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Unlawful voting by illegal immigrants poses threats to U.S. electoral integrity

State officials are raising an alarm about the potential for noncitizen, unlawful voting to substantially affect upcoming elections.  This is a major issue when considering the significant numbers of illegals entering and remaining in the United States, particularly during the tenure of the Obama Administration

An example is Ohio’s Secretary of State, Jon Husted.  In a letter  to the White House, Husted noted:

“   I write regarding the consequences the recent Immigration Accountability Executive Actions may have on the administration of federal and state elections. Consistent with federal and state law, states are responsible for ensuring the integrity of our elections. As a swing state with access to voting that is already expansive, Ohio takes this responsibility very seriously. In spite of our diligence maintaining accurate voter registration rolls, however, the recent executive actions could jeopardize their integrity by making it much easier for people who are not U.S. citizens to illegally register and cast ballots. As the chief elections official for the state of Ohio, I simply cannot allow this expanding loophole to go unaddressed.

“The source of the problem is that the recent executive actions enable millions of non-U.S. citizens to obtain valid Social Security numbers and driver’s licenses. Under federal law, any person with a valid Social Security number or driver’s license can register to vote, so long as they attest to their eligibility to do so.1 As a result, the recent executive actions dramatically expand the opportunities for illegal voter registrations in Ohio and other states by non-citizen voters who have valid forms of identification and who willingly or negligently affirm their eligibility to vote. This problem is especially serious in the context of third-party voter registration drives, which are prevalent in Ohio and other states. Such drives occur outside of the presence of election officials who could explain that citizenship—not mere lawful presence—is a fundamental requirement for registering to vote and who can caution non-citizens against erroneous attestations.

“In short, by enabling millions of non-citizens to access valid forms of the types of identification required to register to vote, the recent executive actions have increased the risk that non-citizens may illegally register to vote and vote in our elections…

“Voter confidence is paramount in all states, but magnified in swing states where our democratic system is put under the national and world microscope. If the recent executive actions remain in force, it is imperative that state elections officials be given real-time access to accurate, searchable, electronic databases of non-citizens who have valid Social Security numbers in order to distinguish between citizens and lawfully-present non-citizens…”

The Federal government under President Obama has not responded to states concerns about unlawful voting, particularly in relation to unlawful aliens. In a case pending before the U.S. Supreme Court, Kris Kobach, Kansas’s Secretary of States, challenges the U.S. Election Assistance Commission refusal to deferto the states’ determination that provision of documentary evidence of citizenship is necessary to enforce the states’ voter qualifications.

The True the Vote organization has filed an amicus brief in the case.  According to the brief:
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“In 2004, Arizona voters approved Proposition 200, which addresses the serious problem of noncitizen registration and voting by requiring applicants to provide documentary evidence of citizenship in order to register and vote in federal and state elections. A.R.S. § 16-166(F). Similarly, in 2011, the Kansas Legislature passed the ‘Secure and Fair Elections Act,’ which, inter alia, provides that an applicant must provide satisfactory evidence of United States citizenship in order to register to vote. At the suggestion of this Court in Arizona v. Inter-Tribal Council of Ariz., Inc., 133 S.Ct. 2247 (2013) (‘ITCA’), Arizona and Kansas (hereinafter, ‘the States’) requested that the Election Assistance Commission (‘EAC’) modify the state-specific instructions on the Federal voter registration form (hereinafter, ‘the Federal Form’).

“Proceeding under dubious authority in the absence of any commissioner, the Acting Executive Director of the Election Assistance EAC made the determination that the additional instructions were not ‘necessary’ to the States’ assessment of voter eligibility. Appendix to Petitioners’ Petition for Writ of Certiorari … In so doing, the Acting Executive Director found that the States’ evidence of over 200 specific cases of noncitizen voter registration ‘fail[ed] to establish that the registration of noncitizens is a significant problem in either state.”

“Amicus files this brief in support of Petitioners’ petition for writ of certiorari (‘Petition’) for two reasons: (1) the EAC’s determination, reinstated by the Tenth Circuit, constitutes a usurpation of a power guaranteed to the States by the Constitution of the United States and (2) to present clear evidence that the Federal Form has failed to prevent noncitizen registration.

“Amicus files this brief in support of Petitioners’ petition for writ of certiorari (‘Petition’) for two reasons: (1) the EAC’s determination, reinstated by the Tenth Circuit, constitutes a usurpation of a power guaranteed to the States by the Constitution of the United States and (2) to present clear evidence that the Federal Form has failed to prevent noncitizen registration…”

A 2004 study by the Federation for American Immigration Reform  noted:

“There is evidence that noncitizens are being registered and casting votes, but due to the laxity in checking the eligibility of registrants and voters the full extent of the problem is not known. One of the most extensively documented cases of illegal voting was in California in 1996. Loretta Sanchez, a Democrat, defeated Republican incumbent Robert Dornan by 984 votes. Dornan called for an investigation of alleged illegal voting by noncitizens. According to Congressional Quarterly…’Task force Chairman [U.S. Representative] Vernon J. Ehlers, R-Mich., said investigators had found concrete evidence of 748 illegal votes by noncitizens…’

“A lack of attention to the phenomenon of noncitizen voting and a failure to impose penalties against those who cast votes fraudulently has rendered laws against such activity meaningless. It is a federal crime to vote illegally. However, in all cases that have been documented of illegal voting in recent years there apparently has never been a prosecution and, therefore, no penalty has been assessed. Some of the cases involved the discovery of illegal voting by aliens during investigation of applicants for U.S. citizenship. Even though illegal voting could have made the alien ineligible for U.S. citizenship, the disqualification was waived. Therefore, the penalty in the law against illegal voting could be likened to a paper tiger.”

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Incumbency Protection

Americans are justifiably angry that key challenges such as reviving the economy, defending the nation, and encouraging the growth of employment remain unresolved by their leaders.

Are career politicians too comfortable in “managing,” rather than resolving problems? Some believe that incumbents, relatively secure in their positions, aren’t doing enough to address the problems faced by the citizenry.  In some states, such as New York, more elected officials leave office through death or indictment rather than by losing re-election campaigns.

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“Low contribution limits are especially attractive to incumbent legislators because they allow these officials to claim that they are not influenced by lobbyists or special interests (although research refutes the contention that the presence or absence of contribution limits has any effect on the factors influencing elected officials), and because low limits often perversely serve as an incumbency protection measure. Challengers, who oftern have significantly less name recognition and lack an established donor base, typically spend more time fundraising than incumbents. In this manner, limits on the size of campaign contributions have the effect of disproportionately harming challengers. This is yet another reason why the Center argues against the imposition of low contribution limits on what individuals can contribute to their favored candidates.”

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First Amendment Under Sustained Attack

Two further serious attacks have been made on First Amendment rights. The ongoing attempts to limit this most fundamental American freedom are serious, substantial, and persistent.

In a stunning report first reported by the New York Post, The New York State Board of Elections has enacted blatantly unconstitutional “emergency regulations” that they threaten to make permanent within a month. The new measures regulate spending by any citizen or group that voices its opinion on any issue.  Failure to comply could produce penalties.

If a citizen, concerned about a particular issue, merely prints out and distributes a flyer to 500 or more people, in which he or she encourages the passage or defeat of any ballot proposal or candidate, they must first comply with the bureaucratic procedures of the Board. The same applies to any broadcast or published statement.

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Legislative measures such as these, combined with the increasingly restrictive measures enacted by numerous boards of elections, campaign finance authorities and the like are a direct threat to free speech. They frequently arise in the context of “progressive-” or “liberal-”  dominated agencies seeking to limit the influence or electoral chances of more centrist or conservative groups.

These and similar attempts must be seen in the context of attempts by two prominent Democrat senators, Tom Udall (D-New Mexico) and Charles Schumer (D-New York), who proposed a measure that would limit free speech protections as they pertain to campaign donations. The proposed legislation gained 43 Senate supporters—all Democrats. At a Senate Rules Committee hearing earlier this year, Schumer stated that “”The First Amendment is sacred, but the First Amendment is not absolute. By making it absolute, you make it less sacred to most Americans.”

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Conyers Decision Reinforces Unfair Advantages of Incumbnents

Despite failing to meet the signature requirements to run for re-election, a federal judge has ordered Rep. John Conyers (D-Michigan) restored to the ballot.

Michigan’s Secretary of State had ordered Conyers name removed because he failed to collect the appropriate number of petition signatures.  The Conyers campaign used collectors who were not registered voters, and the signatures collected were not valid according to Michigan law.

But Conyers has been in office for 49 years, and received consideration that his challenger clearly would not have been given.

A growing trend towards enhancing the already considerable advantages of incumbents, whether they be president of the United States or a local town legislator, has virtually stagnated the American governing process.  Ironically, many of the approaches advertised as levelling the playing field such as campaign finance regulations, have served only to enhance incumbents’ power due to the fact that challengers rarely have the experience or the resources to comply with complex and onerous regulations and filing requirements.
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A study by Politico notes that 90% of House members and 91% of senators who sought re-election in 2012 were successful, as was President Obama.  The rate is difficult to explain beyond the power of incumbency, since there was widespread dissatisfaction with both federal legislators and the White House.

Beyond special treatment by Boards of Election and gimmicks such as campaign regulations that favor incumbents, a media that largely under-reports challengers also plays a significant role.

Limiting the role of spending, often advertised as a means of levelling the playing field, tends to help incumbents.  Challengers, with less name recognition and less access to media attention, generally need to spend more to be competitive.

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Have Campaign Regulations Helped or Harmed American Elections?

To many, the regulation of political campaigns is a matter of deepest principle, an essential tool in preventing corruption. To others, it is an intense and unacceptable violation of the First Amendment, an attempt by bureaucrats to hinder candidacies that don’t have the support of party bosses and other powerful elites.  Critics of the concept point to the success of ultra-rich candidates who gain an edge since they can finance their own elections without dealing with campaign restrictions on donations.

A Congressional Research Service Report to Congress described the dynamic tension:

“Campaign finance regulation invokes two conflicting values implicit in the application of the First Amendment’s guarantee of free political speech and association. On the one hand, political expression constitutes “core” First Amendment activity, which the Supreme Court grants the greatest deference and protection in order to “assure [the] unfettered interchange of ideas for the bringing

about of political and social changes desired by the people.”

On the other hand, according to the Court in its landmark 1976 decision, Buckley v. Valeo, an absolutely free “political marketplace” is neither mandated by the First Amendment, nor is it desirable, because when left uninhibited by reasonable regulation, corruptive pressures undermine the integrity of political institutions and undercut public confidence in republican governance. In other words, although the Court reveres the freedoms of speech and association, it has upheld infringements on these freedoms in order to further the governmental interests of protecting the electoral process from corruption or the appearance of corruption.”

 MAJOR CHANGES HAVE OCCURRED RCENTLY

 Legal and legislative wrangling over campaign regulation has been particularly active since 2002, when Congress considerably altered campaign finance law in the Bipartisan Campaign Reform Act. The recent study, “The Constitutionality of Campaign Finance Regulation: Buckley v. Valeo and its Supreme Court Progeny” notes:

“The Supreme Court’s 2010 ruling in Citizens United v. FEC and a related lower-court decision, SpeechNow.org v. FEC, arguably represents the most fundamental changes to campaign finance law in decades. Citizens United lifted a previous ban on corporate (and union) independent expenditures advocating election or defeat of candidates. Speech Now permitted unlimited contributions to such expenditures and facilitated the advent of super PACs. Although campaign finance policy remains the subject of intense debate and public interest, there have been few legislative or regulatory changes to respond to the 2010 court rulings. This report considers these and other developments in campaign finance policy and comments on areas of potential conflict and consensus. Legislative activity to respond to the rulings has focused on the DISCLOSE Act, which passed the House during the 111th Congress, and was reintroduced during the 112th and 113th Congresses (H.R. 148). Recent alternatives, which include some elements of DISCLOSE, include 113th

Congressional bills such as Senators Wyden and Murkowski’s S. 791, or proposals that would require additional disclosure from certain 501(c) groups.”

The recently released 5 to 4 Supreme Court decision in the matter of McCutheon et al v. Federal Elections Commission complies with the view that attempts to interfere in the electoral process in ways not specified by the Constitution must be carefully screened to insure that they do not violate the First Amendment.

The decision is consistent with the 1976 decision in Buckley v. Valeo: “The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”

Chief Justice Roberts delivered the decision, noting that corruption would be held in check by limiting how large a single donation could be.

In its 5-4 decision, the Court held that “The right to participate in democracy through political contributions is protected by the First Amendment, but that right is not absolute.  Congress may regulate campaign contributions to protect against corruption or the appearance of corruption…It may not, however, regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others.”

That part of the decision—stressing that campaign regulations cannot be used to enhance the influence of some at the expense of others– is of extraordinary importance. Although the McCutheon case involves the question of aggregate limits on individual political contributions, that part of the decision may be seen as a cautionary note that the growing environment at the federal, state and local levels of campaign regulation may be violative of free speech rights.

HAS CAMPAIGN REGULATION HELPED OR HURT?

Research indicates that campaign regulation efforts have not achieved the goal of reducing the influence of money in politics.
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A study by the CATO institute found that “…there is no serious evidence that campaign finance regulation has achieved or will achieve its goals of reducing the influence of money, opening up the political system, and lowering the cost of campaigns.  Indeed, since the 1974 amendments to the Federal Election Campaign Act, spending has risen sharply, the number of political action committees and the amount of PAC spending are up, and incumbents have increased both their election rate and the rate at which they outspend their challengers.”

Campaign regulation, particularly in the distribution of public funds to aid campaigns, has been abused in a number of ways. In some localities, New York City being a significant example, local Campaign Finance Boards have used their authority to heavily and unlawfully influence the outcome of elections and enhance the power of political bosses.  In one extraordinary example, a candidate for New York City Council was a former State Assemblyman who had challenged the powerful Assembly Speaker frequently criticized for his iron rule and conflict of interest activities. The candidate was clearly not a favorite of the city’s political establishment. A highly irregular application of an ex post facto regulation  was devised to deprive the candidate of funds, and to extract a penalty as well.

The expertise required to comply with reporting requirements and other campaign regulatory measures gives political professionals and party bosses an advantage over novices running for office. In some ways, the gauntlet of regulatory compliance and restrictions on fund raising makes American politics resemble that of ancient Rome, where leadership was restricted to a small field of “great men” with the personal resources to run.

As noted by the CATO study,

“ Limitations on contributions and spending, by definition, require significant regulation of the campaign process, including significant reporting requirements as to amounts spent and sources of funds. Such regulation creates opportunities to gain an advantage over an opponent through use of the regulatory process, and litigation has now become a major campaign tactic. Typically, regulation favors insiders already familiar with the regulatory machinery and those with the money and sophistication to hire the lawyers, accountants, and lobbyists needed to comply with complex filing requirements. Indeed, there is some evidence that campaign enforcement actions are disproportionately directed at challengers, who are less likely to have staff familiar with the intricacies of campaign finance regulation.

Perhaps those most likely to run afoul of campaign finance laws are unaffiliated individuals engaged in true grassroots activities. For example, in 1991 the Los Angeles Times reviewed Federal Election Commission (FEC) files and found that 62 individuals had violated FECA contribution limits by making total contributions of more than $25,000 to candidates in the 1990 elections. As the Times noted, though many of these 62 were “successful business people” who ‘usually have the benefit of expert legal advice on the intricacies of federal election laws,’ the next largest group of violators consisted of ‘elderly persons . . . with little grasp of the federal campaign laws.’ Political involvement should not be limited to those with “the benefit of expert legal advice on the intricacies of federal election laws.”

FOREIGN CONTRIBUTIONS

Recent decisions of the Supreme Court—including both the McCutcheon case and Citizens United—have taken positions protective of the First Amendment.

The ban on any contributions from foreign sources, not part of the McCutheon case, continues.  Scandals involving contributions from foreign sources have affected both the Clinton and Obama campaigns.

According to a Washington Times report the web site Obama.com, owned by a China-based American business man, which attracted an overwhelming majority of foreigners to it, routed visitors to a donation site. Other published reports  have revealed that an Obama web site accepted donations from abroad, while a similar Romney site rejected similar foreign donations.

Bill Clinton’s presidential campaign was also linked to a serious foreign contribution scandal. Approximately $100,000 from China’s military was funneled to the Democrat campaign in the summer of 1996 by the daughter of a top general in the People’s Liberation Army, General Liu Huaqing.  The funds were not returned until after an investigation revealed the illegal activity.

Both the limits themselves, and the complicated system of reporting under federal, state and local campaign finance regulations, can be seen as favoring “party-boss” backed candidates who have both access to the specialized skills necessary to timely provide mandated filings as well as access to the type of fund-raising abilities that comply with the regulations.

CONCLUSION

Campaign regulations were enacted with good intentions, and when sharply limited to attack outright corruption, have some utility.  In practice, however, they frequently afoul of the First Amendment, and have, by empowering political bosses and “professionals,” as well as opening the door for unlawful interference in the electoral process, caused more harm than good.