Published: February 21, 2012

For the past 5 years, I have seen more than a few variations on the theme of the “accidental” voter or voter registrant. In all but the exceptional case, the non-U.S. citizen was lured into registering to vote, or voting, because of “Motor-Voter”, the federal law that directs states, like Illinois, to incorporate a voter registration option when accepting applications for driver’s licenses and State I.D.’s. Invariably, the accidental voter or registrant is led into the voter registration process by the blind robotics of the motor voter protocol as carried out at state motor vehicle facilities, even when the governmental official is presented with clear evidence that the person appearing before them is not a U.S. citizen.

Sometimes the foreign born applicant presents their foreign passport as identification, other times its their green card, employment authorization document or non-immigrant visa. Notwithstanding the presentation of clear proof of their foreign birth and citizenship, the foreign national is asked if they would like to register to vote. Some bite right away, and say yes, feeling it’s their duty not to reject such an honor, or at least not thinking there would be any question of eligibility since it’s a government official offering up this privilege. Then there are those who state very clearly that they are not U.S. citizens and understand they are prohibited by law from voting, but are nevertheless mistakenly advised to register anyway, since according to the official (again mistakenly), one does not need to be a US citizen to register, or, because simply it’s just nice to have an extra form of identification. Lastly, there is the voter registration that takes place without the applicant ever knowing it, until, that is, he ends up receiving a voter registration card in the mail.

From the government’s perspective, the voter registration process only goes forward after the applicant signs a document confirming that they are a U.S. citizen. And it is up to the individual to carefully review what they are signing before signing it. However, that line of reasoning does not take into account the bigger picture context in which the process plays out – such as with the above examples, where the foreign national is essentially relying – with good reason – on the guidance of a government official throughout the process, and are given every reason to believe they are eligible to register. And then later, the registrant is reasonably led to believe they are eligible to vote since a voter card is issued, and presumably only after a thorough eligibility assessment and screening process was carried out.

Now that we know where the problem is most often rooted, what’s the accidental voter, or registrant, to do if he is only a green card holder, and wants to apply for naturalization? Or, what if the registrant or voter still has yet to become a permanent resident, and now wants to apply for a green card? What are the risks of being denied, or even deported as a result of being ensnared into such an awful mess?

For Applicants for Naturalization: individuals who admit to voting or registering to vote certainly risk being not only denied US citizenship, but also placed in deportation/removal proceedings, especially the accidental voter. In both cases though, the interviewing officer has the power to exercise discretion, excuse the violations and still approve the case. That power is exercised often, but one cannot know with certainty how the process will play out ahead of time. But even in the worst case scenario where an applicant is denied and placed in removal proceedings, there is usually a remedy to avail of to have removal proceedings terminated. That is because the applicant will usually have a solid case to show that the registration process did not involve a purposeful, intended claim to U.S. citizenship (integral to voter registration), and that any action, whether it be registering to vote, or voting, was taken while relying on the guidance of a government official. In such a case, the act of voting should not be, and cannot be considered “unlawful”, and a basis to deport someone from the U.S.

For Applicants for Permanent Residence: individuals caught in the motor voter trap face a bigger challenge since prosecutorial discretion cannot be exercised to waive, or excuse, an alleged false claim to citizenship, or act of “unlawful voting”. On the other hand, as in the case of an applicant for naturalization, the arguments about relying on the guidance of government officials are just as strong. More likely than not though, those arguments will have to be presented before an Immigration Judge in removal proceedings, because a front line immigration officer will not want to consider those arguments and will summarily deny the application. For certain, in the realm of accidental voting or registration, the applicant for permanent residence faces greater risks than the applicant for naturalization, although as stated, a remedy may very well be available within the context of a defense to removal proceedings.

As we speak, the U.S. Court of Appeals for the 7th Circuit is considering a case dealing with this very issue. Hopefully, the accidental voter or registrant will find some well-deserved sympathy (and benefit from positive case-law) in that arena.

Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois