Voting By Aliens - 18 U.S. Code § 611
Despite all the controversy and suspicion surrounding the United States voting process in recent years and all the conversations about making it illegal for non-citizens to vote in U.S. elections, federal law already prohibits non-citizens (aka "aliens") from voting for federal officials.
Under 18 U.S. Code 611, it is a federal crime for aliens to vote in federal elections. The consequences of violating this statute carry potential imprisonment for up to one year.
18 U.S. Code 611 voting by aliens says, "(a) It shall be unlawful for any alien to vote in any election held solely or in part for the purpose of electing a candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner, unless-
(1) the election is held partly for some other purpose.
(2) aliens are authorized to vote for such other purpose under a State constitution or statute or a local ordinance; and
(3) voting for such other purpose is conducted independently of voting for a candidate for such Federal offices, in such a manner that an alien has the opportunity to vote for such other purpose but not an opportunity to vote for a candidate for any one or more of such Federal offices.
(b) Any person who violates this section shall be fined under this title, imprisoned not more than one year, or both.
(c) Subsection (a) does not apply to an alien if-
(1) each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization).
(2) the alien permanently resided in the United States prior to attaining the age of 16; and
(3) the alien reasonably believed at the time of voting in violation of such subsection that he or she was a citizen of the United States."
What Does the Law Say?
Simply put, under 18 U.S. Code 611, it is against federal law for any non-citizen to vote in elections that are conducted entirely or partially for electing federal officials, including the President, Vice President, members of Congress, and other federal representatives.
The law is designed with a crucial purpose in mind: to preserve the integrity of the U.S. electoral process by ensuring that only eligible citizens participate in federal elections.
To convict you of a crime under this statute, prosecutors must establish that:
- You were a non-citizen of the U.S. at the time of the election in question,
- You voted in an election that included voting for federal officials and
- You actually cast one or more votes for federal offices (as opposed to local or state positions/issues).
What is the Jurisdiction of the Law?
Where things get confusing for some is that 18 U.S.C. 611 only addresses non-citizen voting in federal elections, not state or local elections. In some state and local jurisdictions, it is, in fact, legal for non-citizens to vote for issues or candidates at these levels.
18 U.S.C. 611 makes provisions for these differences by permitting non-citizens to vote, providing all of the following conditions are met:
- The election also includes other issues or positions to vote on.
- State or local laws explicitly allow non-citizens to vote on these other issues or positions and
- The voting on these other issues is conducted separately from the voting for federal positions, allowing non-citizens to vote only on these other issues, not on the federal offices. In other words, the electoral process must be clearly segregated to comply with the law, ensuring that an alien's vote does not inadvertently impact federal election outcomes.
What are Exceptions to the Rule?
In addition to the above concessions, 18 U.S.C. 611 also provides exceptions under which non-citizens will not be prosecuted for voting in federal elections. All of the following must be true for this exception to apply:
- One or more of their parents are/were U.S. citizens by birth or naturalization (this includes adoptive parents),
- They were permanent residents of the U.S. before age 16, commonly referred to as "dreamers" and
- They reasonably believed they were a U.S. citizen at the time that they voted.
What are Some Examples?
EXAMPLE 1: Martha is a non-citizen with permanent legal residency status in the U.S. She decides her long-term residency gives her the right to vote in an upcoming federal election in which she has strong opinions about one particular candidate.
Martha registers and votes for federal offices, including President and members of Congress. Her actions are discovered during a routine audit of voter registrations and ballots. Martha can be prosecuted under 18 U.S.C. 611.
EXAMPLE 2: Javier, a non-citizen in the country on a student visa, resides in a city that recently passed an ordinance allowing non-citizens to vote in local school board elections.
The school board election coincides with a federal election day, but local election officials have taken steps to ensure the processes are distinctly separate between federal and local elections. Javier is not in violation of 18 U.S.C. 611 if he votes only on local issues.
What are Related Federal Laws?
18 U.S. Code Chapter 29, elections and political activities, has several related federal statutes, including the following:
- 18 U.S.C. 592 - Troops at polls.
- 18 U.S.C. 593 - Interference by armed forces.
- 18 U.S.C. 594 - Intimidation of voters.
- 18 U.S.C. 595 - Interference by administrative employees of Federal, State, or Territorial Governments.
- 18 U.S.C. 596 - Polling armed forces.
- 18 U.S.C. 597 - Expenditures to influence voting.
- 18 U.S.C. 598 - Coercion by means of relief appropriations.
- 18 U.S.C. 599 - Promise of appointment by candidate.
- 18 U.S.C. 600 - Promise of employment or other benefit for political activity.
- 18 U.S.C. 601 - Deprivation of employment or other benefit for political contribution.
- 18 U.S.C. 602 - Solicitation of political contributions.
- 18 U.S.C. 603 - Making political contributions.
- 18 U.S.C. 604 - Solicitation from persons on relief.
- 18 U.S.C. 605 - Disclosure of names of persons on relief.
- 18 U.S.C. 606 - Intimidation to secure political contributions.
- 18 U.S.C. 607 - Place of solicitation.
- 18 U.S.C. 608 - Absent uniformed services voters and overseas voters.
- 18 U.S.C. 609 - Use of military authority to influence the vote of members of Armed Forces.
- 18 U.S.C. 610 - Coercion of political activity.
- 18 U.S.C. 611 - Voting by aliens
18 U.S. Code 911 is a federal law that criminalizes the act of falsely claiming to be a United States citizen.
One prevalent method by which people attempt to get around immigration rules is through 8 U.S. Code 1325(c) marriage fraud, which is considered a type of immigration crime.
What are the Penalties?
18 U.S.C. 611 is a federal misdemeanor offense. If you are convicted of voting illegally in a federal election while not being a citizen of the United States, you could face:
- Up to $100,000 in fines and
- Up to one year in federal prison.
What are the Common Defenses?
If you've been charged with violating 18 U.S.C. 611, a skilled federal criminal defense attorney can implement several defense strategies that can either negate the charges or serve to mitigate the penalties. These include, but are not limited to:
- Lack of Intent: While 18 U.S.C. 611 makes no reference to willful intent, demonstrating that you had no deliberate intent to violate the law can still be a substantial defense. If you genuinely believed you were eligible to vote, this could mitigate culpability-especially if no one told you otherwise.
- Mistaken Belief about Citizenship: If you reasonably believed you were a U.S. citizen at the time of voting, perhaps due to misinformation or misunderstanding of your legal status, this may serve as a defense.
- Voting Procedural Errors: If your local area permits non-citizen voting and the local voting authorities don't properly create the distinction between federal and local/state voting, this could serve as a defense. For example, if you came to the voting location and local officials gave you the wrong ballot containing federal officers, your attorney can make a case that you are not culpable because the voting was incidental based on the wrong ballot.
- Qualifying for the Exception: If your attorney can show you are eligible for the exception described above, you cannot be convicted of this crime.
For more information, contact Eisner Gorin LLP, a federal criminal defense law firm with offices in Los Angeles, California.
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