Is There an Alien Voting Loophole in Federal Law?

Over the last few days, I have gotten questions about a supposed federal law that creates a loophole allowing foreigners to vote in federal elections. 

Tracing this rumor backward, it seems the facund Tucker Carlson was witness to its birth.  Someone on his show pushed the notion that foreigners have a free pass to vote in American elections because of a statutory “loophole” that lets them vote. 

So, is it true that federal law makes it possible for foreigners to vote?

Not really.

Let’s start with the good news: Many separate criminal statutes penalize foreigners registering and voting in the United States. Here’s a catalog.

52 USC 20511(2) makes it a felony to fraudulently register or vote. Part of the National Voter Registration Act, it makes it a crime to submit false voter registration forms about the duration of residence. Willfulness is easily satisfied because the disclosures mandated on the federal voter registration form explicitly require citizenship attestation.

Another part of the same section goes further and makes it a felony to submit registrations with any false information at all. All registration forms have citizenship questions as mandated by the NVRA, and if a foreigner says that he is a citizen at the time of registration, it is a crime.

But that’s just the beginning of the catalog.

18 USC 911 makes it a felony to make any claim of false citizenship, period. There is no loophole or exception. The statute is short and sharp:

Whoever falsely and willfully represents himself to be a citizen of the United States shall be fined under this title or imprisoned not more than three years, or both.

That’s all, folks. Any foreigner who registers and votes is violating 18 US 911.

There are more laws. 18 USC 1015(f), passed in 1996 to bolster the ability to prosecute foreigners who vote, makes it a felony to make any false claim related to citizenship. It goes beyond federal elections and reaches into state, local and referenda elections. It relies on congressional power over nationality rather than the Elections Clause, which is something worth noting as a tool.

Now, let’s turn to the monster sighting that Tucker hosted.

It was claimed that a loophole exists that allows aliens to vote. The source of this purported loophole is 18 USC 611(c)(3). It states that 611 does not apply if “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.”

In other words, if the alien recently went to his naturalization ceremony or had credible reasons to believe he was a citizen, he has a defense.

Law schools teach that this is an “affirmative defense.” For starters, this affirmative defense only applies to a prosecution under 611, not the other statutes I’ve cataloged. More importantly, the defendant bears the burden of an affirmative defense, and to raise it, he will have to waive Fifth Amendment rights and take the stand. That subjects him to withering cross-examination by some of the best attorneys in the business—Justice Department lawyers in U.S. Attorney offices (as compared to Main Justice). 

I am not aware of a single defendant successfully using this affirmative defense, but am happy to stand corrected.

So, if this is a loophole that “lets aliens vote,” it is a pretty small one that doesn’t affect all the other felony provisions.

All of this raises a broader point. The election integrity movement is at its best when it is credible and not stoking hype. There are plenty of problems to go around without inventing more.

Are aliens voting? For sure, and it needs to be fixed. You can read many of their letters and documents relating to their admissions that they are voting here, here, and here. One voting alien even said his occupation was “Squid.” But the divisions in the country are made worse when untrue or wildly incomplete things are framed as an urgent danger.