A virtually similar bill, H.R. 1, has already passed the House of Representatives on a party-line vote. The bill, among its provisions, would create uniform national voting standards, overhaul campaign finance laws and outlaw partisan redistricting.
Both senators are co-sponsors of the companion Senate legislation, so the odds are slim that the ad will have an effect. (The ad also looks like it was produced with a minimal budget.) But perhaps it might convince voters that the Democrats are supporting what the ad calls a “partisan power grab.”
A number of statements are made in the ad, but for the purposes of this fact check, we are going on focus on the ad’s claim that the bill is designed to allow undocumented immigrants to vote — a charge that would have particular resonance in a border state.
The National Voter Registration Act of 1993, commonly known as the “motor voter law,” made it possible for state motor vehicle agencies and social-service agencies to register voters. The proposed law would implement what is known as Automatic Voter Registration (AVR) at motor-vehicle agencies, government agencies and public universities.
Noah Weinrich, press secretary for Heritage Action, cited a critical report issued by the Heritage Foundation concerning H.R.1. The report claimed that the bill’s requirement that states automatically register individuals from state and federal databases, such as state Departments of Motor Vehicles, “would register large numbers of ineligible voters, including aliens.”
Weinrich also cited an article by Hans von Spakovsky, a Heritage senior legal fellow, that criticized as “biased” a CNN fact check of former vice president Mike Pence attacking the bill.
“The complex sections of HR 1 on automatic voter registration require numerous state and federal agencies to send information on individuals to state election officials so they can be registered,” Spakovsky wrote. “Many state and federal agencies don’t have citizenship data on the individuals they deal with.” He added that “HR 1 specifically states that no alien can be ‘prosecuted under any federal or state law’ or ‘adversely affected in any civil adjudication concerning immigration status or naturalization’ due to being automatically registered.”
While Heritage makes this sound nefarious, as of February, automatic voter registration has already been enacted in 19 states and the District of Columbia, so over a third of Americans live in jurisdictions that have either passed or implemented AVR, according to the Brennan Center for Justice at New York University’s School of Law. In this legislative cycle, 39 states have introduced legislation to implement or expand automatic registration.
“AVR makes voter registration ‘opt-out’ instead of ‘opt-in’ — eligible citizens who interact with government agencies are registered to vote or have their existing registration information updated, unless they affirmatively decline. Again, the voter can opt-out; it is not compulsory registration,” a Brennan Center report says. “Second, those agencies transfer voter registration information electronically to election officials instead of using paper registration forms. These common-sense reforms increase registration rates, clean up the voter rolls, and save states money.”
As an example of the potential pitfalls of AVR, Weinrich pointed to an issue that California had in 2018 when it implemented an AVR program through the Department of Motor Vehicles, resulting in thousands of erroneous registrations, including at least one involving a noncitizen. It turned out there was a programming flaw that caused the system to mix up records, officials said at the time. The registrations were canceled and any vote-by-mail ballots, if issued, were suspended. The computer glitch was quickly detected, contained and corrected.
Since 2018, records show, California has registered 2.2 million new voters through the DMV and re-registered 4.8 million voters — and more than 7 million Californians have opted out of voter registration.
“It’s remarkable how few of the states that have AVR actually experienced these types of glitches,” said Wendy Weiser, who directs Brennan’s Democracy Program.
In any case, registration of an ineligible voter is already a federal crime, punishable by up to five years in prison (52 U.S. Code § 20511). It is also unlawful for any alien to vote in any election held solely or in part for the purpose of electing a candidate in federal office (18 U.S. Code § 611).
Peter Whippy, communications director for the House Administration Committee, pointed to several items in H.R. 1’s text that provide safeguards to ensure ineligible people are not registered to vote. H.R. 1 requires every state to implement an automatic voter registration system, but the bill continually makes it clear that only citizens are eligible to be registered. H.R. 1 also requires eligible voters to affirm that they are U.S. citizens before they are added to the voter rolls.
- Sec. 1012(c): [One-time Registration of Voters Based on Existing Contributing Agency Records] State officials are required to provide applicants with the following: “the substantive qualifications of an elector in the State … ” as well as “the consequences of false registration, and a statement that the individual should decline to register if the individual does not meet all those qualifications.”
- Sec. 1012(c): [One-time Registration of Voters Based on Existing Contributing Agency Records] also provides that state officials must send written notice to each individual “of the individual’s voter registration status,” keeping them apprised of their status and thus able to change their status should they so desire.
- Sec. 1013: [Contributing Agency Assistance in Registration] provides that “each contributing agency that (in the normal course of its operations) requests individuals to affirm United States citizenship (either directly or as part of the overall application for service or assistance) shall inform such individual … ” of the “substantive qualifications” required to vote, and that they will be registered to vote unless they decline to register or are found ineligible.
As for the provision cited by von Spakovsky, Whippy said that is intended to provide “a safe harbor for any immigrants inadvertently being added to the voter rolls due to a similar state error and avoid potential deportation or adverse legal action through no fault of their own.”
Weiser said that in the states that have implemented AVR, it had proved to be more reliable and error-free than relying on people’s own assertions that they are eligible to vote. That’s because agencies often already have information on whether a person is eligible to vote, she said.
The Pinocchio Test
In this ad, Heritage Action has taken a somewhat remote possibility that undocumented immigrants would be registered as voters under AVR and turned it into a Democrat desire — that they “want to register illegal aliens.”
First of all, it’s against the law for noncitizens to vote. Second, the proposed law contains numerous safeguards to prevent that from happening — safeguards that would not be in place if Democrats really planned to enlist noncitizens as voters.
Heritage Action can point to only one example when an AVR system inadvertently signed up people not eligible to vote — a computer glitch in 2018 that was quickly discovered and corrected, with the registrations canceled. Since then, no other such problems have emerged in California.
If Heritage had made the case that undocumented immigrants might inadvertently be registered, despite the proposed safeguards, this might have been a Three Pinocchio claim. Errors are always possible with new systems. But claiming, without evidence, that Democrats want to enlist illegal voters tips this claim to Four Pinocchios.
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