The Effect of the Border Crisis on U.S. Elections

Don’t overstate it — but don’t discount it either

By Andrew R. Arthur on May 17, 2024

One of the biggest enigmas of the administration’s immigration and border policies is the “why”—why Biden’s DHS has ignored congressional migrant detention mandates; why has his DHS secretary tied the hands of immigration enforcement officers; and why is the White House funneling tens of thousands of “inadmissible aliens” into the country each month with no expectation they’ll leave. One theory is that such policies will tilt this election and/or a future one in favor of the president and the Democratic party. But will the presence of millions of illegal aliens have an impact? The answer is likely yes, but it comes with caveats.

Before I continue, though, let me note that I have explained this “why” several times in the past, based on the administration’s own policy pronouncements. The administration won’t enforce the immigration laws because it views them as discriminatory and “inequitable”, as if they were some combination of Jim Crow, Plessy v. Ferguson, and poll taxes, with a healthy dose of old school “nativism” tossed in. Any other impacts are, from the administration’s perspective, just a bonus, or alternatively “collateral damage”.

The Massive Increase in the Foreign Born Under Biden. My colleagues Steve Camarota and Karen Ziegler recently released an analysis that revealed that the foreign-born population in the United States has hit new highs — both in raw numbers and in percentage. As of March 2024, 51.6 million foreign-born individuals were living in this country, comprising 15.6 percent of the U.S. population.

By comparison, during the “Great Wave” of migration in the 1890s, 9.2 million foreign-born individuals lived here, and they comprised 14.8 percent of the population. When it comes to accommodating and assimilating “newcomers”, the United States is in uncharted waters.

More saliently, as Camarota and Zeigler point out, the foreign-born population has increased by 6.6 million since President Biden took office, 58 percent of whom are here “due to illegal immigration”.

Note that Camarota and Ziegler admit this is an undercount, and that “the actual number of foreign residents in the United States is larger” than they are able to assess and measure. Regardless, it’s still a massive increase in the number of aliens who are residing here — both legally and illicitly.

The Bars to Alien Voting. More than a few (mostly on the right) have raised concerns that at least some of those aliens will vote in the upcoming general election. In response, many (mostly on the left) have contended that aliens can’t vote in federal elections, and thus such fears are overblown.

A federal criminal statute, 18 U.S.C. § 611, makes it a misdemeanor, punishable with a fine and/or up to one year imprisonment, for:

any alien to vote in any election held solely or in part for the purpose of electing a candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner.

There are exceptions for local elections, as well as for certain lawful permanent residents (“LPRs” or “green card holders”) who “reasonably believed at the time of voting” they were U.S. citizens.

Similarly, under section 237(a)(6) of the Immigration and Nationality Act (INA), “Any alien who has voted in violation of any Federal, State, or local constitutional provision, statute, ordinance, or regulation is deportable”, subject to the same exception under the criminal statute for lawful permanent residents who thought they were citizens. As an immigration judge, I heard a handful of such cases.

On the one hand, making illegal voting a crime and a removable offense should be sufficient to chill any instinct an alien would have to cast a ballot illegally. On the other hand, people violate criminal statutes and aliens commit deportable acts all the time, and Congress plainly must have had some concerns to pass both a criminal provision and a ground of deportability for such an offense.

EO 14019, “Promoting Access to Voting”. In March 2021, President Biden issued Executive Order (EO) 14019, “Promoting Access to Voting”, to “promote and defend the right to vote for all Americans who are legally entitled to participate in elections” and “expand access to, and education about, voter registration and election information, and to combat misinformation, in order to enable all eligible Americans to participate in our democracy”.

Those are laudable goals in the abstract (with the possible exception of the “misinformation” part, as its highly subjective, at best), but most notably that EO also calls on federal agency heads to “evaluate ways in which the agency can, as appropriate and consistent with applicable law, promote voter registration and voter participation”.

That’s not limited to agencies with direct impacts on voting and elections per se (like the Federal Election Commission, or “FEC”), but also on agencies throughout the government as a whole, including at the Departments of Agriculture (USDA); Housing and Urban Development; and Health and Human Services (HHS).

USDA administers the Supplemental Nutrition Assistance Program (SNAP), better known as “food stamps” (although it doesn’t issue stamps anymore), while HHS runs the Medicaid program, health benefits available to “certain low-income individuals and families who fit into an eligibility group that is recognized by federal and state law”.

HHS also has jurisdiction over the Temporary Assistance to Needy Families (TANF) program, which funds “monthly cash assistance payments to low-income families with children, as well as a wide range of services”.

While most aliens must wait until five years after they have received their green cards to be eligible for SNAP, TANF, and Medicaid, as I have explained previously, tens (to hundreds) of thousands of Cuban and Haitian nationals paroled into the United States under Biden administration policies are immediately eligible for those benefits, as are refugees and asylees, while all aliens — including those here illegally — are also eligible for so-called “emergency” Medicaid.

House Oversight Letter to OMB. It’s questionable whether USDA or HHS have authority to, for example, send voter registration forms to every SNAP, Medicaid, or TANF recipient, so it’s not surprising that Republican members of the House Oversight and Accountability Committee (OAC) sent a letter to the director of the White House’s Office of Management and Budget on May 13 seeking information on how this EO is being implemented.

The members expressed “concerns about the lack of constitutional and statutory authority for federal agencies to engage in any activity outside the agency’s authorized mission, including federal voting access and registration activities”, which were “exacerbated by the continued lack of transparency from federal agencies and the White House regarding the implementation of this executive order”.

The OAC letter specifically referenced a separate missive — from Michael Watson, Mississippi secretary of state, to Attorney General (AG) Merrick Garland — seeking guidance on how the EO “will impact voter rolls in states where certain felons are ineligible to vote”.

Notably, Watson explained therein that his office is:

concerned this program could lead to the registration of illegal aliens in Mississippi. Due to the Biden Administration’s border policies, millions of illegal aliens have not only been allowed into this country during the last three years, but they have also been allowed to stay. Many of these aliens have been in the custody of an agency of the Department of Justice including the Marshals. Our understanding is that everyone in the Marshals’ custody is given a form advising them of their right to register and vote. Providing ineligible non-citizens with information on how to register to vote undoubtedly encourages them to illegally register to vote, exposing them to legal jeopardy beyond their immigration status. [Emphasis added.]

Not included in the OAC communication was a similar letter, this one sent by GOP members of the South Carolina legislature to Gov. Henry McMaster (R), expressing concerns that the state’s own Department of Health and Human Services has been “providing non-citizens with voter registration forms”.

The members explained: “Earlier this week, a non-citizen refugee contact Representative Adam Morgan with proof that the South Carolina Medicaid office provided her with multiple voter registration forms — even after she informed office personnel that she is not a citizen.”

That letter does not directly reference EO 14019, but that would be a mighty big coincidence, if true.

“Motor Voter” and the Potential Impacts of Alien Voting. Which brings me to a 1990s act that takes its fair share of criticism for improper voter registrations. As Simon Hankinson with the Heritage Foundation recently noted:

The 1993 National Voter Registration Act, known as “Motor Voter,” was intended to make it easier for U.S. citizens to register to vote when they applied for or renewed a driver’s license. However, Motor Voter also made it easier for noncitizens to accidentally or purposefully get on voter rolls.


Some states are better than others regarding voter integrity. Virginia cross-references Motor Voter data with the Department of Homeland Security’s Systematic Alien Verification for Entitlements system, and “since 2014, has removed 11,000 ‘declared non-citizen[s]’” from the voter rolls, according to the Public Interest Legal Foundation. Meanwhile, the foundation is suing Wisconsin and Minnesota for lack of transparency with their voter rolls. [Emphasis added.]

That’s more than a handful of isolated incidents, and I’ll note that at a February 2015 hearing, the National Security Subcommittee at House Oversight (where I was staff director at the time), heard testimony from Heritage’s Hans von Spakovsky, arguably the leading expert on the issue of illegal alien voting.

Among other points, von Spakovsky explained:

In 2005, a GAO report said that it found that 3 percent of the 30,000 individuals called for jury duty from voter registration rolls over a 2-year period in just one United States district court were not U.S. citizens. Now, that may not seem like many, but 3 percent of registered voters would have been more than enough to provide the winning margin in Florida in 2000.

Also present at that hearing was then-Kansas Secretary of State (now Attorney General) Kris Kobach, who contended that “the problem of aliens registering and voting is very real”, offering evidence of two instances in which aliens had been apparently encouraged to vote — illegally — in local elections, one of which was decided by one vote.

Presaging the Virginia effort Hankinson referenced, Kobach delineated the problems with identifying aliens on — and removing them from — voter rolls once they are registered:

Once the alien gets on the voter rolls, there is no magical way you can say that must be an alien or that must be an alien. You cannot identify them once they are on, except for very limited ways, such as using your driver’s license database to crossmatch in those limited cases where the driver’s license indicates that it is an alien and not a citizen. So, this is an irreversible consequence. Once these individuals get on the voter rolls, you are not going to get them off except in very, very rare circumstances.

The Safeguard American Voter Eligibility (SAVE) Act. Kobach explained that Kansas was then one of four states that required applicants to offer proof of citizenship when registering to vote, which brings me to H.R. 8281, the Safeguard American Voter Eligibility (SAVE) Act, introduced on May 7 by Rep. Chip Roy (R-Texas).

The SAVE Act would ensure that only U.S. citizens are able to vote in federal elections by requiring states to review, in-person, proof of citizenship from individuals during the voter-registration process, and to strike aliens from voter rolls.

A press release for the SAVE Act quotes Sen. Mike Lee (R-Utah), who stated:

At a time when trust in voting is more important than ever, we must stop foreign election interference and pass the SAVE Act. Voting is both a sacred right and responsibility of American citizenship, and allowing the people of other nations access to our elections is a grave blow to our security and self-governance.

Congressional Apportionment. Those statements should be self-evident, but even when aliens don’t actually vote themselves, their presence in the United States impacts federal elections. Which brings me to congressional apportionment.

By way of background, as the Census Bureau makes clear:

Congressional districts are the 435 areas from which members are elected to the U.S. House of Representatives. After the apportionment of congressional seats among the states, which is based on decennial census population counts, each state with multiple seats is responsible for establishing congressional districts for the purpose of electing representatives. Each congressional district is to be as equal in population to all other congressional districts in a state as practicable.

Notice how the bureau never uses the term “citizen” in that statement. That’s because congressional districts are apportioned among the states according to how many people live in each state, not how many citizens there are there.

As Hankinson explained:

The more citizens in a state, the more congressional districts — i.e., seats in Congress — a state gets. In turn, the number of congressional districts in a state determines how many Electoral College votes that state receives.

While president, Donald Trump tried to restore the U.S. citizenship question on the 2020 census and exclude all noncitizens from apportionment calculations. Yet court challenges prevented him from doing so prior to the deadline for getting a new census form printed and distributed.

Here’s a simple example of how that plays out with respect to alien residents. According to DATA USA, in 2021, 95.2 percent of the residents of my current home state of North Carolina were U.S. citizens (the national average is 93.4 percent — many foreign-born individuals naturalize), a figure that rose to 97.4 percent in the state’s 11th Congressional District. That means that just 4.8 percent of state residents total, and 2.6 percent in NC-11, were aliens.

Compare that to California, where in 2021, 12.3 of the residents were aliens. In other words, alien residents were more than twice as prevalent, by percentage, in the Golden State than in North Carolina.

In the 44th Congressional District of California, however, aliens comprised 18.4 percent of the population, roughly seven times the percentage of aliens currently living in NC-11.

Moreover, because apportionment never equals out perfectly, there were 766,000 residents in NC-11 and only 714,000 in CA-44, a difference of 52,000 residents.

That’s plainly an issue in itself but do the math and it gets worse. Whereas there were about 746,500 U.S. citizens in NC-11, there were only just fewer than 583,000 citizens in CA-44 — a discrepancy of 163,000 citizens between the two districts in 2021.

Not all of those citizens can vote (some are younger than 18, and others are barred from voting), but a candidate for representative in NC-11 has to hustle for tens of thousands of more votes than his colleague in CA-44, and there was consequently a marginal but significant increase in each individual citizen’s voting power in the California district.

And because the electoral college is based, in part, on the number of congressional seats, that additional voting power in any given district translates to presidential elections, as well, buffered to some degree by the fact that Senate seats count toward state electors, too, and each state has two senators.

That discrepancy may be part of the reason why the current occupant of NC-11, Chuck Edwards (R), sponsored H.R. 7109, the Equal Representation Act (ERA). The bill would add a question to the 2030 census asking respondents to state whether they and/or other members of their households are U.S. citizens and require the Census Bureau to exclude aliens from the subsequent count for apportionment.

The ERA passed the House on May 8 on a party-line vote of 206 Republicans in favor and 202 Democrats opposed (11 members from each party didn’t vote), which shows that it’s going nowhere in the Democratic-controlled Senate.

If you are wondering why Senate Majority Leader Chuck Schumer (D) isn’t in a hurry to pass the ERA, consider the fact that while the population of his home state of New York increased by about 823,000 residents between the 2010 and 2020 censuses, that increase did not match the growth in the country as a whole, and so the state lost one congressional seat in the last decennial apportionment.

The influx of migrants who have arrived in the Empire State thanks to the administration’s border policies, however, would help New York hold on to the seats it currently holds and possibly add at least one — but only if apportionment isn’t limited to citizens. Heavily Democratic California also lost a seat, and the migrant surge would likely help there, too.

That said, red-state Texas and Florida would gain as well, but neither has had much of a problem of late convincing residents to abandon California and the Northeast and resettle in their environs. California and New York, on the other hand, need the aliens to maintain their respective electoral power.

Don’t Overstate the Effect of the Border in Coming Elections — but Don’t Discount It Either. The key takeaway is that, while you shouldn’t overstate the impact that millions of migrants who have entered illegally will have on either the next election or coming ones, you shouldn’t discount it, either.

Some migrants will likely attempt to register and vote, but there’s no way to state that it will be so few that it won’t make any difference or so many that it will tip the balance. When newcomers are receiving free food, housing, and medical care on the taxpayers’ dime, more than a few will likely conclude voting is just another perk of illicit entry.

Worse, however, unless there are razor-thin margins in key states, no one’s likely to go and try to figure out how many alien voters cast ballots illegally. Just the threat, however, is likely enough to convince some citizens to conclude that the game is rigged and stay home on Election Day.

If the president wants to “defend the right to vote for all Americans who are legally entitled to participate in elections” as he claims, he should start by preventing illicit alien voting — and the SAVE Act is a great place to start. And if he wants “all eligible Americans to participate in our democracy”, he may consider the ERA, a bill that places the electoral power in the hands of each citizen, equally.