Non-citizens voting in our elections poses one of the most foundational threats to our republic. As I detail in chapter eight of my book, Stolen Sovereignty, a record high level of immigration, in conjunction with Motor-Voter laws, has resulted in so many non-citizens voting that elections are actually swayed, especially in close House and Senate elections. In fact, non-citizen voting likely gave Democrats the margin of victory needed to pass Obamacare back in 2010. Now, the federal courts are stealing the sovereignty of the states and disenfranchising the citizenry by preventing them from guarding the benefits of citizenship.
On Friday, the D.C. Circuit Court of Appeals, which has been overrun by leftists, ruled that Kansas, Alabama, and Georgia could not ask for proof of citizenship on mail-in federal voter registration forms — pending the outcome of litigation. In addition to mandating that individuals be allowed to vote without presenting any form of identification, courts have been forcing states to allow individuals to register to vote without even demonstrating that they are citizens. The 2-1 decision overturned a district judge’s denial of an injunction against the federal voter forms requested by Kansas Secretary of State Kris Kobach, noting that the plaintiffs were likely to succeed on the merits of the case. The two majority judges were Judith W. Rogers (a Clinton appointee) and Stephen F. Williams (a Reagan appointee).
As we’ve dissected many times throughout the litigation against basic election integrity laws, Article I, Section 4 of the Constitution clearly grants states the power to determine eligibility for voter registration: "The times, places, and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof." The dissenting judge, senior Judge Raymond Randolph, one of the few originalists left on that court, raised this same point and noted that it would “raise serious constitutional doubts” if the federal government prevented states from enforcing its voter qualification laws.
The Tenth Circuit Court of Appeals already “struck down” laws in Arizona and Kansas in November 2014 requiring those who register to vote with federal forms to show proof of citizenship in order to vote. Overturning a district judge’s opinion, the appeals court denied requests from those states that the federal government alter their forms to require the additional proof and protect the integrity of state elections.  The Supreme Court, in a growing pattern of letting the lower courts run roughshod over the states, refused to hear the case.
The following year, however, Brian Newby, the Executive Director of the U.S. Election Assistance Commission (EAC) — the agency responsible for drafting the federal voter registration forms — accommodated those states and provided for space on the form to require proof of citizenship. When liberal groups brought the lawsuit against Newby’s decision in the District Court of the District of Columbia, Obama’s DOJ took the unprecedented step in February of consenting to the injunction against the EAC instead of defending the government agency. Kansas got lucky and the case was heard by Judge Richard Leon, perhaps the only originalist left on the D.C. District Court (11 of 12 active judges are Democrat-appointed). Judge Leon summarily blocked the request for an injunction.
But alas, the D.C. Circuit Court of Appeals, which is likely gone forever thanks to a slew of Obama appointees on top of existing judicial activists, granted the request for an injunction.
[As an aside, the destruction of the most important circuit by the Left is another reason why I believe we can never fix the judiciary through conventional means.]
Disenfranchising the citizenry and a permanent Democrat majority
It is serious business when a state cannot even prevent non-citizens from voting and must spend years and millions of dollars to merely have a shot at extracting a few concessions from the feds. As I lament in Stolen Sovereignty, “[T]hat states are prevented from even upholding the integrity of their elections from illegal voters of foreign invaders violates the very essence of popular sovereignty, the social contract, and the social compact expressed in the preamble of the Declaration.”
Motor-Voter laws, unless states have the ability to protect themselves against non-citizens voting, will create a permanent Democrat majority. In 2015 alone, 605,000 drivers’ licenses were handed out to illegal aliens in California, accounting for half of all licenses issued in the state that year! How many of them are now registered to vote?
But the problem is not just with illegal aliens. As the flood of legal immigration continues, the growth in non-citizens voting will only continue to skyrocket. While we don’t want illegal immigrants obtaining driver’s licenses, we certainly want legal immigrants to have all the privileges of residents, albeit not the citizen right to vote. But with near-automatic voter registration of those applying for driver’s licenses — without the ability to check for citizenship status — how many legal immigrants are registered to vote and don’t even realize there is something wrong with it?
As the Center for Immigration Studies reports today, “[I]n 1990, immigrants were at least 20 percent of the adult population (18-plus) in just 44 counties; by 2014 they were at least 20 percent of the adult population in 152 counties.” They further note that “the immigrant share of adults has more than quadrupled in 232 counties.” Putting the broader immigration debate aside for a moment, even those who favor mass immigration must admit that the unprecedented growth in immigration poses a foundational risk unless states are able to ensure that non-citizens are not registering to vote through Motor-Voter forms.
If nothing is done about the federal judiciary, unelected judges will not only render elections moot by their self-declared status as the final arbiter of every political and social issue; they will prevent Republicans from winning elections in the first place by stealing the sovereignty of the citizen.
 Kobach, et al. v. Election Assistance Commission, et al., Nos. 14-3062 and 14-3072., cert denied, (10th Cir. 2014).