It's Already a Crime for Noncitizens to Vote in Federal Elections

Why Are Conservatives Obsessed With This?

Let’s start up front. Federal law makes it a crime for any alien—whether they’re legal permanent residents, under some form of protected status, or undocumented—to vote in a federal election. This statute—18 U.S.C. §611—has existed since September 1996. Violations of the law carry are subject to a fine and up to one year in prison.

The Heritage Foundation has documented 350 instances of ineligible voting since 2000. Only 24 of these instances involved noncitizens. The Brennan Center discovered 30 instances of noncitizens voting in 42 jurisdictions during the 2016 presidential election. According to Ballotpedia, 16 jurisdictions in three states and the District of Columbia allow noncitizens to vote in local elections. Some may complain about this, but at the local level, noncitizens pay local sales and property taxes. There’s an argument to be made for suffrage in only local elections.

Considering that immigration and border security have become hot-button issues, unproven allegations of widespread voter fraud and conspiracy theories that the Biden administration is allowing migrants to come to the United States and registering them to vote have led to legislation that would require proof of citizenship to participate in our democracy. That legislation has become a rally point for conservatives for any deal struck to fund the federal government ahead of the end of FY 2024 on September 30.

The legislation is the Safeguard American Voter Eligibility (SAVE) Act, H.R. 8281. It passed the House in July by a vote of 221 to 198. Five Democrats—each of whom represent competitive House districts—crossed the aisle to vote for the bill. No one expects the Senate to consider the legislation.

Although it’s already a crime for a noncitizen to vote, punishable by a fine and up to a year in prison, the SAVE Act would require proof of citizenship when an individual registers to vote. This would include a REAL ID-compliant driver’s license and a passport. This includes mail-in voter registration. It also includes criminal penalties for on federal employees who provide material assistance in helping a noncitizen to register to vote or individuals who register noncitizens to vote. The existing statute amended by the SAVE Act—52 U.S.C. §20511—does have a mens rea of “knowingly and willfully.” There’s also a private right of action—essentially, the ability to sue—against election officials who register noncitizens to vote.

Right now, this is a nonissue. Legislation like the SAVE Act is what happens when grifters feed the Republican Party’s conservative base a steady diet of conspiracy theories about elections. There are also better ways to do something like this that don’t put a burden on people who are trying to register to vote.