The 2020 presidential election is already dominating news headlines. Since mid-January, politicians and public figures have been announcing their candidacy in rapid succession. Such political fervor is arguably good for the democratic process, as it brings important issues to the forefront. It also prompts campaign organizers to align supporters and so focuses attention on the voter registration process.

Automatic Voter Registration (AVR) is a policy intended to streamline the way Americans register to vote. AVR uses an electronic “opt-out” registration system, whereby an individual is automatically placed on the state’s voter roll during a transaction with a participating government agency – most commonly the Department of Motor Vehicles (DMV). To avoid automatic registration, the individual must “opt-out,” or affirmatively decline to be registered. How to “opt-out” depends on the state.  Some must do so at the time of the transaction, while others must respond to a notice mailed at a later date.

Historically, and in states where AVR has not yet been authorized, voters must instead “opt-in” to register. This means that an individual chooses to fill out a voter registration application, the application is transferred to the state’s election officials for review and processing, and once approved the individual’s name is added to the state’s voter roll.

As of December 2018, 16 states and the District of Columbia have authorized AVR. While AVR is not a completely novel concept (rather, an updated version of the National Voter Registration Act of 1993), the “opt-out” provision is a differentiating factor.

AVR seems efficient, but to a non-citizen this new format can potentially have severe consequences. U.S. citizens are not the only individuals who interact with the participating government agencies, especially the DMV. In fact, many non-citizens are permitted to lawfully obtain state identification cards and driver’s licenses pursuant to their immigration status. Some examples of these non-citizens include legal permanent residents, individuals with a valid Employment Authorization Document (EAD), and certain non-immigrant visa holders, such as students and specialty workers. Unfortunately, if one of these non-citizens were to be automatically registered to vote at the DMV, the outcome could be devastating.  There are published cases in the Seventh and Eighth Circuits in which such unintentional registrations created a period of chaos for the unwary person.

According to the Immigration and Nationality Act (INA), a non-citizen who is found to have made a false claim to U.S. citizenship in connection with obtaining any benefit, for any purpose, under federal or state law is barred from entering or remaining in the United States without a waiver. For individuals seeking lawful permanent resident status, a waiver for a false claim to U.S. citizenship is generally not authorized.   This means that a person who claims citizenship prematurely can find him or herself in deportation proceedings. 

Since an individual must be a U.S. citizen to vote in a U.S. election, just registering to vote – even without actually voting – could qualify as a false claim under this provision. The elements of a false claim to U.S. citizenship are:

  • The non-citizen made a representation of U.S. citizenship;
  • The representation was false;
  • The non-citizen made the false representation knowingly; and
  • The non-citizen made the false representation for any purpose or benefit under the INA or any other federal or state law.

In sum, the “opt-out” provision of AVR has the potential to be very problematic for non-citizens, especially where language barriers or untrained government workers are a factor. Some individuals do not even realize that they have been automatically registered to vote until they receive mail from the state’s election office or a jury summons. In such cases, proving that the false representation was made unknowingly is imperative; it may determine whether the individual can remain in the United States.  

If you are not a U.S. citizen and think you may have been automatically registered to vote, please contact an immigration attorney at Wilson Law Group to help you make sure that you do not endanger your immigration status by acting on the best of intentions.   Wilson Law Group has successfully helped individuals whom the state either registered in error or who voted unknowingly keep their status and eventually become citizens of the United States.   There are also exceptions for individuals who arrived as children and their parents later became citizens.