens reading this should consider this article another reminder to resist any voter registration process that comes their way.
PUBLISHED November 15, 2017– “IMMIGRATION LAW FORUM” Copyright © 2017, By Law Offices of Richard Hanus, Chicago, Illinois