Can ICE Solve the Vexing Question of How Often Aliens Vote Illegally?

By Dan Cadman on January 5, 2018

President Trump has dissolved the voter fraud commission that was announced with such fanfare not long ago. It was supposed to deal with the pressing issue of whether, and how much, state electoral rolls were infiltrated with ineligible voters: people registered in more than one state; people who aren't supposed to vote because of mental infirmities or criminal convictions; the dead; and, most significantly, aliens (for whom voting in federal elections is both a crime and a deportable offense, even if they are permanent residents, since voting is reserved for citizens).

The reason for dissolution is apparently because the commission was steadfastly resisted by a number of states, which flat-out refused to provide their rolls for examination. Giving up rather than forcing the issue through the courts is a curious decision and very un-Trump-like.

The president and one of his earliest and most steadfast supporters, Kris Kobach, Kansas secretary of state and also co-chair of the commission, suggest that Immigration and Customs Enforcement (ICE), an agency within the Department of Homeland Security (DHS), will pick up where the commission left off.

Already journalists and so-called "experts" are questioning that decision and raising the same tired assertion that the commission was pointless since there's "no evidence" to have supported its existence in the first place.

Take, for instance, a ProPublica article titled "Trump's Voter Fraud Commission Is Gone, But Scrutiny Will Continue". It begins:

The president dissolved the commission and indicated that the Department of Homeland Security will continue its mission. Experts say DHS won't achieve the results he wants — and critics won't back down.

In an unexpected executive order on Wednesday night, President Donald Trump abruptly dissolved the Presidential Advisory Commission on Election Integrity, which he'd set up after alleging with no evidence that he lost the popular vote because of millions of illegal votes. In a statement, he said the Department of Homeland Security will take up the commission's mantle while avoiding the "endless legal battles" that bedeviled the commission in its brief existence. (For a history of the commission's many woes and stumbles, see ProPublica's chronology.) But experts say the scrutiny and resistance that the commission faced will persist. They are skeptical DHS will achieve the results Trump claims.

Contrary to what critics have suggested, there has in fact been evidence of voter fraud discovered in a number of studies, but those studies have been limited in duration and scope, due in no small part to the intransigence of electoral officials in lending their help; the same kind of intransigence that the president's commission confronted immediately after its creation, and continued to experience on a recurring and routine basis.

This seems to be one of those situations where the individuals who most loudly assert that there's no evidence to support the notion that aliens vote illegally go to extraordinary lengths to ensure that there will never be an adequate examination of this important issue. Why would this be, one wonders, if they are so certain there's no problem?

Whether or not DHS "will achieve the results Trump claims", in the words of ProPublica, is almost beside the point. The point, ladies and gentlemen, is to conduct the examination of voter rolls thoroughly and systematically, so as to lay the lingering debate to rest. Let the chips fall where they may.

To this end, I was recently asked by a journalist whether ICE is up to the job. My answer was, and remains, "yes".

The work requires a rigid methodology, but isn't, as they say, rocket science or quantum physics. A substantial portion of the upfront work will consist of electronic data matching: running voter rolls against DHS databases of aliens, both legal and illegal, primarily to eliminate the vast majority of registered voters where there is no possible match. Having reduced the pool, further examinations can be made by carefully looking at the exact biographic information contained in ancillary information (for instance alien "A-files" on one hand, and motor-voter registration data on the other). This will further eliminate some superficial matches (for example, persons with common names and similar dates of birth). It is only then that actual investigative fieldwork will begin to either confirm or eliminate the remainder of the pool of potential matches and, when aliens are determined to have voted illegally, to take appropriate enforcement action.

There are two caveats I have to add, though, to ICE's performance of this exercise. First, if what the agency is asked to work with consists of the partial set of voter rolls submitted by only a few states, then as an exercise in getting to the truth of the frequency of voter fraud by aliens, it is doomed to be of limited utility, particularly since several of the states most resistant will also likely be states such as New York or Virginia with huge voter rolls and, not coincidentally, a high percentage of aliens, both legal and illegal, among their populations. Also not coincidentally, they are either outright sanctuary states or hew closely to policies and practices of extreme noncooperation with DHS and ICE over virtually every aspect of immigration enforcement.

This leads us to the second point, and that is whether the Trump administration will exert its lawful authority, as exercised by the Department of Justice (DOJ), to both support and intervene in the DHS/ICE exercise when states become recalcitrant. One can't imagine DOJ not supporting the FBI in some massive investigative effort; the same must be true for ICE during this exercise.

Translated into practicality, this means that the attorney general must be prepared to use his lawful authority to demand the turnover of state electoral lists and, if resisted, to go to court to enforce the demand. Make no doubt that he has this authority. The federal law that governs state maintenance of electoral rolls, the National Voter Registration Act (NVRA) gives the attorney general plenary authority over the states to ensure that they neither disenfranchise lawful voters on one hand, nor permit those legally prohibited from voting to destroy the integrity of the rolls on the other.

One last point: If, as progressives constantly assert, it is a myth that aliens vote unlawfully, then why do both the Senate (S. 1615) and House (H.R. 3440) versions the DREAM Act of 2017 now pending before Congress contain provisions forgiving illegal aliens seeking amnesty if they have voted illegally?

The forgiveness waiver for illegal alien voters is in exactly the same place in both bills: Look at Section 3(b)(2). See where it says "With respect to any benefit under this Act, the Secretary may waive the grounds of inadmissibility under paragraph (2), (6)(E), (6)(G), or (10)(D) of section 212(a) of the Immigration and Nationality Act ["INA"] (8 U.S.C. 1182(a)) for humanitarian purposes or family unity or if the waiver is otherwise in the public interest"? The paragraph I've used bold typeface on is the provision that renders an alien removable for voting illegally.

Of course, our legislators have conveniently masked this exercise in forgiveness largesse by simply referring to the paragraph and not describing what it is. They know that most people have neither the time nor the expertise to actually look at the INA and see what it is that Congress is proposing to forgive for illegal alien Dreamers.

So again I ask, as I have before: 1) If it's a myth that aliens vote illegally, then why is there a need to insert such a forgiveness provision in an amnesty bill? And 2) Are aliens who commit voter fraud really the type of individuals we should consider granting amnesty to? I don't think so.

Topics: Voter Fraud