- The Washington Times - Wednesday, March 1, 2017

When Virginia Delegate Robert Marshall asked the state’s 133 local governments to provide numbers on noncitizens and jury pools, Loudoun County produced some hefty figures.

Between 2009 and 2014, the Washington, D.C., exurb of more than 350,000 residents had disqualified more than 9,000 of them for jury duty because they were not U.S. citizens.

Loudoun County jury pools come from two sources — voter registration lists and Department of Motor Vehicle driver’s license applications. The county’s 9,000 juror disqualifications means that a potentially significant number of noncitizens vote illegally in Virginia. It suggests a basis for President Trump’s assertion of illegal immigrants voting in November’s elections, though not necessarily by the “millions” he has claimed.

After Mr. Marshall, Prince William Republican, had collected the jury pool data in 2014, a new player entered the state last year. The Public Interest Legal Foundation (PILF) began canvassing election clerks county by county, city by city, demanding they turn over information on noncitizens purged from voters lists and whether they had voted.

The foundation found itself in a stiff battle with Democratic Gov. Terry McAuliffe’s elections chief, who, PILF said, did not want to turn over voter information. In October PILF issued its first report, accusing the state of a “cover up” as “thousands” of noncitizens illegally remain on Virginia’s voting rolls.

Citing data from six counties and two cities, the report found that 1,000 noncitizens were registered to vote in those jurisdictions between 2011 and 2016, and that 200 of them actually voted.

An example: In 2011 Fairfax County discovered 278 registered voters who had told the DMV they were not citizens. Of those, 117 had voted in state and federal elections.

PILF argues that these illegal voters were discovered mostly by accident and not as part of a statewide program to monitor lists and weed out aliens.

“It is, however, likely that based on discoveries to date, thousands of noncitizens remain registered and eligible to vote throughout the Commonwealth,” PILF said.

Liberal Democrats and academics maintain that no illegal immigrants vote in U.S. elections, dismissing two national polls that indicate they do.

However, the Marshall-PILF findings come from counting actual people, not polls. While it is difficult to extrapolate how many noncitizens vote illegally in Virginia, their data provide firm evidence that some do. Polls show they vote overwhelmingly for Democrats.

Mr. Trump has announced he is establishing a special task force to examine illegal voting and out-of-date rosters. Underscoring the issue’s importance, he has appointed Vice President Mike Pence to head the effort. A top Trump aide asserted last month that millions of noncitizens are on voter rosters illegally.

Virginia has become a political battleground state in each presidential election. It is now also a voter fraud battleground.

The Public Interest Legal Foundation, a conservative group striving to ensure voter list fidelity, says it is continuing its campaign. It is threatening lawsuits against Virginia’s counties and cities unless they comply by turning over what it argues is public information under the National Voter Registration Act.

Logan Churchwell, the foundation’s research director, said the problem with Virginia’s system is that noncitizens can register online and check “yes” for citizenship. They then click “send” or mail in the forms. There is no requirement to prove citizenship.

“You just take them at their word,” Mr. Churchwell said. “As long as your address does not bounce back as not valid, everyone assumes that everyone went through fine. So it’s very much by the honor system.”

Voter rolls and DMV lists

Easy access is one reason the foundation is targeting Virginia, along with other states, some of whose voting districts have more registered voters than voting-age residents, according to the census.

Mr. Churchwell said another troubling finding is that virtually none of those who registered illegally are referred to prosecutors by election officials or are ever prosecuted.

“The law is not being followed,” he said.

The exact meaning of Loudoun’s 9,000 noncitizen jury pool disqualifications is up for debate.

Gary Clemens, clerk of the Loudoun County Circuit Court, said the jury pool mix of voters and license holders is done by the state Supreme Court executive secretary office. He said he does not know the ratio of jurors to DMV records. He said he asked the Supreme Court the same question and received no reply.

Mr. Clemens said he assumes that all noncitizens in the jury pool come from DMV records because voter registration forms ask if the applicant is a citizen.

But Mr. Churchwell said his nonprofit’s investigation has found hundreds of noncitizens who answered “yes” to that question. The group’s report reproduced some of those actual forms.

“The reason we have 1,000 voter registrations who were cleaned up because they were noncitizens is because they lied on that form in the first place,” he said.

The Public Interest Legal Foundation and Mr. Marshall have attacked the problem from different directions.

The state lawmaker went after data on noncitizens and jury duty because a good number of the names presumedly come from voter lists.

The foundation is demanding that counties and cities turn over a different data set. It wants the number of noncitizens cleansed from lists and records on any who voted. Since voter’s lists are constantly changing as new people register, that data indicate that noncitizens are always on the lists.

While they practiced different tactics to acquire noncitizen data, both Mr. Marshall and the foundation ran into the same roadblocks: Local governments, sometimes urged on by the state, often refused to comply.

‘A great deal to hide’

In 2014 Mr. Marshall sent emails to 133 counties and independent cities asking the jury pool question. Only 37 responded. Ten responded with descriptions of how they select juries but provided no noncitizen numbers. Fifteen, including the city of Richmond, said no potential juror was disqualified because of noncitizenship.

Fairfax County reported 167 noncitizen jury disqualifications in 2014, Norfolk 1,223.

Loudoun County’s response was striking, as it provided the highest numbers not just for one year but for six years.

About 12.5 percent of the fast-growing, high-income county’s 373,000 residents are Latino.

The Public Interest Legal Foundation met opposition from local elections officials who it says have been cheered on by Edgardo Cortes, the top state elections official who runs the Virginia Department of Elections, or ELECT.

Mr. Cortes had been a veteran of organizing voter registration drives to sign up Latinos before he was appointed elections commissioner by Mr. McAuliffe.

“According to numerous county election officials, Commissioner Cortes had issued guidance to them, instructing them not to respond to our requests for records pertaining to non-citizen voters,” the foundation said in its October 2016 report. “Some election officials kindly provided us the original communications from Cortes.”

Mr. Cortes wrote to local governments that “you may not provide the information regarding reason for cancellation for non-citizen status” because cross-checking is done by comparing voters to their confidential DMV records. DMV asks applicants if they are U.S. citizens.

Mr. Cortes also wrote: “The department will not provide voting history as this is not covered under [National Voter Registration Act]. Only the Department of Elections may provide this information to authorized individuals and entries.”

The foundation’s report said: “This is what a cover-up of alien voting looks like. State election officials are preventing public access not only to records showing the number of non-citizens who have successfully registered to vote, but also records showing how many of them voted prior to being removed from the registration rolls. Federal law says it should be easy, but Virginia has a great deal to hide when it comes to alien registration and voting.”

Mr. Cortes rebutted this allegation in an email to The Washington Times.

“The claims being made by the Public Interest Legal Foundation (PILF) are false,” he said. “The Department of Elections provided the data the organization was seeking related to possible non-citizens being registered to vote.”

Mr. Cortes said that when PILF began sending requests for information to local voter registrars, his department offered to create a “customized report” that contained information on potential noncitizens and how registrars dealt with them. The report was quickly turned over on Sept. 30.

“The Department responded in a timely manner to the requests for data related to this issue,” he said.

A process under scrutiny

J. Christian Adams is PILF’s president and general counsel. He worked in the George W. Bush Justice Department and accused the Barack Obama administration of bias in the Civil Rights Division.

“Cortes would have you believe they offered to give us what we asked for,” Mr. Adams said. “They didn’t. Their ‘customized’ report would have hidden the precise number of cancellations for citizenship problems. They also told local election officials to press a bogus legal defense — that federal highway laws didn’t allow disclosure.”

Mr. Cortes also told The Times that his department releases an annual report on how his office and local registrars work together to ensure rosters are accurate. The process involves a series of cross-checks with other states to weed out double registrations and other violations.

“Virginia is a national leader in comparing our voter registration data against other states,” the department’s report says.

On noncitizens, Mr. Cortes’ department compares DMV records for each alien and shares the data with local governments.

Beyond that, the department’s report indicates the process is hindered by high costs and a heavy workload.

“ELECT relies heavily on local electoral boards, general registrars, and their staff to ensure an accurate list,” the report says. “More and more is being asked of our local voter registration offices to accurately and timely process data reviewed and analyzed by ELECT and loaded into the database.”

Virginia law authorizes the elections department to tap into a Department of Homeland Security alien database. But the data do not include illegal immigrants.

“No benefit or potential use is actually possible for voter registration purposes,” the report says.

Anti-voter fraud forces do not see an ally in Mr. McAuliffe. He has vetoed several bills aimed at scrutinizing rosters, including a measure this week. It would have directed registrars to audit voter lists for districts where the number of voters exceeds the U.S. Census tally for voting-age residents.

The bill was backed by Republican state Sen. Mark D. Obershain, who ran for attorney general in 2013 and lost by 165 votes out of just over 2.2 million cast.

In 2015 McAuliffe allies on the three-member state Board of Elections planned to change the voter registration form that would, in effect, make it easier for noncitizens to vote. They wanted to make optional the question, “Are you a citizen of the United States of America?” Fierce opposition nixed the idea.

Mr. Cortes previously worked at the Advancement Project, partially funded by liberal billionaire George Soros. It opposes voter ID laws, including any requirement that a voter applicant provide proof of citizenship.

A study by professors at Old Dominion University found that 6.4 percent of noncitizens voted illegally in the 2008 presidential election, based on polling and other data. The overall number could be as high as 2 million.

A separate poll of Latino U.S. residents in 2013 found that 13 percent of noncitizens said they were registered to vote. Compared to the U.S. Census for that year, it could be mean that 800,000 to 2.2 million were registered voters.

Said the Public Interest Legal Foundation: “Most discoveries of non-citizens on the registration rolls are accidental or chance. What this means is that the number of registered non-citizens thus far identified by this investigation is just the ‘tip of the iceberg.’ The true extent of the problem likely runs in the thousands, if not more. And it is not unique to Virginia.”

After Mr. Trump alleged that millions voted illegally on Nov. 8, Mr. Cortes told Washingtonian: “The claims of voter fraud in Virginia during the November 8 election are unfounded. Virginia’s election was well administered by our 133 professional local registrars, with help from hundreds of election officials and volunteers who worked to guarantee a good experience for eligible Virginia voters. The election was fair and all votes cast by eligible voters were accurately counted.”

• Rowan Scarborough can be reached at rscarborough@washingtontimes.com.

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