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This article was originally published by Votebeat, a nonprofit news organization covering local election administration and voting access.
Alexander Shur, Votebeat
Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Wisconsin’s free newsletter here.
Melissa Kono had just finished a training session with a new Republican poll worker in 2014 when she asked the poll worker if she had any questions.
“Her question was, ‘What do I do when all the Mexicans come in to vote?’” recalled Kono, the town clerk in Burnside, in western Wisconsin’s Trempealeau County. “And I was speechless, because I was like, that just doesn’t happen. There’s all this other stuff you should be asking questions about because it’s new to you … I was just flabbergasted by that comment.”
Since then, as she trains poll workers and clerks across the state, Kono said she has seen the worry over noncitizen voting grow. At this point, she said, the baseless concern that noncitizens will vote en masse in the Nov. 5 presidential contest is the election conspiracy theory she hears about most from GOP poll workers and voters. The suspicion plays into growing doubts about the integrity of elections and century-old stereotypes of immigrants as criminals.
In hindsight, Kono said, “I should have seen this coming, because it’s only bubbled up even more.”
For years, Wisconsin conservatives have been hammering the talking point that noncitizens may be able to cast ballots en masse in the state and across the nation. That’s despite federal law banning noncitizens from voting in presidential elections and the fact that there’s no evidence of noncitizens voting in federal contests in any meaningful numbers.
The messaging has percolated from conservative think tanks to politicians and voters across the state. In Wisconsin, Republicans passed legislation linked to the issue, including a proposed constitutional amendment coming before voters in November. A top Republican lawmaker has also sought to find data on how many noncitizens have state-issued IDs that they could potentially use to vote.
Now, weeks away from Nov. 5, clerks are hearing the same concern from some of their voters and poll workers. And suddenly, the talking point of noncitizens voting in the 2024 election appears to be about as prominent as the repeatedly discredited 2020 election conspiracy theory that corrupt voting officials and hacked voting machines enabled Democrats to steal the election.
Lawmakers have raised concern over the fact that the Wisconsin Elections Commission and local clerks don’t have a specific system to keep noncitizens from voting. Election officials don’t have a database they’re required to use that shows a list of noncitizens with state-accepted IDs, for example, though one clerk in southeast Wisconsin says she has found a state system that has helped her catch noncitizens who registered to vote.
Noncitizens and immigrant advocates say no such system is needed. It’s already a felony under federal law for noncitizens to try to vote, and the risks of doing so — including jail time and deportation — are enough to dissuade them from casting a ballot.
Talking point emerges ahead of 2024 election
The conservative messaging about noncitizen voting, which emerged more than a century ago, serves a few purposes for contestants in the current election cycle, said UW-Madison political science professor Barry Burden. First, it focuses attention on immigration, which is a signature issue for Republicans and their presidential nominee, Donald Trump. Second, it acts as a cover to explain why Trump lost the popular vote in 2016 and 2020.
And third, “It sets the stage for this fall’s elections,” Burden said. “That if things don’t go as the Republicans would like, there has been a premise laid out already that noncitizens are part of the problem and are committing fraud and might be responsible for an election that’s not trustworthy.”
Indeed, the Trump campaign appears to be laying the rhetorical groundwork already for legal challenges based on the premise that noncitizen voting will swing results.
“Democrats are pushing for non-citizens to vote and influence the future of our country,” Trump spokesperson Karoline Leavitt said in a statement, referencing proposals in some cities allowing noncitizens to vote in local elections and adding that Democrats “aren’t even trying to hide their election interference schemes.”
That line of thinking has already inspired legislation and lawsuits in Wisconsin.
Over the past couple of years, as some cities around the country allowed noncitizens to vote in local elections, Wisconsin Republicans pushed for a proposed constitutional amendment that would state “only” U.S. citizens can vote in local, state and federal elections. That’s the proposal on the November ballot.
Republicans in 2023 also passed legislation requiring that state IDs issued to noncitizens be marked as not valid for voting purposes. Lawmakers considered the bill after the clerk in Mequon, in southeastern Ozaukee County, said she had four experiences in 18 months with noncitizens either voting or trying to vote. But Gov. Tony Evers, a Democrat, vetoed the legislation, saying the bill could cause noncitizens to be treated unfairly and perpetuate false claims about elections.
This August, a Wisconsin voter filed a lawsuit alleging the Wisconsin Elections Commission and Department of Transportation weren’t sharing data that would help election officials block noncitizens from voting.
Rep. Scott Krug, a Republican who chairs the Assembly Elections Committee, said it would be his “mission” to build a better system to prevent noncitizens from voting.
In the meantime, despite a lack of evidence, right-wing claims about noncitizens voting en masse increased.
“There is a non-negligible amount of voter participation by non-citizens in federal elections, which is not only a serious threat to the integrity of our elections and the democratic process they represent, but also has the potential to reduce Americans’ trust and confidence in election results,” stated an Oct. 7 letter that congressional Republicans, including Wisconsin’s U.S. Sen. Ron Johnson and U.S. Rep. Tom Tiffany, sent to U.S. Attorney General Merrick Garland.
In June, Trump posted on social media, “Non citizen Illegal Migrants are getting the right to vote, being pushed by crooked Democrat Politicians who are not being stopped by an equally dishonest Justice Department.”
House Speaker Mike Johnson told Politico recently, “If you have enough non-citizens participating in some of these swing areas, you can change the outcome of the election in the majority.”
No required verification system, but one clerk said she checks every voter
Kono, the former Burnside clerk, said some of the election workers she has trained recently have asked her how to verify voters’ citizenship. She tells them that when voters register, they must certify under the penalty of perjury that they’re U.S. citizens.
“Some of them are not satisfied with that,” Kono said, “because it’s like, ‘Well, how do you verify it?’”
As it stands, Wisconsin has no required process to verify whether every person who seeks to vote is a citizen. And the Department of Transportation doesn’t currently have a system providing voters’ current citizenship status to election clerks.
Mequon City Clerk Caroline Fochs said that for several years she’s been using a different system to verify citizenship, and has used it to discover noncitizens who registered to vote or cast ballots — leading in a few instances to prosecution.
When people register in Mequon to vote, Fochs said, she checks their information against a Wisconsin Department of Transportation system providing access to driver records. The Public Abstract Request System doesn’t connect to the voter rolls, but Fochs said it does indicate whether people with licenses were U.S. citizens when they applied.
She had used that system for about 15 years to check the information voters provided when they registered. In 2021, after somebody didn’t mark that they’re a citizen on a voter form, she also began using the system to check for citizenship status.
When somebody is marked as something besides a U.S. citizen, Fochs said, she sends their information to an agent at the U.S. Department of Homeland Security to check whether that person has since become a citizen. Fochs estimates that about 20% of people not marked as U.S. citizens in the system are confirmed by DHS to be noncitizens. She refers those cases to local law enforcement, she said.
Fochs takes the extra confirmation step, she said, because the state’s current system, where people swear under penalty of perjury that they’re citizens, doesn’t require any verification after the fact.
“If nobody’s looking, nobody’s ever going to be prosecuted, right?” she said on Friday. “They could check the box and sign their name, but if nobody has the ability to then take the next step and check it, you could do it all day long. The penalties don’t matter. So we need to check it to make sure that people are being honest.”
Several other clerks told Votebeat they had never heard of the lookup tool, or if they had, that they weren’t using it to check for voters’ citizenship status.
One clerk who discussed the system with Fochs, Oconomowoc City Clerk Diane Coenen, expressed concern over the potential for noncitizens to vote and face penalties, but said she won’t be using the lookup tool because the city lacks staffing to look up every voter in the growing community, and she doesn’t want to use it only in certain cases.
Transportation Department says records aren’t current
Department of Transportation spokesperson John DesRivieres declined to comment.
But the agency acknowledged in a recent legal filing that its citizenship data isn’t a reliable tool to check for people’s current citizenship status.
Responding to the lawsuit claiming that the department should share citizenship data with the election commission, the agency said it doesn’t have current citizenship information, but rather just “outdated information about the status of applicants for driver licenses and state ID cards at the time of application.”
“Every year, thousands of lawful permanent residents in Wisconsin become naturalized citizens, and these individuals generally have no reason to update their citizenship status with DOT,” the filing states.
The often inaccurate data is why Fochs double-checks with someone from the federal Department of Homeland Security, she said.
Fochs said she was confident she wasn’t crossing any legal red lines because she checks the records of everybody registering to vote — not just in specific instances.
But Kono said she wasn’t so sure. “I would be worried about doing something that we haven’t been told or advised to do,” she said.
An ID form asks for proof of citizenship
In Wisconsin, noncitizens with legal status, such as green card holders and lawful temporary visitors, can get Wisconsin driver’s licenses and state-issued IDs just as U.S. citizens do.
There are currently about 135,000 non-expired IDs and driver’s licenses issued to people who were noncitizens at the time of their application, the Department of Transportation’s legal filing says. But sharing their records with the Wisconsin Elections Commission would be illegal under federal privacy laws, the filing says.
There is a separate, free ID for voting that state residents can apply for. Typically, those applying for that card need to provide proof of citizenship. However, people without proof can still request one of those IDs by filling out a separate form that asks them for their identifying information. Lying on that form is punishable by a six-month jail sentence and $1,000 fine.
And as Kono said, people registering to vote are asked whether they’re citizens, and the form instructs them not to fill it out unless they are. Lying on that form constitutes a felony offense, with penalties of up to 3½ years in prison and a $10,000 fine.
Few noncitizens appear willing to risk that penalty.
A Brennan Center for Justice analysis found that election officials overseeing 23.5 million votes across 42 jurisdictions in the 2016 general election referred about 30 incidents of potential noncitizen voting for further investigation or prosecution. A Heritage Foundation analysis of election fraud cases nationwide found two dozen prosecuted cases of noncitizens voting in the last 20 years.
Why immigrants are a more vulnerable target
After his loss in 2020, Trump and his allies helped promote claims that corrupt election officials and voting machine companies rigged the election in Democrats’ favor. They were sued over that messaging, leading to hundreds of millions of dollars in legal settlements.
Meanwhile, of the dozens of lawsuits Trump filed after his 2020 loss, none succeeded in overturning election results in the swing states he lost.
This election, Trump and his allies have turned their attention from voting machine companies to noncitizens, a group that’s less organized and perhaps less likely to sue for false claims.
Burden, from UW-Madison, said suspicion of noncitizen voting could be what drives post-election lawsuits if Trump loses.
“There are millions of noncitizens living in the U.S.,” Burden said. “There’s some living in every swing state, more than 100,000 in Wisconsin. And that might be the focus of at least litigation or outrage after the election.”
But Burden said noncitizens are unlikely to vote in any significant numbers given the penalties they would face.
“It’s a lot of risk involved for a very little benefit, to be casting one vote in an election where there might be 3 million votes cast for president in the state,” he said.
Christine Neumann-Ortiz, the executive director of the immigrant rights group Voces de la Frontera Action, said that whether they are in the country illegally or legally, with visas or lawful permanent resident status, immigrants typically know they can’t vote, and she organizes voter education sessions to make sure noncitizens know they can’t cast a ballot.
“The stakes are so high, they don’t want to vote,” she said. “They don’t want to end up with felony charges or jail time. It would affect their ability in the future to adjust their status, and obviously people don’t want that.”
The few instances of noncitizens getting charged after voting are generally a result of confusion about who’s eligible to vote, she said.
Neumann-Ortiz said the voters likely to bear the brunt of the accusations or suspicion are lawful voters.
“My concern is that all of this anti-immigrant rhetoric is really a way to gin up the MAGA base so that they show up at different polling sites and racially profile voters and try to intimidate or harass people from voting,” she said. “This is absolutely intended to disenfranchise eligible voters through the challenge process.”
In Wisconsin, election officials and voters can challenge somebody’s eligibility to vote based on assumptions about their age, residency, felony status, and citizenship, among other things. But a challenge “based on an individual’s ethnicity, accent, or inability to speak English is unacceptable,” an election commission manual states.
It’s highly unlikely that enough noncitizens would vote to swing the outcome, Burden said, but it could lead Republicans to say — as Trump baselessly did in 2019 about alleged noncitizens on the voter roll in Texas — that the few people they caught are just the “tip of the iceberg.”
While conservatives’ messaging could lead to increased ballot challenges, Neumann-Ortiz said it could have an unintended consequence.
“It’s offensive. It’s racist,” she said. “It’s not true, and it certainly does motivate people who are eligible to vote, whether naturalized U.S. citizens or U.S. citizens who are children of immigrants. It certainly does motivate them to turn out to vote and challenge that kind of hate mongering and disinformation.”
Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Alexander at [email protected].
Votebeat is a nonprofit news organization covering local election integrity and voting access. Sign up for their newsletters here.
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