Editor's note: After this article's publication, the authors learned that on September 10, 2013, North Carolina became the latest state to sign an agreement with the Department of Homeland Security to use SAVE for voter verification.
After a year of negotiations with the Department of Homeland Security (DHS), Iowa last month became the third state to obtain access to the federal Systematic Alien Verification for Entitlements (SAVE) immigration data system, for the purpose of removing noncitizens from its electoral rolls. This action is the latest in a series of state-led efforts to respond to concerns about voter fraud and to tighten laws on voting, following a pair of Supreme Court rulings in June that increased states' leeway in regulating voter requirements.
Use of SAVE for voter verification purposes signifies a major departure from its intended use. SAVE is an electronic, fee-based program managed by U.S. Citizenship and Immigration Services (USCIS) and designed to enable federal, state, tribal, and local government agencies to check immigration status to determine eligibility for various public benefits, licenses, and credentials, and to conduct background investigations (see text box).
Even as officials in a number of states are using a variety of means to ensure election integrity and identify what they contend is significant voter fraud, various civil- and voting-rights groups argue that voter fraud is extremely rare, and if anything, such campaigns are designed to suppress voting by ethnic minorities. Some also contend that SAVE data are unreliable for voter verification because they constitute neither an exhaustive nor accurate list of U.S. citizens.
With more than a dozen states—including some important electoral battlegrounds such as Ohio—seeking access to SAVE data for voter purge efforts, the debate over voter verification undoubtedly will intensify as the 2014 and 2016 mid-term and presidential election cycles approach.
Voter Fraud and Voter Verification
The fact that registering to vote is rather effortless—a result of the 1993 National Voter Registration Act permitting qualified applicants to register to vote when applying for or renewing a driver's license—has partially driven concerns that noncitizens routinely register and cast ballots in elections. To register to vote in federal elections, an individual must fill out a federal form and attest under penalty of perjury that he or she is a U.S. citizen.
In response to these concerns, states may compare their voter lists with other state databases—like those of the Departments of Motor Vehicle (DMV)—that contain information on state residents' immigration status. When a registered voter appears to be a noncitizen in such a database, the person is flagged. States that have gained access to the SAVE system may then verify the citizenship status of flagged voters, using the system to determine whether they are indeed noncitizens and should be removed from the voter registry or whether they have naturalized and are eligible to vote.
The Debate Heats Up
In defense of his office's intent to use SAVE for voter verification purposes, Iowa State Secretary Matt Schulz pledged last month that the system would ensure the integrity of elections without voter suppression. The American Civil Liberties Union (ACLU) of Iowa brought a lawsuit to challenge the state's legal authority to use SAVE in its voter verification and purging efforts, and cited concerns that use of the system would lead to qualified citizens being wrongly challenged and deprived of their right to vote. The lawsuit especially noted that voters may show up at the polls to cast ballots without knowing their names have been purged.
Some, however, argue that an agreement with DHS to use SAVE is better than leaving states to their own devices. First, SAVE is less likely to have outdated information than the alternative state-managed databases, which only capture information when individuals apply for a state benefit. And while state laws on noncitizen voting list purge procedures vary, access to SAVE requires a memorandum of understanding (MOU) that governs how the data are used. In DHS' MOU with Iowa, for example, there are specific binding requirements that Iowa must contact individuals prior to a SAVE check, notify voters who are not verified as citizens, and administer an appeals process.
This debate is not new; for several years, a handful of counties in Arizona have been permitted to use SAVE. In 2012—just months before the presidential election—Florida and Colorado became the first two states to gain access to SAVE data after lobbying DHS aggressively for the right to do so. Florida Republican Senator Marco Rubio defended his state's efforts last year, asking: “How could anyone argue against a state identifying people who are not rightfully on the voter rolls and removing them from the voter rolls?”
The SAVE Program: An Explainer
Using SAVE for Voter Verification
In order to access the SAVE system, a government agency must apply to USCIS and establish its legal authority to issue benefits or licenses, and its authority to verify immigration status before granting such benefits. After the application is reviewed, USCIS and the agency sign an MOU that outlines terms and conditions for the use of SAVE data.
Though the MOUs provide some protections, using SAVE to screen registered voters still leaves some unresolved issues regarding its reliability and efficacy.
First, SAVE is a system driven by specific identifying numbers. It can only establish a person's immigration or citizenship status by using an Alien Registration Number, also known as an A Number (a number assigned to a noncitizen when applying for various immigration benefits), or a naturalization or citizenship certificate number. This means that a state can use SAVE data only to verify the citizenship status of persons for whom it has one of these identifying numbers. When the state does not have these numbers, it can only obtain them by contacting individuals—a highly labor-intensive task.
More importantly, SAVE is not designed to verify the citizenship status of the entire population of eligible voters. While it can verify naturalized citizens, U.S.-born citizens do not appear in immigration databases at all. It also does not include those who may be born abroad but are considered U.S. citizens at birth (see text box).
In addition, congressional investigators and others have expressed misgivings about the integrity of SAVE data. A 2012 Government Accountability Office (GAO) report found that data-entry errors and outdated information made the verification process unreliable. For instance, a person's recent naturalization may not be immediately updated in all DHS databases.
Frequency of Noncitizen Voting
The experiences of Florida and Colorado have shown that noncitizen voting is rare. In Florida's 2012 voting list purge, though Florida authorities initially reported approximately 182,000 potential noncitizen voters, only 207 registered voters were found to be noncitizens after they were screened using the SAVE system (out of an electorate of 11.5 million), according to media reports citing Florida officials. Using SAVE, Colorado confirmed 141 noncitizens registered to vote from a pool of 3,903 initially flagged out of an electorate of 3.5 million. In both cases, the vast majority of initially flagged voters proved to be U.S. citizens.
Some elections officials in both states said they believe that the voter fraud review exercises were worth it, but others questioned whether this was a smart use of time and resources given the small incidence of noncitizen voting.
Recent Supreme Court Decisions
Two Supreme Court decisions handed down in June 2013—in Shelby County v. Holder and Arizona v. Inter Tribal Council of Arizona—are likely to increase state interest in verification of voters' citizenship status.
In Shelby County, by striking down Section 4 of the 1965 Voting Rights Act (VRA), the Supreme Court lifted the requirement that certain states pre-clear changes to their voting laws with the federal government or a federal court. At least five states have passed restrictive new voting laws since the Supreme Court ruling.
In Arizona v. Inter Tribal Council, the high court ruled that an Arizona law requiring proof of citizenship upon registering to vote was preempted by the 1993 National Voter Registration Act. The ruling affected several other states with similar laws and signaled that they should not add proof of citizenship to the voter registration process. However, it also indicated that states can request that the federal Elections Assistance Commission (EAC) include a state-specific requirement (like proof of citizenship on their state forms).
The impact of this ruling is already playing out. On August 21, Arizona and Kansas filed a joint lawsuit demanding that EAC change both states' registration forms to include a proof of citizenship requirement, after their initial request to do so was rejected.
A New Trend?
The recent trend in state activism to tighten voter registration and crack down on voter fraud will likely continue, especially considering states' newfound leeway to regulate voting rules. Currently, more than a dozen other states are seeking access to SAVE, including: Alaska, Arizona, Arkansas, Georgia, Kansas, Michigan, Nevada, New Mexico, North Carolina, Ohio, Texas, Utah, and Washington.
Policy Beat in Brief
Homeland Security Secretary Napolitano Departs DHS; Leadership Shuffles but Vacancies Remain. September 6 marked Secretary Janet Napolitano's last day at DHS after serving as the agency's head for almost five years. Napolitano, who announced her resignation on July 12, will take over as president of the University of California. President Obama has not yet nominated a replacement. Rand Beers, formerly Acting Deputy Secretary, will serve as Acting Secretary until a replacement takes the helm. Counting Napolitano's departure, at least 15 high-level leadership positions at DHS are vacant, including Deputy Secretary, General Counsel, Commissioner for Customs and Border Protection (CBP), Director of Immigration and Customs Enforcement (ICE), and Inspector General. Current USCIS Director Alejandro Mayorkas has been nominated to become Deputy Secretary but his confirmation in the Senate is uncertain. On August 1, President Obama nominated candidates for several top DHS slots (see the list of presidential nominees sent to the Senate. Earlier this month, former Acting General Counsel John Sandweg was appointed Acting Director of ICE, but a permanent replacement has not been named.
ICE Issues Parental Interests Directive. On August 23, ICE issued a policy directive called the “Parental Interests Directive” to reduce the impact of family separation and ensure that immigration enforcement activities do not unnecessarily disrupt the parental rights of noncitizen parents and legal guardians of minor children. The directive in many ways is a consolidation and restatement of processes and guidelines already in use by ICE for the identification, placement, monitoring, accommodation, and deportation of parents in removal proceedings. It states that ICE field office personnel should continue to consider whether a noncitizen is a parent or legal guardian of young children in their decision to exercise prosecutorial discretion. Among the notable new policies and procedures introduced: it requires each ICE field office to appoint a parental rights coordinator to be the point of contact for parental rights issues; to ensure compliance with the directive; to manage data collection; to train ICE officers and personnel; and to conduct outreach.
Detainees in Los Angeles Entitled to Automatic Bond Hearings. On August 6, the U.S. District Court for the Central District of California Western Division ruled in the class-action lawsuit Rodriguez v. Robbins that the government must provide automatic bond hearings to immigrants who are in removal proceedings in the Los Angeles area and are detained longer than six months. The ruling makes permanent a previous preliminary injunction granting bond hearings, and follows a similar decision in April 2013, in which the U.S. Court of Appeals for the Ninth Circuit ruled that immigrants who have experienced prolonged detention have a right to a bond hearing to determine whether they should continue to be detained. A bond hearing occurs before an immigration judge to determine whether an individual detained and in removal proceedings should be released on bond until his or her next immigration hearing.
DHS, DOS Issue Guidance on Same-Sex Marriages, DHS Begins Case Review. Acting after the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA) on June 26, DHS has updated its guidelines to ensure that legally married same-sex couples are treated the same as opposite-sex couples for all immigrant visa and fiancée petitions. The guidelines also clarify that same-sex couples who were married in a state that recognizes same-sex marriage but who live in a state that does not are still eligible for immigration benefits. Same-sex and opposite-sex couples will be treated equally for all other immigration benefits and purposes, including refugee status and asylum. The Department of State (DOS) Bureau of Consular Affairs has issued parallel guidance clarifying that the same-sex spouse of a visa applicant coming to the United States for any purpose, including work, study, international exchange, or as a legal immigrant, will be eligible for a derivative visa. Likewise, stepchildren acquired through same-sex marriages can also qualify as beneficiaries or for derivative status.
DHS' guidance also states that USCIS will reopen petitions and applications that were denied because of DOMA, and will begin a review to identify such cases denied after February 23, 2011. For cases denied before then, individuals must notify USCIS by March 31, 2014.
Mexican Border Asylum Claims Ignite Controversy. Asylum claims made at ports of entry along the U.S.-Mexico border have more than doubled over the past three years, from 6,824 in fiscal year (FY) 2011 to 14,610 during the first three quarters of FY 2013. To request asylum at a port of entry, an arriving noncitizen must establish “credible fear” to an inspections officer by demonstrating he or she has a “significant possibility” of establishing before an immigration judge past persecution or a well-founded fear of persecution in his or her home country on account of race, religion, nationality, membership in a particular social group, or political opinion. Upon grant of credible fear determination, the noncitizen is admitted to the United States to go through the formal process of requesting asylum in immigration court, after which he or she can either be detained or released.
This policy drew heightened attention in August after a group of immigrant-rights activists known as the “Dream 9,” all unauthorized immigrants from Mexico, voluntarily left the United States in protest of the Obama administration's deportation policies, and sought to re-enter at the Nogales, Arizona port of entry by requesting asylum on the basis of fear of persecution in Mexico. The activists were initially detained but released several weeks later, and must appear before an immigration judge to present their asylum claims. Debate surrounding the Dream 9 prompted DHS to release statistics on credible fear and has ignited controversy. House Judiciary Committee Chairman Robert Goodlatte (R-VA) suggested that noncitizens are making false claims for asylum in order to enter and remain in the United States and has called for an investigation. Immigrant groups, on the other hand, claim that the fears are overblown, noting that only 9 percent of Mexican asylum claims are ultimately granted. While DHS has called the increase in credible fear claims at the southern border “modest,” it has also stated that the number of Mexican asylum requests has not shown a marked increase, raising some speculation that noncitizens from countries other than Mexico could be driving the uptick.
Federal Judge Dismisses Lawsuit against DHS over DACA Program. On July 31, federal Judge Reed O'Connor of the U.S. District Court in Dallas, Texas dismissed the lawsuit Crane V. Napolitano brought against former Homeland Security Secretary Napolitano by a group of ICE officers seeking to block the Obama administration's Deferred Action for Childhood Arrivals (DACA) directive. The officers, represented by Kansas Secretary of State Kris Kobach, argued that the DACA policy violates federal law and forces ICE employees to break the law by not arresting certain unauthorized immigrants. The case was dismissed on procedural grounds—that it was not within the court's jurisdiction to rule on an inter-agency dispute at DHS. However, in a nod to the ICE officers, Judge O'Connor stated that plaintiffs were “likely to succeed on the merits of their claim that […] DHS has implemented a program contrary to congressional mandate.” The DACA program allows certain unauthorized immigrant youth who arrived in the United States as children to apply for work permits and temporary protection against deportation. As of July 31, USCIS has received 573,404 applications of which 430,236 have been approved and 7,450 denied.
Three Federal Appeals Courts' Decisions Thwart State and Local Immigration Laws. Three federal appellate court decisions issued in July and August have limited the power of local law enforcement agencies to enforce immigration laws. The first ruling, issued by the U.S. Court of Appeals for the Fourth Circuit on July 23, found that several South Carolina measures enacted in 2011 were preempted by federal law. These included provisions that made it a crime for unauthorized immigrants to “allow themselves” to be transported within the state or harbored or sheltered to avoid detection; transport or help an unauthorized immigrant avoid detection; fail to carry immigration documents; or carry fraudulent immigration documents. In the second ruling, the U.S. Court of Appeals for the Third Circuit ruled on July 26 that a series of ordinances in Hazleton, Pennsylvania dating back to 2006—that would have criminalized a range of employment interactions by or with individuals who could not prove work authorization and that sought to bar the unauthorized from housing rentals—are also preempted by federal law. Both rulings follow the June 2012 U.S. Supreme Court landmark decision in Arizona v. United States that upheld federal primacy in immigration law enforcement.
The third ruling, issued by the U.S. Circuit Court of Appeals for the Fourth Circuit on August 7, clarified parts of the Arizona ruling that left intact state and local law enforcement's authority to demand immigration documents from anyone stopped, detained, or arrested, and for whom officers have reasonable suspicion of being unauthorized. It found that the Fredrick County Sheriff's Office in Maryland does not have the authority to arrest and detain an individual solely based on known or suspected civil immigration violations. The plaintiff in the case, Roxana Santos, is a Salvadoran national who was arrested on suspicion of being unauthorized and was detained for 45 days in 2008.
Farmers Branch Housing Ordinance Struck Down Again, Plaintiffs Eye Supreme Court. On July 29, the Court of Appeals for the Fifth Circuit in New Orleans, by a 9-5 vote, struck down a Farmers Branch, Texas ordinance requiring a potential tenant to prove his or her legal status to obtain a rental license from the city's building inspector. It also would have prohibited landlords from renting to unauthorized immigrants and provided for the arrest and prosecution of landlords and tenants who violated the law. In its recent ruling, the Fifth Circuit found that the ordinance's “sole purpose is not to regulate housing but to exclude undocumented [immigrants], specifically Latinos,” and that it is unconstitutional because it “constitutes an obstacle to federal authority over immigration.” On August 21, members of the Farmers Branch City Council voted 3-2 to appeal the decision to the U.S. Supreme Court. The City of Farmers Branch has painstaking defended the ordinance in court since 2008 when it was adopted.
State and Local Policy Beat in Brief
Newark, New Orleans Limit Secure Communities Cooperation. Last month, two new jurisdictions announced that they will not comply with some ICE requests, made through the Secure Communities program, to hold inmates identified as unauthorized immigrants. Under a new directive issued by the Newark Police Department on July 24, law enforcement officials will not honor immigration holds placed on individuals arrested for low-level offenses, such as shoplifting or disorderly conduct. The new directive also has the support of Newark's mayor, Cory Booker, who is predicted to win New Jersey's vacant Senate seat on October 16. Separately, on August 13, the Orleans Parish Sheriff's Office (OPSO) in New Orleans announced it will not honor ICE detainers unless the individual is charged with one or more serious offenses, such as first or second degree murder, aggravated rape or kidnapping, and armed robbery with a firearm. A number of states, cities and counties have policies that limit to various degrees cooperation with ICE requests through the Secure Communities program, but New Orleans is the first jurisdiction in the Deep South to adopt one—and in many ways, its goes the furthest. For example, it prevents OPSO from initiating any investigation into a detainee's immigration status, and bars ICE agents from entering parts of the jail without a criminal warrant or court order. On September 10, the California state legislature approved and sent to the governor’s desk a related measure, called the Trust Act, which would allow law enforcement officers to comply with a detainer only if the individual has been convicted of a range of certain serious offenses.
Secure Communities, which is activated in 100 percent of the country's 3,181 jurisdictions, checks the immigration status of individuals arrested in state and local jails by automatically screening their fingerprints against DHS immigration databases.
In California, Noncitizens to Work Polls, LPRs Could Serve on Juries. In August, California Gov. Jerry Brown signed into law AB 817, which will allow noncitizens to work at the polls in California elections. He is expected to sign a second bill, AB 1401, which would enable lawful permanent residents (LPRs) to serve on juries. Both arenas are typically reserved exclusively for U.S. citizens. Under AB 817, election officials may appoint as many as five noncitizens to work at each voting precinct. The measure represents an effort to recruit multi-lingual poll workers to assist eligible voters who might not be English proficient (according to the bill's sponsor, 3 million such voters exist in California). The sponsor of AB 1401 has stated that including green card holders on juries is fair because the jury system is based on the idea of judgment by a group of peers, and green card holders in California constitute a sizeable share of the state's population. Critics of the measures, however, argue that they de-value U.S. citizenship and threaten the integrity of the election process and the judicial system.
North Carolina State Congress Overturns Governor's Veto of Immigration Bill. In early September, both chambers of the North Carolina state legislature voted to override Gov. Pat McCrory's veto of a bill that will allow agricultural employers a window of nine months instead of the current 90 days to verify—using the federal government's E-Verify program—the immigration status of their workers. Both the governorship and House and Senate majorities are held by Republicans; thus the veto and the override have underscored a major division among the state's Republican Party. Gov. McCrory and other opponents of the bill declared it a measure that would give employers and unauthorized immigrants a free pass to break the law. Its supporters, on the other hand, say it will free agricultural employers of bureaucratic red tape and give them easier access to the workers they need. North Carolina's E-Verify laws were one component of an omnibus immigration bill passed in 2011.