Donald Trump and Mike Johnson are pushing for federal legislation to ban non-citizen voting, which could end up disenfranchising eligible citizens. The effort also underscores how Trump and allies are already seeding doubts about this fall’s election.
It is already illegal for non-citizens to vote in federal elections. But new legislation backed by Johnson would amend federal law to require all voters to show documentary proof of citizenship when registering to vote. Currently, Americans who register to vote with a federal voter registration form are required to affirm they are a citizen and risk prosecution if they lie.
“We all know – intuitively – that a lot of illegals are voting in federal elections. But it’s not been something that is easily provable,” Johnson said on the steps of the US capitol on 8 May. He was joined by Cleta Mitchell, an ally of Trump who sought to overturn the 2020 election, and Stephen Miller, a top Trump adviser who has been behind some of Trump’s most anti-immigrant policies.
The idea that non-citizens are voting in US elections in large numbers is a lie. Several studies have shown that the number of non-citizens who successfully vote is extremely small. For example, a 2017 analysis by the Brennan Center for Justice of 42 jurisdictions in the US found that non-citizens were 0.0001% of the votes cast.
As of March 2024, 11 states were also considering legislation that would impose a proof of citizenship requirement, according to an analysis from the Voting Rights Lab, a non-profit that tracks voting bills. Nine states have also enacted legislation aiming to remove non-citizens from the voting rolls.
“It’s pure politics,” said Jonathan Diaz, a voting rights lawyer at Campaign Legal Center. “There’s no actual substance to it.”
The focus on non-citizen voting is not a new one for Republicans or Trump, who have sought for more than a decade to require proof of citizenship – and have suffered several setbacks at the supreme court. After losing the popular vote in 2016, Trump falsely claimed that non-citizen voting was in part to blame.
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Two states, Kansas and Arizona, offer a warning of what happens when officials require voters to prove their citizenship when they register to vote. In both cases, the laws appear to have made it harder for eligible citizens to register to vote. A federal bill could have the same effect.
In 2011, Kansas lawmakers approved the Secure and Fair Elections (Safe) Act, which required all new voters to provide proof of citizenship, like a passport or birth certificate, when they register to vote. If they didn’t provide adequate proof, their registration was held in suspense until they did and rejected if they didn’t within 90 days.
The law went into effect on 1 January 2013. By March 2016, more than 30,000 people, more than 12% of new voters, had their voter registration either held in suspense or cancelled. Younger voters, aged 18-29, and unaffiliated voters were also more likely to be affected.
Kris Kobach, a close ally of Trump who was then Kansas’s top election official, was a staunch defender of the law and personally defended it in court. The measure was justified, he said, because Kansas needed to prevent voter fraud.
But when a federal judge reviewed the evidence of fraud Kobach relied on, she didn’t find much. Only 39 non-citizens successfully registered to vote in the state between 1999 and 2013, when the law went into effect. “The Court is unable to find empirical evidence that a substantial number of noncitizens successfully registered to vote under the attestation regime,” US District Judge Julie Robinson, a George W Bush appointee, wrote in a 2018 ruling striking down the law. “While there is evidence of a small number of noncitizen registrations in Kansas, it is largely explained by administrative error, confusion, or mistake.”
She also rejected an argument from Kobach that the limited numbers were just the tip of the iceberg. “There is no iceberg; only an icicle, largely created by confusion and administrative error,” she wrote in the ruling.
Years before Kansas enacted its proof of citizenship law, Arizona voters approved a constitutional amendment to require proof of citizenship in elections, which has led to ongoing court battles for two decades.
Arizona voters approved a law in 2004 to require people to provide proof of citizenship in order to vote in the south-western state. But the US supreme court ruled in 2013 that the state couldn’t require such proof for federal elections, only for state or local elections.
This led to a bifurcated system with a group of “federal-only” voters who have not provided the state with citizenship proof, though still attest that they are eligible to vote by checking a box on the registration form. The federal-only list grew significantly after a 2018 lawsuit settlement that required the state to put people on the federal-only list even if they used a state form instead of the federal form. Currently, there are about 30,000 federal-only voters in Arizona (more than 4 million people are registered to vote in the state).
The system has been the subject of viral misinformation this year, with Elon Musk erroneously tweeting about how the state doesn’t require proof of citizenship to vote.
An analysis from Votebeat in 2023 found that these federal-only voters were concentrated on or near college campuses, meaning the rules could be disenfranchising legal voters. Proof of citizenship requirements have also negatively impacted tribal voters, who are more likely to not have the required documents.
Facing a challenge from the US justice department, a federal judge earlier this year struck down part of a new state law that would have required voters to list their birthplace when registering, but decided that additional restrictions for the federal-only list could go into effect. Elections officials will now have to verify the status of these voters and use other government databases as references.
“The court finds that though it may occur, non-citizens voting in Arizona is quite rare, and non-citizen voter fraud in Arizona is rarer still,” the ruling from US District Judge Susan Bolton said. “But while the voting laws are not likely to meaningfully reduce possible non-citizen voting in Arizona, they could help to prevent non-citizens from registering or voting.”
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The new legislation Republicans are backing would require anyone who registers to vote to show proof of citizenship in order to cast a ballot in federal elections. That would mean a document like a passport, birth certificate, naturalization certificate or other form of identification that confirms their citizenship. An estimated 7% of US citizens don’t have easy access to proof of citizenship. A 2006 study by the Center on Budget and Policy Priorities found that low-income Americans, African Americans, elderly people and rural voters were more likely not to have the required documents.
Republicans for years have ignored evidence there isn’t widespread non-citizen voting and tried to implement proof of citizenship registration requirements.
The renewed focus this year seizes on two potent concerns among the right – undocumented immigration and voter fraud – to make it harder to vote.
“Immigration is a divisive issue,” Diaz said. “The former president and many of his allies have made campaigning on elections and on their false claims of problems with our elections a centerpiece of his re-election campaign. I think that they’re just trying to demonize a group of people that they view as easy targets.”
A key part of the argument for more-stringent requirements seems to be that requiring people to swear they are citizens under penalty of perjury is not sufficient to prevent them from voting. But Sean Morales-Doyle, who leads the voting rights program at the Brennan Center, said that suggestion was ridiculous.
“If people really are confronted with the real hypothetical, what this really looks like, it becomes pretty clear pretty quickly that it makes no sense for someone to commit this crime knowingly,” Morales-Doyle said. “You’re going to get caught. There isn’t this good chance that you’re going to get away with it because the crime actually involves the creation of a government record that is evidence of your crime.”
There was also the risk of deportation if a non-citizen is caught illegally voting, he said.
“To commit this crime, you are putting your individual freedom and your ability to remain in the country at risk for the ability to cast one ballot in one election,” he added.
