On October 30, 2024, a foreign national college student from China was criminally charged with two crimes related to casting an unlawful vote in Michigan. Because my day job involves legal research and writing in the area of U.S. immigration law, I thought that it would be interesting to take a look at this case from an immigration perspective (note: I am not a lawyer). Below, I will examine a news story about the alleged unlawful vote and the resulting criminal charges before considering potential immigration consequences based on the facts presented.
The October 2024 Michigan Case
I quote from a report from The Detroit News on the criminal charges brought against the Chinese student:
The 19-year-old from China was legally present in the United States but not a citizen, which meant he couldn’t legally cast a ballot, according to information from the Michigan Secretary of State’s office. He registered to vote on Sunday using his UM student identification and other documentation establishing residency in Ann Arbor, signed a document identifying himself as a U.S. citizen and his ballot was entered into a tabulator, according to the Secretary of State’s office.
The article notes that the Chinese student was “legally present” in the United States. While it does not note his status, given the facts presented, I would guess that he is present in the United States on a nonimmigrant F-1 visa, which is the most commonly-used nonimmigrant visa category for studying in U.S. colleges.
Regardless of the particulars of the Chinese student’s status, federal law (18 U.S.C. 611(a)) provides that only U.S. citizens are eligible to vote in Federal elections (a very small number of localities allow foreign nationals to vote in local elections). In this case, prosecutors allege that the alien student falsely signed a document claiming to be a U.S. citizen in order to vote. The Detroit News explained that the student was charged with perjury (here “making a false statement on an affidavit for the purpose of securing voter registration”) and “being an unauthorized elector who attempted to vote.” Both charges carry potential prison sentences. One notable point is that neither of the Michigan criminal charges target aliens. Both of the statutes could reach a U.S. citizen who provided a false affidavit to secure voter registration or who attempted to vote despite not being eligible.
One may naively think that this individual’s vote, which was illegally cast and then unwittingly “entered into a calculator” by election officials, will not count. Not so, suggests The Detroit News:
The student’s ballot is expected to count in the upcoming election — although it was illegally cast — because there is no way for election officials to retrieve it once it’s been put through a tabulator, according to two sources familiar with Michigan election laws.
While it is good to see Michigan acting quickly to prosecute a case of foreign national voting fraud, it is not in any way good that Michigan devised a voting system wherein it is impossible for concerned parties to challenge potentially invalid votes. Every illegal vote dilutes the votes of U.S. citizens. We should hope to see Michigan revise its systems and procedures in the future in a way that makes it possible to challenge legally invalid ballots.
Potential Immigration Consequences of Michigan Unlawful Voting Case
The Chinese student was criminally charged for his conduct related to his unlawful vote under Michigan State law. As The Detroit News noted, he faces fines and potentially imprisonment if he is convicted. However, criminal law, whether it is State or Federal, and immigration law, are separate matters. Immigration law is civil in nature and administered by the Federal government. Thus, any immigration consequences an alien student would face for unlawful voting are distinct from criminal consequences.
Prosecutors allege that he falsely claimed to be a U.S. citizen in order to register to vote and then in fact voted despite knowing that he was not eligible to do so. As a threshold matter, the charged student is, of course, presumed innocent under the law until proven guilty. Thus, for this to be an interesting exercise, we will proceed assuming arguendo that he did commit the underlying conduct he has been charged with.
The article does not go into detail about the student’s immigration status. Thus, we will again have to make some assumptions in order to proceed. It notes that the student is a 19-year old citizen and national of China who is not a citizen of the United States. Moreover, it notes that he is a student at the University of Michigan. I ventured that there is a good chance he is a nonimmigrant student here on F-1 status, but there are other possibilities. For example, he could be a lawful permanent resident or a derivative visa-holder (non-exhaustive). For our purposes, his status does not make too much of a difference. We will, however, proceed under the assumption that he is present in the United States pursuant to having been lawfully admitted or, alternatively, having had his status adjusted to that of a lawful permanent resident. In other words – we will assume that he is present in the United States pursuant to lawful admission.
The immigration laws feature two provisions deal with unlawful voters. These two provisions are identical in form but differ in effect. One renders unlawful voters inadmissible, meaning were they to apply for admission into the United States, they would not be eligible. The other provision provides for deportability of aliens who are in and have been admitted to the United States, that is, for the removal of aliens already here after having been granted admission. Because we are assuming that the Chinese student was in the United States after having been admitted, we are chiefly concerned with the deportability ground for our instant purposes. But I will note the location of the inadmissibility provision as well.
- Inadmissibility for Unlawful Voters: Section 212(a)(10)(D)(i) of the Immigration and Nationality Act (“INA”)
- Deportability for Unlawful Voters: Section 237(a)(6)(A) of the INA
(Note: The INA is part of Title 8 of the United States Code. To find both of the above statutes in the U.S. Code, substitute “8 U.S.C. 1182” for section 212 of the INA and “8 U.S.C. 1227” for section 237 of the same.)
These statutes address : “Any alien who has voted in violation of any Federal, State, or local constitutional provision, statute, ordinance, or regulation”…
A few conditions must be met in order for an alien to be inadmissible or deportable for unlawful voting:
- The alien must have actually voted in violation of the law. The immigration provisions do not cover unsuccessful attempts to vote unlawfully.
- The alien’s vote must have been unlawful under a “Federal, State, or local constitutional provision, statute, ordinance, or regulation…” That is, the alien’s vote must have violated a law the alien was subject to.
Despite the fact that the immigration unlawful voter provision requires that the alien have violated a law he or she was governed by in voting unlawfully, the statute does not require that the alien have bee convicted . That is, for immigration purposes, it only needs to be established that the alien violated a law for voting unlawfully, not that he or she was actually charged, much less convicted. For example, an alien could be charged as removable under section 237(a)(6)(A) of the INA and be placed in removal proceedings before an Immigration Judge even if he or she was never criminally charged with unlawful voting. In these proceedings, the Department of Homeland Security, which serves as prosecutor in removal proceedings, would only need to establish through the proffer of clear and convincing evidence that the alien violated a Federal or non-Federal law in voting unlawfully. While this is certainly easier to do when the Department can point to a criminal conviction, we will see that it is entirely possible to do without.
(For those of you who may be wondering whether there is an implied conviction requirement, a cursory look at section 237 INA establishes that this is not the case. Many deportability provisions explicitly require a conviction. For example, section 237(a)(2)(A)(iv) of the Act provides that “[a]ny alien who is convicted of a violation of section 758 of title 18 (relating to high speed flight from an immigration checkpoint) is deportable.” That is, when the Immigration laws want to require that an alien must actually be convicted to trigger an adverse immigration consequence, they say so.)
The unlawful voting inadmissibility and deportability provisions generally defer to Federal and non-Federal criminal statutes for what constitutes unlawful voting. Thus, they also generally defer on what constitutes an exception. But there is one very limited exception. The inadmissibility exception is found at section 212(a)(10)(D)(ii) of the Act and the identical deportability exception is found at section 237(a)(6)(B). They read as follows: “In the case of an alien who voted in a Federal, State, or local election (including an initiative, recall, or referendum) in violation of a lawful restriction of voting to citizens, if each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization), the alien permanently resided in the United States prior to attaining the age of 16, and the alien reasonably believed at the time of such violation that he or she was a citizen, the alien shall not be considered to be inadmissible under any provision of this subsection based on such violation.” These exceptions are very narrow, requiring that the unlawful voter have U.S. citizen parents, that the alien permanently resided in the United States prior to turning 16, and that the alien reasonably believed he or she was a U.S. citizen at the time of voting. All three of those conditions must exist for the exception to be relevant. For the purpose of our look at the alleged unlawful voting at Michigan, we will assume that the young man does not fall within the ambit of the exception – both because he most likely does not satisfy the first two conditions and, because we are assuming for the purpose of this exercise that the allegations are true and correct, he knew that he was not a U.S. citizen.
While the exception itself is not too relevant to our study, the original source of the exception is. The immigration exception to unlawful voting mirrors the exception to unlawful voting in Federal criminal law for Federal elections. 18 U.S.C. 611(a). This statute makes it illegal for aliens to vote for President or members of congress. However, it provides that an alien may vote in a non-Federal election if the following three conditions are met: “(1) the election is held partly for some other purpose; (2) aliens are authorized to vote for such other purpose under a State constitution or statute or a local ordinance; and (3) voting for such other purpose is conducted independently of voting for a candidate for such Federal offices, in such a manner that an alien has the opportunity to vote for such other purpose, but not an opportunity to vote for a candidate for any one or more of such Federal offices.” In short, the Federal statute criminalizing alien voting in Federal elections empowers States and localities to allow aliens to vote in non-Federal elections, provided the elections are designed in such a way that it is not possible for the alien to also vote for Federal offices (this effectively requires separate ballots). However, Michigan does not permit aliens to vote as a general matter, and in any event the Chinese student is alleged to have voted in a general election including candidates for president, U.S. Senate, and U.S. House. 18 U.S.C. 611(c) provides for the same narrow exception to the unlawful voting criminal statute as do the immigration provisions addressed above, involving someone who did not know he was not a citizen.
Before we consider the relevance of the Federal law, let us examine the State charges. Unfortunately, the article about the allegations against the student did not specify the Michigan statutes under which he was charged. As a threshold matter, I will set aside the perjury charge since perjury is broader than unlawful voting. I conducted some research and determined with high confidence that the second charge, which specifically deals with unlawful voting, derives from Section 168.932a of the Michigan Compiled Laws. Based on the facts as they were presented by the article, I surmise that the Chinese voter was charged under part c, which provides, in the pertinent part, that “[a] person who is not a qualified and registered elector shall not willfully offer to vote or attempt to vote at an election held in this state.” Here, the alien was not a “qualified elector,” regardless of what representations he made in order to be issued a ballot, and he then actually completed the voting process .
The Michigan statute, provided I found the correct one, is not on all fours with the unlawful voting inadmissibility and deportability provisions. Specifically, the minimum conduct criminalized in the Michigan statute is “offer[ing]” or attempt[ing]”to vote while being an unqualified elector whereas the immigration statutes require that the alien actually voted. Thus, if we examine a conviction under the categorical approach, the fact of a conviction under the Michigan statute alone does not trigger the immigration penalties for unlawful voting. A 2005 decision by the United States Court of Appeals for the Ninth Circuit (see its appellate jurisdiction) in McDonald v. Gonzales, 400 F.3d 684 (9th Cir. 2005) highlights how relying on state-level unlawful voting statutes can introduce immigration complications. Here, it was not disputed that the alien petitioner, who had been ordered removed in immigration proceedings, voted twice in 1996 in Hawaii in violation of the law. She argued that she did not know she was ineligible to vote. If you read this far, you may think that this irrelevant. However, in bringing immigration charges, the government relied on a Hawaii statute which criminalized knowingly voting when not eligible to vote. The Ninth Circuit granted the alien’s petition for review and remanded the record to the Board of Immigration Appeals for further proceedings after finding that the immigration adjudicators below – here being the Immigration Judge and Board of Immigration Appeals – had not adequately considered the alien’s arguments that she had not known she was ineligible to vote.
(Note: The United States Court of Appeals for the Seventh Circuit (see its appellate jurisdiction) noted its skepticism of the Ninth Circuit’s reasoning in McDonald in a 2012 decision, but regardless of whether McDonald was right, it serves as a good example of how State unlawful voting statutes may differ in material ways from 18 U.S.C. 611. Kimani v. Holder, 695 F.3d 666, 669-70 (7th Cir. 2012).)
Of course, a conviction is not required to trigger inadmissibility or deportability for unlawful voting. I will note here that I would need more time to fully consider how one would best argue a case relying on the Michigan attempted unlawful voting statute, but in theory, the government could bypass that issue, provided it had sufficient facts to support charges that the Chinese student did in fact vote unlawfully, and bring immigration charges on the basis that his vote ran afoul of 18 U.S.C. 611(a), regardless of whether the Federal government charged him under that provision. For example, let us examine a 2015 decision of the Board of Immigration Appeals, the highest administrative review body in immigration law, in the Matter of Fitzpatrick, 26 I&N Dec. 559 (BIA 2015). This case involved an alien who admitted in the course of a naturalization application that she had voted in Illinois in 2006. As a result, she was placed in removal proceedings – and one of the charges was for unlawful voting under section 237(a)(6) of the INA. Despite the fact that she, like the alien in McDonald, had never been criminally charged for unlawful voting, the Department of Homeland Security alleged that her vote was cast in violation of 18 U.S.C. 611(a). The Board dismissed her appeal of the Immigration Judge’s decision finding her removable, noting that 18 U.S.C. 611(a) contains no intent requirement; the only question is whether the alien voted when it was unlawful for him or her to do so.
Thus, assuming that all the allegations against the Chinese student are adjudicated to be true and correct, or alternatively if the student effectively admits to voting unlawfully in the matter the article we relied on suggests, I will venture that it is more likely than not that the Department of Homeland Security would be able to prevail in removal proceedings against him. This would invite other immigration penalties, such as inadmissibility post-removal.
Conclusion
Unlawful voting by aliens is bad from two perspectives. From the perspective of the alien, casting an unlawful vote comes with big risks (potential criminal consequences, removal, inadmissibility, and ineligibility for future immigration benefits including, lawful permanent residents, naturalization) for what seems to be small gain (sneaking a single vote past the radar). More importantly than that, however, is the effect that unlawful voting has on the election process itself. Every illegal vote cast by an alien has the effect of diluting the legal votes of citizens of the United States. Moreover, illegal votes of any sort call into question the integrity of results. While an unlawful vote is bad regardless of whether it changes the outcome, there are many very close elections every cycle. Many of these close elections are little noted or thought about beyond those who are very invested in them. Others, such as the contested 2000 presidential election. which ultimately came down to a margin of 567 votes out of 5,963,110 in Florida, or 0.009% between the winner George W. Bush and runner-up Al Gore, are very heavily discussed and litigated.
While Michigan prosecutors did well to expeditiously bring charges in this unlawful voter case, assuming of course that the facts they presented are true, the election system failed in that it allowed an alien student from China to register to vote, cast a ballot, and have his ballot counted. Moreover, the reportage suggests that authorities may have missed the illegal vote altogether had the illegal voter been bright enough to not bring attention to himself after the fact (assuming arguendo that he is an F-1 student, perhaps authorities should investigate the University of Michigan’s threshold academic requirements for foreign students). Provisional ballots in other election districts exist for a reason. Ensuring the identity of intending voters is a broad subject beyond the scope of the instant article. However, at a minimum, we can only hope that this embarrassing incident will prompt Michigan to reassess how it treats potentially suspect votes, including ensuring they are quarantined for further assessment after the fact.
