Litigation Update: Non-citizen Voting

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The Public Interest Legal Foundation (“PILF”) filed a lawsuit against the Commonwealth of Pennsylvania’s Department of State in February 2018, for failure to make its voter list maintenance records open to public inspection as required by the National Voter Registration Act. Specifically at issue are records on the extent of registration and voting by ineligible noncitizens, and records on programs used by the Commonwealth to identify and remove foreign nations from the voter rolls. The suit follows a 2015 PILF report on non-citizen voting in Pennsylvania.

PILF’s original action was dismissed without prejudice based on a technical issue with service.  Notably, the Court’s Memorandum specifically concluded, over the objection of the Pennsylvania Department of State, that the Foundation has constitutional standing and falls within the zone of interest protected by the statute.  The case was refiled on April 10, 2019 and is currently pending. 

Featuring:

  • J. Christian Adams, General Counsel, Public Interest Legal Foundation
  • Linda A. Kerns, Attorney, Law Offices of Linda A. Kerns

 

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

 

Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society’s Free Speech & Election Law Practice Group, was recorded on Thursday, November 7, 2019, during a live teleforum conference call held exclusively for Federalist Society members.     

 

Wesley Hodges:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is a litigation update on “Non-citizen Voting.” My name is Wesley Hodges, and I am the Associate Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today, we are very fortunate to have with us J. Christian Adams, who is General Counsel at the Public Interest Legal Foundation and is a member of our Civil Rights Practice Group Executive Committee, as well as Linda A. Kerns, who is an attorney at the law offices of Linda A. Kerns and is a member of our Free Speech & Election Law Executive Committee. After our speakers give their remarks, we will have time for your questions, so please keep in mind what questions you have for this topic or for one or both of our speakers. Thank you very much for sharing with us today. Christian, I believe the floor is yours to start.

 

Christian Adams:  Thank you very much, Wesley. Linda will follow me with a particular focus on one case in Pennsylvania that is extraordinarily important. What I’m going to do is give an overview of the topic, provide some statutory framework, some mention of some litigation, but also the overarching political atmosphere that this issue lives in.

 

      If you were to ask me ten years ago what is the worst type of voter fraud that is occurring, I would probably say something like maybe absentee ballots being manipulated, possibly voter impersonation that voter I.D. would fix. But I think over the course of the last ten years, we’ve come to realize that the biggest vulnerability in our electoral system is non-citizens participating in the process. How big is the problem? Well, I mean, obviously, if you’ve followed the news the last couple of years, there’s competing opinions about that. The truth is, we just don’t know. When the President appointed me to the Election Integrity Commission, we had hoped to get some answers about the scope of the problem. When that commission, of course, dissolved, then we lost one opportunity to do it.

 

      Nonetheless, there’s still efforts underway to gauge it. Just this week, we completed at the Public Interest Legal Foundation a report about Palm Beach County called “The Calm Before the Storm,” which we did a comprehensive look at their election system there, but one of them was the registration of potential non-citizens. And we posted in the report some fascinating voter registration forms that I always encourage people to look at where the registrant actually marks the form to the question, “Are you a U.S. citizen? Yes or no.” And they mark the form “no” and are still registered to vote. This particular individual was born in Guatemala, and this individual voted in the federal presidential election in 2016. So it’s real. It’s happening. And you might wonder why it’s happening.

 

      So let me talk about the statutory framework first. The easiest way for non-citizens to get on the voter rolls is through the Motor Voter process. Now, Motor Voter was passed in 1993. It’s otherwise known as the National Voter Registration Act. It was the top priority of President Clinton when he took office to pass something like this. And what it basically does is it creates  a federal obligation to register somebody to vote for federal elections as long as they complete a federally authorized form. And that form, once it’s filled out, has a presumption of validity, and it has to be offered not only in motor vehicle departments — that’s what we’ve all come to associate Motor Voter with — but also at social service agencies. And the states are required to designate social service agencies where any time someone touched that agency, they had to be offered voter registration. So that was the mechanism by which these forms are being offered to people.

 

      Now, what does the form do or not do to prevent non-citizens from registering to vote? It asks the question, “Are you a citizen of the United States? Yes or no.” And then when you sign the form, it says, “I declare under penalty of perjury that I am a U.S. citizen.” Those are the two barriers to preventing non-citizens from getting on the rolls. And many of you listening and others that I’ve talked to will say, “Surely, there must be something else that occurs to prevent non-citizens from getting on the rolls.” And the answer is no, there isn’t. This is it. This is it.

 

      This is a major debate in Congress back and forth whether there should be more, and what do you do if somebody leaves something blank and doesn’t answer it, doesn’t sign it, how the state should react. That was a huge debate in Congress that by and large the Republicans lost. And so now, state election officials all over the country, when this form is completed, just like the one we have a picture of from the non-citizen who was born in Guatemala, when this form is completed, they’re being entered into the state databases as registered voters pretty much through muscle memory.

 

      Now, that’s the statutory context that has opened up this vulnerability. Over the years, some states have attempted back-end verification. When I say back-end, I mean after the registration has been submitted and the voter is registered, some states have performed back-end verification. They’ve taken public records and have attempted to determine whether or not these individuals have social security numbers, whether they have EIN alien numbers. And even that has been met with fierce attacks from the political left. Take, for example, Georgia. Georgia attempted a citizenship verification. When I was at the Justice Department, I did not work on the matter, but the left leveraged the Section 5 pre-clearance process under the Voting Rights Act to attempt to either stop or neutralize or dilute Georgia’s efforts at citizenship verification.

 

      Let me move to another piece of important litigation, and that’s about the federal form and citizenship verification that came from the League of Women Voters and has a somewhat complex procedural setup, so bear with me. It won’t last long. Kansas, Alabama, and Georgia asked for authority from the Federal Election Assistance Commission to change their form to incorporate front-end citizenship verification that those state legislatures had passed. In other words, Kansas, Alabama, and Georgia passed a law that said, “Hey, when you register on this form, you have to show, perhaps, a passport number or something like that or a variety of other indications of citizenship.”

 

      Well, in order to do that on the form that was mandated by Congress under Motor Voter, they had to get approval from a federal agency. And that particular federal agency happened to be an obscure agency called the Election Assistance Commission. Well, the Election Assistance Commission, or EAC, approved the forms for Kansas, Alabama, and Georgia that would allow front-end verification. In other words, the instructions said, “By the way, you might have to submit additional documents in order to file this registration form showing you’re a citizen.”

 

      Well, I probably don’t need to tell folks on the call what happened next, but the left wing groups filed a lawsuit against the Election Assistance Commission for approving those forms in violation of the Administrative Procedures Act. The Justice Department at the time under President Obama essentially raised the white flag. The case was before Judge Richard Leon in D.C., in the D.C. Circuit. And the Justice Department consented to a temporary restraining order. Okay, you heard that correctly. The Justice Department, defending a federal agency, consented to a temporary restraining order. Well, my organization intervened as defendants, and Judge Leon said he’d been on the bench for a long time, he’d been in private practice for a long time. He never heard of the federal programs branch consenting to a temporary injunction of any sort. And that shows you the ideological battle line surrounding this issue.

 

      And that’s what I want to mention briefly now. Non-citizen voting and registration is a triggering issue to the left and the political apparatus on the left like no other. It’s bigger than voter I.D. They will go completely berserk any time a state attempts to fix this problem, and we’re encountering that in litigation around the county, which will take me to Harris County, Texas. Harris County, Texas, election officials there, this is Houston, Harris County, Texas election officials over the years have admitted that they have a significant problem with non-citizen registration and voting.

 

      These are otherwise known as admissions against interest, if you know the rules of federal evidence. They have made admissions against interest in legislative testimony, in public statements and elsewhere. We took those admissions against interest and filed a document request under Motor Voter. What do you mean by a document request? Motor Voter has a public inspection provision that allows you to literally go into election offices and finger through list maintenance records. Who’s eligible to vote? What have you done about it? What have you done about people who have died, moved away, and so forth? We asked Harris County for those records, which obviously exist, from non-citizen registration of voting, and they denied us, said, “Sorry, you’re not going to get those.”

 

      Well, then we sued under Section 8 of Motor Voter which allows us to get them. And that case has been tied up in the Southern District of Texas for about the last year. It’s moving along recently at a much faster pace. We have a very good judge who I think understands this issue, Judge Hanen down in Houston. And you recall he did some of the DACA decisions that the same folks who don’t mind non-citizen voting didn’t like. And we’re moving toward a resolution, I think, in Houston.

 

      But the facts are that not only does non-citizen voting occur, but election officials and interest groups don’t want you to know about it. And if you do try to find out about it, they will engage in a variety of personal attacks, litigation tactics, and so forth to stop it. And so that’s what happened at EAC. That’s what happened in Harris. We recently had a case in North Carolina that we’ll be appealing to the Fourth Circuit where a very hostile board of elections now in North Carolina denied access to these records there. So I cannot overstate when I started this segment how important non-citizen voting is to the political left. We don’t know how big it is, but by golly, if you try to find out how big it is, you’re in the crosshairs.

 

      Now, one of the biggest cases -- I’m going to turn it over now to Linda because it’s a problem that has gone on for 20 years that we’re trying to get to the bottom of. And with that, Linda Kerns is a lawyer in Philadelphia who is suing the State of Pennsylvania over this. Linda, take it away.

 

Linda Kerns:  Thank you, Christian. In late 2017, the Pennsylvania Department of State and other local officials described what they called a “procedural breakdown” in our state. Apparently, since approximately the mid-1990s, non-citizens were improperly being offered the opportunity to register to vote when they obtained their driver’s licenses at the Pennsylvania Department of Transportation, PennDOT.

 

      Now, Christian’s foundation, the Public Interest Legal Foundation, had been on this issue for a while. Back in 2015, he had issued a report detailing 86 cases where non-citizens had reported their own voter registrations to the City of Philadelphia because generally, when non-citizens want to become citizens, the first thing their immigration lawyer tells them is, “If you’re registered to vote, you better get off the rolls because you’re breaking the law.”

 

      So Christian’s foundation had submitted requests to some of the counties in Pennsylvania under the public inspection portion of the NVRA and got some records regarding non-citizens on the rolls. And if you go to our website, www.publicinterestlegal.org, you’ll see under the case PILF v. Pennsylvania the exhibits that we’ve obtained, which is actual voter registration records where people register to vote, come off the voter rolls, and then re-register and have actually been voting in federal and state elections, even though they’re non-citizens.

 

      In September 2017, a Philadelphia city commissioner disclosed what he called a “glitch” at PennDOT. Now, he called it a glitch. I would have called it the ultimate catastrophe because what he said was non-citizens were registering to vote when they got their driver’s license. At PennDOT, when you get your picture taken for your driver’s license, you answer questions on a computer touch screen. And that screen asked you if you wanted to register to vote before it asked you if you were a citizen. So the screen should have been ordered in a way so that the first screen asked you if you were a citizen and if you said no, you should have never gotten to the screen where it asked you to register to vote. Unfortunately, the way it was set up, you were asked about registering to vote prior to the question about you citizenship status.

 

      So this Philadelphia city commissioner mentioned in his testimony that were up to 100,000 non-citizens that could have gotten on the Pennsylvania voter rolls from the 1990s through 2017. A few weeks later, the Secretary of State of Pennsylvania abruptly resigned with no explanation, and we think it was because of this scandal.

 

      What we found out is there is apparently some type of a code on PennDOT records that identifies whether or not you’re a citizen, and someone in the Department of State thought to compare those records with the voter registration records and figure out how many people were non-citizens. So our Public Interest Legal Foundation submitted a request to the Department of State under the Public Inspection portion of the National Voting Rights Act to inspect the records. The Department of State absolutely refused to comply with our request, and they told us that we are only entitled to records regarding cancellations of voters due to death or relocation. So we sued in the Middle District of Pennsylvania in February of 2018. All we want to do is inspect the records, and the Pennsylvania Department of State is adamant about denying us.

 

      Once we filed our lawsuit, the Pennsylvania Department immediately filed a motion to dismiss. Our first lawsuit was dismissed, but it was dismissed without prejudice, and it was on a very technical issue regarding service. But importantly, the judge wrote a really detailed memorandum and concluded that we did have constitutional standing, and we were within the zone of interest to have the right to see these records. The Department of State had argued otherwise.

 

      We refiled our lawsuit in April of 2019, and the Department of State immediately filed another motion to dismiss. And they challenged it on the same grounds as the court had already said that were okay. They’re saying that we don’t have constitutional standing and we’re not within the zone of interest, even though the judge said we did. So this case is currently pending.

 

      And this is extremely important to me as a Pennsylvanian or anyone in the United States. As of 2016, we had almost 9 million registered voters in Pennsylvania. And by way of example, this week, we had a really hotly contested election for two seats on the superior court. That’s our intermediate appellate court. And the delta between the person who won the second the seat and then the next highest vote-getter, the loser, was only 29,978 votes. So when we hear an election commissioner testifying that there could be up to 100,000 non-citizens on the voter rolls, and people are losing elections by less than 30,000 votes, those are important numbers. In Pennsylvania in 2016, Trump only got 44,292 more votes than Clinton. Toomey, the State Senator who won that year only won by about 86,000 votes.

 

      And it can affect local elections even more. I mean, just this week we had a lot of local judge elections. In Delaware County, Pennsylvania, right outside of Philadelphia, a judge race was decided by only 79 votes. In Montgomery County, a race was decided by only 165 votes. And our governor just signed a new what he called an election reform bill, so we’re becoming a state that allows no-excuse absentee voting, which is essentially voting by mail.

 

      Now, this is important and related to the non-citizens on the voter rolls because there was an article in the Philadelphia Inquirer this week that there are groups that are going around to the nursing homes and the hospitals, and they’re putting papers on the lunch trays telling people to just text a number to get an emergency absentee ballot. Now, unfortunately, this is ballot harvesting. It’s absolutely illegal in Pennsylvania, but the newspaper was celebrating it as if it was a way to get people to vote, just ignoring the fact that it was illegal because you’re not permitted to be an agent for someone on an absentee ballot if you’re not in the same household with them if you’re doing it for multiple people.

 

      So when voter rolls are not accurate, this opens the door for even more abuse. And now in Pennsylvania, that they’ve relaxed the laws about voting and allowing no-excuse absentee voting, and we know that we already have ballot harvesting going on, knowing that the rolls are not accurate really opens up the doors for fraud. In Pennsylvania, the scope of the problem is not known, and that’s the gist of our lawsuit. We just want to, as a first step, understand how many non-citizens are on our voter rolls.

 

      Christian, do you have anything else to add?

 

Christian Adams:  The only thing I would add that’s important to understand is oftentimes we think of it in terms of voter fraud, but I’ve seen the records the voting records and the letters that these non-citizens write to election officials saying, “Please take me off the rolls. I didn’t understand the process. I didn’t understand what they were having me sign. My English is not so good. I thought I was registering for student council elections.” Or they’re the victim of third-party registration drives, and these people are jeopardizing -- they’re mostly all here legally and they have a green card and they want to become citizens. So there’s a whole victim group here of non-citizens who are not necessarily part of a conspiracy.

 

      That’s what’s so brilliant about what the authors of Motor Voter may have intended or not intended to create, and that is a system with inherent failures that take advantage of cultural tendencies to influence the outcome of elections. It’s not as if they sat around in a smoke-filled room and said, “Hey, 20 or 30 years from now, there’ll be a huge influx of immigration. Let’s design a law that will get all those votes to go a certain way.” It’s not like that. It’s just people taking advantage of a system in some places. In other places, it’s people who don’t have any idea what they’re doing. And they’re jeopardizing their ability to be in this country because of a broken voter registration system.

 

      So that’s the last thing I want to say. We just want to know how many people were caught up in this PennDOT problem. I will tell you that the state appears to have hired an outside consultant to fix the mess, and yet, they won’t reveal any of the records related to that hiring. We have heard at the low end there might have only been 10,000 non-citizens voting, only. And so we just don’t know. And when it comes to the integrity of our elections, one non-citizen voting is one too many. And I’ll close with that.

 

      For those of you who would like to see some of these records, I would urge you to go and Google something called “Steeling the Vote.” It is not a Hans von Spakovsky or John Fund book. It is a report that the Public Interest Legal Foundation did, and it’s spelled “steeling” because it’s about Pittsburg, so the word “steeling” is spelled S-T-E-E-L. It’s a deliberate typographical error. It’s a joke. But it’s a very short and easy to read document, a couple half-dozen pages or so, 12 pages with lots of graphics showing you these voter registration forms, the letters being written by the non-citizens. We have a bunch of examples of it. It’s a great document to get a flavor for what’s happening in a critical part of next year’s election.

 

      Allegheny County, Pennsylvania -- and by the way, we got those documents because Allegheny County gave them to us in contradiction from state instructions. A lot of times, counties will comply with  the federal disclosure law even though the states are not. So that’s why we had a snippet of understanding what was happening in Pennsylvania.

 

Wesley Hodges:  Thank you, Christian. Looks like we do have one question from the audience. Caller, you are up.

 

John Shu:  Hello. This is John Shu calling from Orange County, California. And to me, this is of particular interest because I went to school in Pennsylvania at Wharton, not too far from Linda’s Drexel there. But what I’d like to ask is, first, in the course of this litigation, were you able to determine, or did you even try to determine the general demographics or country of origin of the various illegal voters?

 

      And second, here in California, we have illegal aliens who vote all the time in state, local, and federal elections. Do you see other states like Pennsylvania or like Texas becoming like California where, honestly, there’s no enforcement at all? No one really seems to give a darn one way or the other.

 

Christian Adams:  A couple of questions there. Let me try to answer the easiest one first. Have we looked at where these people are coming from? You automatically exclude, I believe, English speaking countries a lot of times because the directions on the Motor Voter process are less confusing. And English speaking countries, frankly, can include places like Germany and Italy with the prevalence of English. But in places like Guatemala, there’s a lot of Central America, a lot of South America, also a lot of Southeast Asia in a lot of these records where those tend to be, I think, the two primary areas that we see.

 

      Now, on to your second question, California, Texas, Pennsylvania. I cannot overstate how important this is to the political left to make sure nobody gets answers because we know that it is happening. We don’t know how much is happening, but this is a huge vulnerability in our election system that can transform an entire electorate. You see this happening in California, particularly Orange County. You had similar problems there over the last 20 years. I mean, there’s been congressional elections there where they have determined that non-citizens were participating, and the margins were not 20,000. They were much closer in some of those congressional elections in Orange County.

 

      So it is a broken system. There are fixes available. There doesn’t seem to be much political will. That’s something that we unfortunately are going to have to live with next year.

 

John Shu:  Unless Linda has a response also, could I follow up with a question?

 

Wesley Hodges:  Of course, John. Please go ahead.

 

John Shu:  The other concern I have is -- and by the way, I want to say thank you for the litigation that both of you all are doing, Linda from the east in Philadelphia and Christian, I know you have roots to the west in Allegheny County.

 

      The question that I have regarding, again, the California and as a model for other states is that in the Ninth Circuit here, if anybody ever tries to challenge any kind of illegal alien voting as we saw in Georgia and North Carolina and other states with identification or whatever, how do you counter the basic premise that supposedly asking for identification or verification of citizenship or anything like that is, number one, racist, purportedly, and number two, a violation of the basic constitutional right to vote because that seems to me here in the Ninth Circuit to be the most popular counters, and very effective here in the Ninth Circuit.

 

Christian Adams:  Right. Well, look, legislatively, the counter is simple. You do what South Carolina did and you make voter I.D. free, easy to get. And if you don’t have it because you were born to a midwife, you have a safety valve affidavit at the voting booth. That’s the easiest way to deal with that.

 

      We did a case in Texas where in discovery, we found — and it’s down along the Rio Grande — there was a human trafficking scheme to move illegal aliens through the valley. What is the best way to get Border Patrol off your back? It’s to show them a passport. But no illegal alien is going to have a passport, a U.S. passport. So what’s the second best thing? It’s a voter registration card because it implies that you’re a citizen of the United States.

 

      So listen carefully to what I’m about to say. Local election officials were working with the human smugglers to provide voter registration cards. They were providing bogus ghost names. They were providing voter registration cards to these illegal aliens crossing the Rio Grande Valley. And when we were doing the deposition down there, and I asked the election official from that county, “You’re aware of this scheme?” “Yes.” “You know that it was providing bogus cards?” “Yes.” “What have you done to figure out which of these hundreds or thousands of people on your voter rolls were part of this scheme?” Answer: “Nothing.” And so they just sit on the rolls in perpetuity, perhaps, getting new cards to pass out to the next wave. So that’s sort of the lackadaisical attitude you have in the Rio Grande Valley that threatens to transform Texas.

 

      This is an integrated strategy. That’s why the left spends hundreds of millions of dollars ranging from third-party registration drives to what I see in court when they show up with their -- in some of these cases, there’s not enough chairs in the courtroom for the other side because they bring dozens and dozens of lawyers. And so this is part of an integrated strategy to transform the country by using vulnerabilities in the Motor Voter process.

 

John Shu:  And is the South Carolina legislative scheme, has that survived Fourth Circuit scrutiny at all, or has it even been scrutinized?

 

Christian Adams:  It did better than that. And I’ve written extensively about this. Eric Holder originally abused the Voting Rights Act, Section 5 preclearance powers to deny South Carolina voter I.D. preclearance, which blocked it. South Carolina then filed in federal court in Washington, which is where the statute says you do it. It’s not the Fourth Circuit. The Voting Rights Act makes you go to the court in Washington.

 

      And Judge Kavanaugh, when — he was assigned to that case even though he was on the court of appeals; this was a three judge panel — Judge Kavanaugh wrote an opinion saying that the South Carolina failsafe mechanism of the affidavit made that. And despite South Carolina having the burden — that’s what Section 5 does, it reverses the burdens — South Carolina had the burden of proving a clean soul, that they had no discriminatory intent, no discriminatory fact. There wasn’t the other side that had the burden, it was South Carolina. And Kavanaugh said that it still satisfied the Voting Rights Act, particularly because of that affidavit provision.

 

John Shu:  Well, thank you very much. And thank you for your great work. My fear is, having been in California now for so long, it’s really a bellwether, I think, for what could potentially happen for the country. Christian, I remember for 43, I was on the White House side, but you took a lot of crap when you were at Civil Rights. Thank you to the both of you for continuing the good fight because it really is hopeless here in California. So thank you.

 

Christian Adams:  Thanks, John.

 

Wesley Hodges:  Thank you, John. We appreciate your questions. We do have two more questions in the queue. Here is our next audience caller.

 

Joy Staveley:  Hi. This is Joy Staveley from Flagstaff, Arizona. I’m not an attorney. I’m just a public member. Mr. Adams, I’ve been a fan of yours ever since reading Injustice. That book steamed me up.

 

      So I have a question and first, a bit of a comment. It seems to me that the Democratic party is becoming the party of lawlessness. I don’t see Republicans endorsing Motor Voter. I don’t see Republicans challenging the authenticity of checking the voter rolls. The Republicans seem to welcome that. When you mentioned Texas, I remember -- I think it was Katherine Harris — I could be saying the name wrong — with the Tea Party group that challenged the voter registration rolls and her whole warehouse full of voting machines was burned down by an arsonist. That was big time stuff. It didn’t get the press I thought it should.

 

      We know there have been problems in Texas and certainly in California, where I hate to say I came from, but I’ve been in Arizona now for over 40 years. The problem is now coming to Arizona. I think we are the next target because they see the possibility of turning our state liberal. And it’s because of the people that are coming here. I’m wondering what we can try to do to stop the Democrats from encouraging this process because I think they are behind it.

 

Christian Adams:  First of all, I don’t ever talk about this in partisan terms because I think it’s a question -- I think you used the right term. It’s lawlessness versus law abiding. I think it’s chaos versus order. I think it’s a much more important and, frankly, profound dynamic or binary opposition than Democrat versus Republican. I think it really gets to the heart of what a constitutional order is. And you’re right. I mean, Arizona, Maricopa County, may have one of the worst election officials in the country. We’ve looked at things there.

 

      I guess your question is, is what can be done about it? That’s a tough one. I mean, folks need to understand when I say hundreds of millions of dollars are moving against us in this area, I mean it. I mean Arabella Advisors, New Venture Fund, Open Society Institute, Kellogg Foundation, I could just rattle off a list of 40 or 50 deep pocket donors that fight in court, on the airwaves, in the media consortium that they fund which is writers like Jessica Huseman at ProPublica, or one time it was Ryan Reilly at HuffPost or TPM Muckraker. They literally have a fully integrated, well-funded system to preserve process vulnerabilities, whether it’s attacking voter I.D., redistricting, same day registration in Minnesota that got you Al Franken.

 

      It is a wholly integrated war that some of us have been warning about for 10 years, Hans von Spakovsky, Cleta Mitchell, and so forth. And they totally, I think, are out in the open now. And the one thing you can do I think you’ve done, and that’s educate yourself as to what’s going on. And 12 years ago, this wasn’t on anybody’s radar except the left that was about to deploy it.

 

Wesley Hodges:  We do have three more questions in the queue if my tally is right, so we’ll just continue on to our next caller.

 

John Melko: Hi. This is John Melko in Houston, although when -- I’ll mention I’m originally from Philadelphia; moved here 38 years ago. I think it was the 2016 election, Philadelphia County logged more votes for Hillary Clinton than they had registered voters. Is any of that attributable to this voter registration issue?

 

      And then a quick question for Christian: Has anybody thought about maybe taking up the cause in a civil context to get -- for no other reason than to help the people and get some discovery of a resident alien applying for citizenship who was denied because of this confusing voter registration form?

 

Linda Kerns:  So I can answer the question about Philadelphia. A lot goes on in Philadelphia. Even Christian can attest to that. I don’t believe that Clinton received more votes in 2016. In fact, in Philadelphia in 2016, she received less votes than Obama had received four years before, and Trump received more votes than Romney had received. Now, Clinton still won Philadelphia by a huge margin, but that got made up in the rest of the state. I think that’s a little bit of -- and believe me, a lot goes on in Philadelphia. I don’t think that happened in 2016 that Clinton received more votes than registered voters.

 

Christian Adams: As to your question about a civil cause of action for somebody who’s been victimized by this process, it’s a very intriguing thought. I think it takes some piggybacking  and leapfrogging logically to get there because when you have issues of sovereign immunity, there’s a lot of different things in play.

 

      What we’re trying to focus on now is at least be getting -- we’re sort of like that first contact moment. We’re making first contact with the problem because nobody’s made first contact in any systematic way until the last couple of years. And so once we have a better understanding of the problem, we found that in New Jersey, we did a report called “Garden State Gotcha” that you can read about this happening to aliens in New Jersey. We did a sanctuary report called “Safe Spaces” where we went to various sanctuary jurisdictions to harvest the non-citizen voting records. We’re still in that first contact phase, at least I think so.

 

      Finding the alien who was victimize is a big lift because you’ve got to persuade them to be a plaintiff also. And that’s -- they have all their interest groups will come down hard on them to never talk to those people on the other side of the spectrum. I don't know. I mean, it’s intriguing and certainly worth looking at in the future.

 

John Melko:  Thanks for that. Linda actually is -- I was just doing a quick internet search. I was incorrect. It was at least rumored or reported in the 2012 election that there was the voter numerical problem in Philadelphia County.

 

Linda Kerns:  I think the problem that you’re referring to is there were some election districts in Philadelphia in 2012 that received no votes for Romney, but that’s not necessarily fraud. I mean, there are some neighborhoods in Philadelphia where no one would have cast a vote for a Republican.

 

Christian Adams:  Yeah. I want to echo Linda. The lady from Arizona asked me, “What can we do?” One of the most important things we can do — and look, I’m not always perfect at this either — is do your best to not fall into Snopes world on election stuff. People bring up the thing about Romney getting no votes. Look, there’s a precinct in South Carolina called Dream Keepers that I used to look at as an extreme precinct analysis. And it’s in Georgetown County, and stuff like that happens all the time. I mean, I’ve been in lots of precincts where the Republican is not going to get any votes. That’s just the state of racially polarized voting.

 

Wesley Hodges:  We do have two more questions in the queue. Here is our next caller.

 

Caller 4:  Hi. I’m calling in from Connecticut, clearly a blue state. But this type of heinous activity is occurring here, clearly, as it is in other states. I have really two questions, if I could. One is who are these groups that seem to be continuously promoting this kind of lawlessness, and why do they feel that they have lawful grounds to do this?

 

      And the second question is -- this one drills down a little bit on the element of law. If you enfranchise illegal alien voters, isn’t the argument, the constitutional argument out there that you are thereby disenfranchising valid lawful voters, almost like a reverse due process argument? If you let illegal aliens vote, you are actually sucking away the valid vote of others who are lawful citizens. Those are my two points or questions.

 

Christian Adams:  Linda, maybe I’ll take the first one, and that is the roll call of the bad guys. The CRC has done a lot of work on this, Scott Walter there, and he’s done a lot of inventory on who they are, who’s funding them.

 

      All I’ve got to do is look at the docket sheets. Public Interest Legal Foundation, on behalf of ACRU, sued Brenda Snipes, Broward County, a couple years ago. And next thing you know, I was being intervened on by the SEIU of Florida. League of Women Voters, ACLU, Advancement Project, Protect Democracy Project, MALDEF, Demos, although they’ve sort of faded. Project Vote went out of business, but they were in -- they might be the only ones who have ever gone out of business. Brennan Center for Justice, I mean, they top the list of vote fraud deniers.

 

      These are huge institutions with -- I mean, ACLU has an endowment, I think, of $400 million. So there’s enormously well-funded organizations who are in court in Kansas, Georgia, Florida, Virginia, North Carolina. These are all states with active cases to preserve vulnerabilities in the system. Texas is being sued constantly by the left. I mean, they’re just everywhere. They’re extremely well-funded. They’re relentless. They recruit at law schools like they’re giving away free cheese. I mean, it’s a juggernaut of efforts on these groups to preserve the vulnerabilities we’re talking about.

 

Caller 4:  So Christian, in order for these groups to get standing, they just throw up a citizen plaintiff who happens to side with the illegal alien voter? Is that how they get standing?

 

Christian Adams:  Forget about the illegal alien voter so much as the other broad issues we talked about. They get standing on their own. The standing jurisprudence in this area -- I had to deal with LULAC, League of United of Latin American Citizens. And they got standing simply because they care about the issues. So standing is easy for them. They’ve mastered that task. It’s not even a close call.

 

Linda Kerns:  With regard to the second part of your question about whether these non-citizens are disenfranchising an actual legal voter, I do want to clarify that not all non-citizens who might be voting are illegal aliens. Many of these people are in the country legally, which is how they’re getting driver’s licenses in Pennsylvania and elsewhere. They’re here on green cards or some other legal immigration status. But just because you’re here legally, that does not mean that you are permitted to vote. There probably are illegal aliens voting too, but a lot of what we’ve discovered are people who are here legally and voting nonetheless, even though they’re non-citizens.

 

      But I would agree with you that every person who is voting who is not permitted to do so by law is diluting the vote of someone who’s legally permitted to vote. And when I talk about some of these close races, especially because we just had a municipal election here in Pennsylvania, I mean, that’s where you see some of the closest races. And you don’t know what would have happened if all of those voters -- we were sure all of those voters were legal. So it could be affecting races.

 

Caller 4:  Thanks to both of you for the fight. I appreciate it very much. Thank you.

 

Wesley Hodges:  Thank you, caller. By my count, we have two more questions in the queue. And next caller, you are up.

 

John Babbitts:  Hi. This is John Babbitts from Pennsylvania. I’m an Inspector of Elections in Pike County. And a lot of our voters, when they are standing to wait to cast their ballot, they ask about this issue. What are the best references for me to stay up to date so that I can give an accurate answer when they come through?

 

Christian Adams:  I’m not sure what the exact questions are and the exact context, but the document I would refer you to is the United States Department of Justice Federal Election Crimes Guide. It’s on the internet, and it is a very well done document that catalogues the very statutes.

 

      I mean, don’t forget, if a non-citizen is registering on that Motor Voter form and actually casting a ballot, they’ve committed essentially three federal felonies. This is 15 years in prison. We’re not talking about you didn’t get your dog tag for your rabies shot. This is serious, serious stuff. And the left likes to minimize that. Dale Ho at the ACLU is going to bat for a criminal down in Texas who was voting illegally and was going to be deported, and the ACLU, to really add a gloss to it, is rushing in to prevent the deportation of an alien who is voting in Texas elections and was convicted of it. It’s not that they were trying to defend her; they’re now trying to prevent her deportation. That’s how far they’ve fallen.

 

 

Wesley Hodges: Thank you. We do have this last caller in the queue. Caller, you are up.

 

Caller 6:  You’ve mentioned a couple, I’ll call them tentacles, where -- like the Houston example, and even the Leon suit in Washington is about three states, not about a national issue. So going back to the tentacle thing, I mean, the way you kill an octopus is you stab it in the head. You don’t arm wrestle it because it’s got all those arms that you were mentioning with the different things. Is there any way to do a centralized suit to say that this is, as applied in the United States, the NVRA or whatever it’s called is just unconstitutional?

 

Christian Adams:  Well, that case has been brought and lost back in 1995 by the State of South Carolina. Not all of the NVRA, but they were challenging particular provisions. But based on the rulings, I think in the Fourth Circuit and I think Illinois also brought a case and lost it, it just is not a, in my view, credible argument that the NVRA is unconstitutional.

 

      Don’t forget, we’re using parts of the NVRA that only the left had been using, the public records provisions, the voter roll cleanup provisions. So I don’t necessarily want to see it go away because we’re using it to fight them. If we didn’t have that, we’d really not have many tools at all because then they would use the Fourteenth Amendment, the Fifteenth Amendment, Section 2 of the Voting Rights Act to basically run the table on us. So I don’t really want to see the NVRA go away right now.

 

Caller 6:  All right. If I could just make a follow-up then. I was speaking loosely. I’m referring to the thing in the federal form that says that it’s sufficient to attest that you’re an alien. And what’s different between now and -- I don't know what the Illinois and South Carolina challenged in the mid-90s, but you have evidence now that it’s not sufficient. So I don't know if those were facial challenges or as-applied challenges, but it seems to me that there’s a -- if there were a venue where you could stop this, it seems like you have enough ammunition to do it.

 

Christian Adams:  Right. And the case is actually still pending in front of Judge Richard Leon on summary judgement motions, if I’m not mistaken. So now, I will tell you that it got appealed up, and a very, very bad opinion on largely administrative procedures issues came down from a panel at the court of appeals of the D.C. Circuit. And so Leon is kind of constrained by that opinion and was hopeful — and here’s where the really sad news of the call is — that the Trump administration and the federal programs branch would reach a resolution.

 

      But the truth of the matter is that many of the lawyers at the DOJ who are handling these things are still -- they still think it’s 2011. And they haven’t gotten the memo that there’s a new sheriff in town. And as you’ve watched from the news, it’s quite the opposite. They don’t like the new sheriff, and they’re doing everything they can to get rid of the new sheriff. So that’s also part of the problem.

 

Wesley Hodges:  We do have one more question here. Let’s go ahead and go to that caller.

 

Barbara Haskins:  Hi. I’m Barbara Haskins in Charlottesville, Virginia. I’ve enjoyed this, and I support your work. And I’m not a person in favor of lawlessness. One thing that struck me as you’re talking about the left winning a lot of elections through this kind of effort, and I would just remind everybody that the more the right has compelling platforms, that’s helpful when you’re trying to win an election. And there’s been a lot of talk about modernizing the platforms on the right side of the political spectrum, but I think there’s some room to move on that still.

 

Christian Adams:  Let me address that. Look, I agree with you that policy obviously matters. But what the left has determined years ago is that process sometimes matters more, and what the rules of engagement are, the rules of the game, who can vote, when they vote, how do they vote, how to they register, all of these boring things that people who care about policy don’t want to contemplate. The left made a very conscious decision years ago that process is more important. They’ve poured millions and hundreds of millions of dollars into process, whether it’s a Senate filibuster, whether it’s campaign finance rules, whether it’s the election process rules we’re talking about today.

 

      It’s a great idea to have a good platform, but I’m telling you, they play the game of process. And that’s how they got Al Franken in the Senate to vote for Obamacare. He became the deciding vote on Obamacare, a policy question, but he got there because of process. And process matters intensely. And that’s what I think the left realizes, and I think that constitutionalists are beginning to realize.

 

Wesley Hodges:  Thank you, caller. We do appreciate you participating and for everyone who has participated so far. Seeing as we just have about five minutes left of our time and no more questions in the queue, I’d like to have the mike be turned back to Linda and Christian. Linda, would you like to start with any closing thoughts?

 

Linda Kerns:  Yes. Christian was born in the Steelers side of Pennsylvania, and obviously, I live in the Eagles side of Pennsylvania. But I do want to thank Christian because his foundation, the Public Interest Legal Foundation, is doing such excellent work here in Pennsylvania and all over the country. So I urge everyone to look at his website, www.publicinterestlegal.org, because it has lots of information about this case in Pennsylvania as well as all the cases that he has going on, and it’s a treasure trove of information. So I just want to make sure that I thank Christian because he does not live in Pennsylvania anymore, but he is probably doing more to make Pennsylvania voting safe and fair than anyone who actually lives here.

 

Christian Adams:  Well, thanks. I don’t have much more. Linda, that was humbling and wholly unnecessary, but I appreciate it. And I just want to thank everybody for participating on the call because the fact that you care about this makes a difference.

 

Wesley Hodges:  Well, I hope that’s very clear, Linda and Christian. On behalf of The Federalist Society, I would like to thank you both for the benefit of your valuable time and expertise today. We welcome all listener feedback by email at info@fedsoc.org. Really, thank you all for participating today with your questions and with your time. We are now adjourned.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at www.fedsoc.org/multimedia.