The Case for National Election Reforms
The Constitution gives states and localities power over elections, but federal legislation is urgently needed in several areas. Millions of noncitizens may be voting in US elections.
Two (or more) things can be true at the same time. America’s elections are largely safe and secure (some places more than others), but they also suffer from the greatest lack of confidence in their integrity in modern history.
It can also be true that irregularities and illegalities - fraud - occur in our elections. But while evidence exists, including of state officials unilaterally changing the rules to benefit one side over another, we’ll probably never know if enough of that occurred that would change outcomes. But that’s a problem, isn’t it? Isn’t it enough to impose common-sense safeguards and enforce existing laws while protecting someone’s right to vote before problems become evident?
No matter the candidates, there are few greater “threats to our democracy” than the lack of public confidence in the results of our supposedly “free and fair” elections. It troubles the hell out of me when partisans claim there isn’t enough fraud or irregularities to change election results; therefore, it’s not an issue. Nobody knows, and too few are looking. Why are we tolerating fraud or mismanagement of any kind?
The Constitution could be more specific regarding federal and state/local jurisdiction over elections. Here’s what it says:
Article I, Section 4, Clause 1:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
So, states run elections, but Congress can intervene. How much? Again, we don’t know. For example, we know Congress has set the dates for federal elections but leaves the hours when polls are open to states. They’ve also intervened in other ways, from voter registration to maintaining voter rolls. More about that in a moment.
It’s also important to remember that the Constitution confers the right to vote only to US citizens under Article II and at least four subsequent Amendments, most recently the 26th, which effectively lowered the voting age to 18.
During the pandemic, Congressional Democrats proposed a federal takeover of elections, including outlawing the requirement to present a valid photo ID at the polls and sheltering non-citizens from being prosecuted for illegally registering and voting. It was called HR 1, the “For The People” Act. Fortunately, it never became law, thanks to the inability of Senate Democrats to overcome a GOP filibuster. It still passed the then-Democratic-controlled House. Its constitutionality was in question but never tested.
Supreme Court decisions have clarified it somewhat, but not entirely. It hasn’t helped that federal courts, including the Supreme Court, have refused to hear cases where states like Pennsylvania violated the US Constitution and state laws over election administration in 2020’s controversial presidential election. State election officials, with the blessing of a partisan (Democratic) State Supreme Court, ignored or rewrote the law to allow mail ballots to be cast without required dates on envelopes or signature verification. Further, mail ballots can be received and counted several days after election day as long as they’re “postmarked” on election day without legislative approval.
“Voter intent,” they asserted, despite the voter not following the law. Some of the same people in charge of the Keystone State’s election processes going into the November elections continue to do little, if anything, to clean up dirty voter roles.
I’ve been absent from Pennsylvania since 2020, but despite repeated efforts to remove myself, I still showed up on their voter rolls until I raised hell earlier this year. Supposedly, Pennsylvania is a member of ERIC, the Electronic Registration Information Center, whose mission includes helping states “Improve the accuracy” of their voter rolls.
Turns out that’s a lie. The Public Interest Legal Foundation:
“Recently, Alabama, Florida, Iowa, Louisiana, Missouri, Ohio, West Virginia, Virginia, and Texas have left ERIC. The officials have cited concerns of partisanship and refusal by the ERIC board to pass meaningful reforms that would increase transparency.
“Additionally, state officials have complained about an ERIC requirement that states send voter registration information to all eligible but unregistered adults. An expensive and often redundant effort since these individuals were likely offered voter registration at the DMV and other places.”
It gets worse. “ERIC has put up a wall of secrecy in the voter list maintenance process. As part of the membership agreement, states are not allowed to share ERIC reports with the public. This violates the National Voter Registration Act (NVRA) that gives the public a right to inspect voter rolls and voter list maintenance documents.”
Let’s briefly discuss the National Voter Registration Act of 1993 since it’s back in the news about non-citizens being registered AND voting in US elections.
I was a Senate GOP leadership committee staff director in 1993 and remember the discussions among GOP Senators behind closed doors about the controversial “motor voter” legislation. A few GOP Senators, led by Kit Bond (R-MO), traded mandating voter registration at motor vehicle offices for provisions requiring period cleaning up voter rolls. Democrats had the votes to break a GOP filibuster.
I distinctly remember then-US Sen. Phil Gramm (R-TX) telling his 42 GOP colleagues (Democrats held a 57-43 majority back then) that they would “rue the day” they voted for or enacted the legislation.
Gramm was right.
First, many blue states, especially Pennsylvania, do a crappy job of updating and cleaning their voter rolls, in apparent violation of federal law, which the Department of Justice clearly is not enforcing (surprise, surprise). Second, the “motor voter” law that requires DMV (Departments of Motor Vehicles) offices to register voters is registering non-citizens, violating the law, whether attributed to incompetence, mistakes, or malice.
While states require registrants at motor vehicle offices to click a box attesting to their citizenship, there is no federal requirement for registrants to provide proof of citizenship when registering. While a few states do, an “honor system” is being violated. The evidence is undeniable that non-citizens (and dead people) are voting in US elections. That it is “too small” a number to change outcomes is a pathetic and unacceptable response as if we really know how extensive the problem may be.
Here’s some evidence, first from the Public Interest Legal Foundation (PILF), which has successfully sued jurisdictions for failing to enforce voter integrity laws. “We know that aliens are actually registering and voting,” former Federal Election Commissioner Hans von Spakovsky told the US House Committee on Administration last week. “Although we don’t know the extent of the problem, the vast majority of states are not verifying citizenship.”
“Noncitizens are, in fact, getting onto American voter roles,” testified J. Christian Adams at the same hearing, “and some of them are voting.” Adams is President and General Counsel of PILF and a former US Department of Justice elections official.
This is your reminder that at least seven million “noncitizens” have entered the United States, mostly across our open southern border, since January 2021, on top of 12 or so million more who entered the US in prior years. They dilute citizen representation in Congress, and some are voting as well. Remember, the Constitution’s census provision requires all residents to be counted, whether citizens or not, and those numbers are included for congressional district apportionment purposes. Efforts by the Trump Administration and prior Congresses to restrict apportionment only to US citizens were unsuccessful.
Democrats in Congress, of course, are gaslighting the media and the public into believing that it’s not a problem. Democrats in some local jurisdictions, especially in Maryland, Vermont, and California, allow non-citizens to vote in local elections. Only seven states, including Arizona, Ohio, and Florida, prohibit noncitizens from voting. Four states, including Wisconsin, have citizen voting referenda on the ballot this fall that would prohibit noncitizen voting.
Rule changes to allow noncitizen voting in local jurisdictions, including voting by mail or dropbox and some early-voting schemes, complicate local officials’ jobs to ensure voter integrity at all levels. As voting has become more complicated in recent years, doors have opened to mistakes and worse.
To complicate matters, efforts by some states to require documented proof of citizenship are being rebuffed by the courts. The League of Women Voters persuaded a federal judge in 2021 that a former U.S. Election Assistance Commission official violated federal law in 2016 when he allowed three states – Alabama, Georgia, and Kansas – to require documentary proof of citizenship on the federal voter registration form. No federal or state database exists or can be used to verify US citizenship.
Democrats think it is enough that attesting citizenship without proof is fine because they do so under “penalty of perjury.” The number of prosecutions for that is infinitesimal. “Noncitizens are not voting,” screams a headline by the far-left Brennan Center in 2017. Yet in 2020, 19 noncitizens were indicted by a federal grand jury in North Carolina for precisely that. It’s the only time I’ve found where such prosecutions have occurred. Maybe there are others.
Fast-forward to today. US Rep. Chip Roy (R-TX) recently introduced HR 8282, which requires proof of citizenship to register to vote. Senator Mike Lee (R-UT) is sponsoring its companion measure, S 4292. It’s called the Safeguard American Voter Eligibility, or SAVE Act. US Rep. Chip Roy’s bill has 67 cosponsors - not one Democrat.
Democrats responded by mocking the effort. “Here’s the part they’re not saying out loud: Speaker Johnson and House Republicans are not actually concerned about noncitizens voting in federal elections,” wrote US Rep. Joe Morrelle (D-NY), ranking Democrat on the House Administration Committee. “They admit they have no evidence to back up their claims. Their real ambition is to lay the groundwork for blame and obfuscation to do violence to the Constitution and deny the people their say in the outcome of this election.
“We have been here before. We cannot ignore the potential for another January 6,” he blasted, including the usual ad hominem attacks favored by left-wing partisans to castigate the voter integrity efforts. He falsely claimed that “States have several existing systems in place to deter noncitizen voting and individuals who violate the law face prison time and deportation.” He’s just fine with the “honor system” now in place. For the full panoply of Swiss-cheese-style arguments against providing proof of citizenship to register, click here.
The latest contribution comes from the website Just Facts.
Based on the latest available data and an enhanced version of a stress-tested methodology from a scholarly journal, a new study by Just Facts has found that about 10% to 27% of non-citizen adults in the U.S. are now illegally registered to vote.
The U.S. Census recorded more than 19 million adult non-citizens living in the U.S. during 2022. Given their voter registration rates, this means that about two million to five million of them are illegally registered to vote. These figures are potentially high enough to overturn the will of the American people in major elections, including congressional seats and the presidency.
The study isn’t perfect. “As is often the case with studies of illegal actions where enforcement is limited, both Just Facts’ study and the one from Electoral Studies have sizeable margins of uncertainty. This is due to relatively small sample sizes and other possible sources of error—some that could produce overcounts and others undercounts,” the website asserts.
This whole area remains shrouded in mystery, a situation exacerbated by states like Pennsylvania's refusal to cooperate with reform groups like PILF, the source of this:
In 2017, Pennsylvania Secretary of State Robert Torres made the shocking announcement that foreign nationals had been registering to vote in Commonwealth elections for decades.
Al Schmidt, then a member of the Philadelphia City Commissioners, testified before the Pennsylvania Senate that he was briefed by State Department officials on a department study that identified more than 100,000 registered voters who may have lacked U.S. citizenship at the time of their additions to the voter roll. Additionally, Schmidt demanded transparency and called on the department to release the details of their findings to county election boards.
Following Schmidt’s testimony, the Public Interest Legal Foundation requested under the National Voter Registration Act that the State Department provide documents showing the extent of the problem and what was done to fix it. When Torres refused the request, the Foundation sued in federal court.
Five years and three Pennsylvania Secretaries of State later, the Commonwealth is still fighting to keep these records from the public. In an ironic turn of events, the Secretary of State is now Al Schmidt. Where is the transparency he called for in 2017?
Some States Aren’t Doing Their Job
As Pennsylvania has repeatedly proven, too many states are either failing or refusing to enforce laws in various ways, opening the door for fraud, abuse, or errors that undermine confidence in elections. While over a dozen states have adopted reform laws to strengthen access to voting with integrity—easy to vote, hard to cheat—too many other states are going in the opposite direction. And there’s no evidence that such reforms make voting harder—just the opposite, in fact.
While I’ve long been loath to see federal legislation that mandates specific election procedures out of respect for the Constitution, our founders gave Congress the power to step in when necessary.
That time is now.
Congress needs to beef up laws and procedures to ensure that only citizens vote in all US elections and begin to place curbs on the scourge of “vote by mail” schemes, including allowing ballots to arrive days and weeks after an election. Well-documented problems with the US Postal Service in recent years should make it federal policy to promote in-person voting on election day or a few days before. The US Election Assistance Commission should help states replace signature verification systems with something better. And forcing states to clean up their voter rolls should be a no-brainer. While most states do a good job of that, too many skirt the law through incompetence or malevolence. While they’re at it, they should prohibit using private funds to supplement official election activity, including “Zuckerbucks” funded drop boxes that are often woefully unsupervised.
The House Administration Committee, ably led by US Rep. Brian Steihl (R-WI), has reported several good bills, it’s time for the rest of Congress to get serious.
The foundation of any democratic republic is clean and fair elections in which everyone, from voters to candidates, has confidence. There is no reason why California should take months to count votes after an election; Florida and most other states report their results within hours, if not a day or two.
Of course, don’t count on a nominally Democratic-controlled US Senate to take up anything that smacks of voter integrity. Sadly, it will have to wait, but kudos to the House GOP majority, especially Chairman Steihl, for at least pressing the issue.
This is an important and extremely well researched column. Good work.