GOP centers election concerns on noncitizen voting, but it's rare

WASHINGTON — Donald Trump and his Republican allies have raised alarm that noncitizens who vote could unlawfully tilt the 2024 presidential election, but lawsuits over state voter registrations have shown the potential effect on the top of the ticket appears comparatively small.

Lawsuits from Republican groups in two swing states where a margin of victory could be close, Nevada and Arizona, allege thousands of names on voter rolls are either noncitizens or have not been properly vetted.

There are signs that the lawsuits, filed in Nevada by the Republican National Committee and in Arizona by a legal group led by former Trump adviser Stephen Miller, could be used as fodder to question the results in those states and challenge the outcome of the election.

Members of Congress have raised the issue, and election officials in some states have sought to take noncitizens off the voter rolls. Karoline Leavitt, national press secretary for the Trump campaign, said the Biden administration’s policies have allowed more illegal immigration, and “Democrats are pushing for non-citizens to vote and influence the future of our country.”

But studies from right-leaning think tanks are among reviews that have cast doubt on how often those registrations turn into actual votes, since a federal law bars noncitizens from casting ballots in federal elections.

The Cato Institute says the percentage of noncitizens voting is closer to zero than 1%. A database maintained by the conservative Heritage Foundation indicates that only 85 cases exist involving allegations of noncitizens voting from 2002 to 2023.

Carah Ong Whaley, vice president of election protection for Washington-based political reform group Issue One, said that based on numerous studies “it is very unlikely” noncitizen voting could happen at a rate that would influence the election outcome.

With criminal penalties in place for noncitizens who go through with casting a ballot, Whaley said the issue “is being exaggerated” and the true nature is to “set up as a claim in the election cycle to … try to undermine confidence and to sow doubt.”

“Should we tighten up the systems and make sure that only eligible voters are casting a ballot? Sure, right?” Whaley said. “But the penalties are so high that it’s just not happening at a rate that would influence any outcome of the election, and certainly not in the states.”

That hasn’t stopped Congress and state officials from acting to remove noncitizens from the voter rolls ahead of the election, which is part of regular maintenance of lists of those who are qualified to cast ballots.

Speaker Mike Johnson, R-La., and Sen. Mike Lee, R-Utah, unsuccessfully led an effort to make the so-called SAVE Act, which in part would require states to remove noncitizens from their official lists of eligible voters, part of spending legislation to avoid a government shutdown.

In the highest profile of the court clashes on the issue, the Justice Department filed lawsuits in Virginia and Alabama to enforce a federal law that prevents election officials from removing names from voting lists too close to the election, in part because of the chance a legitimate voter’s name is removed.

But even there, the numbers appear to fall short of those that might make a difference in the presidential race. The Supreme Court on Wednesday allowed Virginia Gov. Glenn Youngkin to keep off the voter rolls 1,600 people removed because of a state initiative announced in September. Four years ago, President Joe Biden got approximately 450,000 more votes than Trump in the commonwealth.

And in Alabama, officials identified 3,251 people on the rolls who are noncitizens, although that number is contested. In 2020, Trump got approximately 500,000 more votes than Biden in that state.

Other states are finding significantly fewer noncitizens on the voting rolls. Georgia announced it had conducted a review of its voting rolls and found just 20 noncitizens on the lists.

An Oct. 12 letter from the Republican National Committee to the Maine secretary of state is based on findings that 18 individuals who were noncitizens accepted MaineCare services against the rules. When those names were cross-tabulated, six were registered to vote, including five who had voted in elections since 2016, and all were registered Democrats, according to an October report in Maine Wire. The RNC says the number is based on a small sampling, but further review “may have produced even more samples of non-citizens registered and voting.”

In Nevada, the RNC is counting more than 6,300 noncitizens registered to vote, 3,987 of whom had cast a ballot in a previous election. The numbers are based on a December 2020 Department of Motor Vehicles file of individuals who presented an immigration document while obtaining a drivers’ license or identification card during the previous five years, which was then compared to the statewide registration list.

A separate estimate in the RNC lawsuit based on extrapolation of survey data estimates as many as 11,220 noncitizens were registered to vote in 2022.

Whaley questioned the way certain tabulations have estimated the noncitizens on the voting rolls in certain states, saying they’re “pretty vague” and may just be a case of citizen eligibility that hasn’t yet been confirmed.

“It is not always the case that those numbers that we’re seeing are … a full accounting of noncitizens on the roll,” Whaley said. “And then when we look deeper, so for example, in the case of Virginia, we don’t know how many of those people that they identified potentially even actually voted. That has not been clear.”

America First Legal, a legal firm operated by Miller, filed a lawsuit in August against 15 counties in Arizona, including the largest county of Maricopa, based on alleged noncitizens on the voting rolls registered to vote. The lawsuit estimates 35,273 registered voters in Arizona had failed to provide proof of citizenship in accordance with Arizona state law.

Whaley, however, pointed out Arizona has a bifurcated process in which residents can register to vote either through a state form, which requires proof of citizenship, or the registration form prepared by the U.S. Election Assistance Commission. The U.S Supreme Court ruled in 2013 that Arizona couldn’t impose a proof-of-citizenship requirement on voters who register with the federal form, but that makes them only eligible to vote in federal races.

“I see that the America First complaint cites numerous surveys about concerns, and the growth of federal-only voters, but I don’t see direct evidence in the complaint of noncitizen voting,” Whaley said.

A subsequent Arizona law enacted in 2022, however, requires Arizona to adjudicate whether these federal-only voters are citizens after they have registered, which forms the basis of the America First Legal complaint.

Despite the penalties, there are documented cases of noncitizens seeking to cast ballots in the election. On Wednesday, Michigan state officials revealed a 19-year-student in Ann Arbor, Mich., who’s not a U.S. citizen voted over the weekend and is now being charged with two crimes.

The vote from the student, who’s a Chinese national, will still count in the election even though it was illegally cast because election officials have no way to retrieve it now that it’s been put through a tabulator, The Detroit News reported.

Although the margins in presidential elections are wide enough that numbers cited in these findings are exceedingly unlikely to have an effect, other races may be another story. Senate races may be comparable in the presidential contests because they’re based on statewide outcomes.

But congressional races may be different. The breakdown of the electorate for these contests is much smaller, which could mean a concentrated number of votes may have an effect.

Nathan Gonzales, editor and publisher of Inside Elections, said any sort of addition on the voter rolls could have an effect on congressional races where the margin of victory may be exceedingly narrow, such as the contests in Virginia’s 2nd and 7th districts.

“In close races, everything can matter,” said Gonzales, who is also an elections analyst for CQ Roll Call. “It’s tough to isolate individual factors … but again, when we’re talking about close races, everything tends to … anything and everything can make the difference.”

Gonzales said “people who aren’t citizens shouldn’t be voting in federal elections anyway.”

“Put me in the skeptical branch that there are a large or significant number of people who are in the country illegally that are looking to commit felonies,” he said.

Gonzales predicted the presence of lawsuits contesting the presence of noncitizens on the voting rolls has the potential to be used as a pretext to question the 2024 election results without merit.

“Some Republicans are using lawsuits and the potential for fraud as a way to sow distrust in the electoral system … and to challenge … the results and justify actions to change the results,” Gonzales said.