Noncitizen voters may have committed felony

Oregon says a "data entry issue" caused it to register at least 306 noncitizens to vote. At least two of them actually voted. That's a problem under Oregon law.

Today is National Voter Registration Day! In Oregon, people need not “rise up” to register to vote, but the state sometimes invites them to commit a felony. (Image courtesy Oregon Secretary of State Elections Division)

The two or more noncitizen Oregon residents who reportedly voted since 2021 due to what the state is calling a “data entry issue” affecting the state’s motor voter law may have, perhaps unwittingly, committed a felony punishable by up to five years in prison and a fine of up to $125,000.

Willamette Week first reported on the state’s admission that it had improperly registered at least 306 noncitizens as voters since 2021. At least two of those noncitizens actually cast ballots, according to state officials. Noncitizens are not allowed to vote in Oregon.

Elections Division director Molly Woon, formerly deputy director for the Democratic Party of Oregon, told The Oregonian, “These folks were registered by no fault of their own. They didn’t do anything wrong.”

It is not illegal for a noncitizen to be registered to vote via Oregon’s motor voter law, which the legislature dramatically expanded in 2015 to register as voters people who obtain a driver license from the Department of Motor Vehicles, with or without the consent of the would-be voter. Oregon began allowing noncitizens to obtain driver licenses in 2019. If a person registered to vote via the motor voter law fails to return a card from the Elections Division within a stated period of time, that person is considered a voter and is sent a ballot at upcoming elections. All Oregon elections are conducted via mail ballots only.

It is, however, a Class C felony to “knowingly make a false statement, oath or affidavit when a statement, oath or affidavit is required under state election laws.” A Class C felony is punishable by up to five years in prison and a $125,000 fine.

The Oregon Secretary of State, by rule, requires a voter to sign the ballot envelope below a statement that provides:

Voter's Statement

By signing below I declare under penalty of perjury that:

→ I am a citizen of the United States;

→ I am the person to whom this ballot was issued;

→ I am legally qualified to vote this ballot;

→ This is the only ballot I have voted this election; and

→ If mailed, this ballot was mailed no later than election day.

I understand that making a false statement in this declaration is a felony

punishable by up to five years’ imprisonment and a fine of up to $125,000

and civil offense punishable by penalties of up to $10,000.

_______________________________________________________

voter’s signature [VOTER’S PRINTED NAME]

The two or more noncitizen voters the state acknowledges therefore committed a felony if, when they signed their ballot envelopes, they were aware they were not citizens of the United States. Importantly, they possessed the requisite knowledge for the crime even if they did not know noncitizens were not allowed to vote in Oregon.

We do not know the identity of the two (at least) affected voters, and do not know for sure whether they were aware of their status as noncitizens when they signed their ballot envelopes. The issue, as this correspondent sees it, is not prosecuting these noncitizen voters; it is in the damage to voting integrity caused by this incident, and the likelihood more such damage will occur in the future.

On its website, the Elections Division, sensitive to concerns about inadvertently registering noncitizens via the motor voter law, describes the voter attestation of citizenship on the ballot envelope as an important safeguard:

How will the system ensure that only U.S. citizens are eligible to vote?​

The Elections Division will only send OMV Cards to people who have provided documentation that they are U.S. citizens. Oregon voters are also required to attest to their qualifications --including citizenship -- at the time they submit their ballot.  

Here, the Elections Division sent Oregon Motor Voter (OMV) cards to at least 306 individuals who had not provided documentation that they were U.S. citizens. Oregon DMV, which is supposed to designate whether someone is a citizen or not before transmitting the list of qualified voters to the Elections Division, says it didn’t in this case due to a “data entry issue.”

Woon’s conclusion that none of the voters did “anything wrong,” suggests the attestation safeguard is not really a safeguard at all. Oregon invited noncitizens to commit a felony by improperly registering them to vote, and sending them a ballot. Those noncitizens took no steps whatsoever to register to vote - they merely failed to opt out of voter registration by returning the OMV card so marked.

Oregon’s opt out motor voter law, combined with its law allowing noncitizens to obtain driver licenses and a “data entry issue” not only allowed noncitizens to vote but may have made them criminals to boot. That is a problem, whether the Elections Division sees it that way or not.