WASHINGTON — Some immigration lawyers and progressives warn that a provision in Democrats' sweeping voting-rights legislation risks inadvertently harming immigrants if it becomes law.
Their concerns reflect a debate among progressives about whether to amend the bill, and they have created tension between two of the party's priorities — maximizing access to the ballot box and supporting immigration — as the Democratic-controlled Senate returns from recess this week and debates it.
Democrats who wrote the House-passed For the People Act want to require states to automatically register people to vote at times like when they apply for driver's licenses or state identification — unless they opt out.
Some immigration lawyers are sounding an alarm, arguing that the measure could mistakenly register people who are legally in the country on work visas or green cards. That could subject them to grave consequences, like being deported or permanently banned from gaining citizenship.
Noncitizens wouldn't have to intend to register, and they could be punished even if they never tried to vote. They could check the wrong box on a form or misunderstand a DMV clerk's question about their legal status and face serious consequences.
"A false claim to U.S. citizenship is what we call the kiss of death. It is a permanent black mark that prevents a noncitizen from ever gaining status," said Gloria Contreras Edin, an immigration lawyer based in Minnesota. "With the HR1 automatic voter registration system, the risk is there's a strong possibility that there will be unintentional violation of that immigration law."
Federal law is strict: It is a crime for a noncitizen to falsely claim citizenship in pursuit of benefits such as registering to vote. There are serious consequences even for honest mistakes. A person who does vote could go to jail.
"Ignorance isn't necessarily a defense," Contreras Edin said. "The proposed plan is likely to harm noncitizens. It could permanently bar lawful permanent residents who have been here for 20 or 30 years, working and paying taxes, who have their whole lives here."
As the Senate reviews the legislation, immigration lawyers like Contreras Edin, as well as some election law experts and progressive strategists, are urging Democrats in private memos and conversations to make changes. They want to modify the "front end" automatic registration to a "back end" system that requires factoring in citizenship documentation before triggering registration.
The progressive community, which overwhelmingly agrees on the need for automatic voter registration, is debating how best to structure the measure to maximize effectiveness, reduce harm to immigrants and defend against political vulnerabilities.
The Brennan Center for Justice at New York University School of Law, which claims credit for helping develop the bill, said it takes protecting vulnerable communities "very seriously" and argued that the legislation would shield noncitizens because it would apply only to applicants who are "affirming United States citizenship."
"It doesn't get down to the details of when and how agencies filter ineligible people out of the system, in part because when and how that happens depends on the agency and the information they are presented," said Sean Morales-Doyle, a deputy director of the Brennan Center. "It is not the case that the For the People Act delineates the details of how that happens."
Morales-Doyle said that more than a dozen states have adopted front-end automatic registration systems and that he's not aware of any instances in which that policy added a noncitizen to the rolls due to a failure to opt out.
The automatic voter registration language is backed by the Latino advocacy group NALEO and Asian Americans Advancing Justice, among others, according to a March 24 letter.
'Underestimating the political vulnerability'
The disagreement boils down to how strong the citizenship verification ought to be. And that creates tension: The stricter it is, the more hurdles it creates to register people, but the more it defers to agencies, the more room there is for error.
Some progressives argue that if Democrats enact a law that registers ineligible people, they risk fueling Republican criticism that they don't care about secure elections.
"We as progressives could lose the upper hand in talking about election integrity and access to the ballot for a generation," said a progressive strategist with deep roots in the voting rights community. "If ineligible voters — if green card holders and others — end up on the rolls, that gives Republicans and those who are trying to ruin voting rights the ammunition that they need."
The strategist, like more than a half-dozen lawyers and advocates who were interviewed, requested anonymity to candidly criticize a bill that is passionately supported by Democrats. Party leaders say its passage is important to the survival of democracy amid new GOP-led voting laws in states like Georgia, which President Joe Biden has compared to Jim Crow.
The expert said staff members for Senate Rules Committee Chair Amy Klobuchar, D-Minn., and Senate Majority Leader Chuck Schumer, D-N.Y., have been made aware of the concerns. The legislation received a hearing in late March, and Schumer has promised a vote in the full Senate after it goes through committee.
Senate Republicans, led by Minority Leader Mitch McConnell of Kentucky, have promised to fight the bill, describing it as a partisan power grab to impose election rules on states and maximize Democratic prospects of gaining power.
An election law expert who has spoken with congressional officials about the bill said lawmakers are "significantly underestimating the political vulnerability" of a bill that could lead ineligible people to be added to the rolls.