Folinskyinla

Hi:

Mrs. McDonald voted in the September 96 Hawaii primary AND the November 1996 General Election. It was the November 96 election they went after. The INS issued "Notice To Appear" made a specific allegation of a violation of a particular section of Hawaii law.

You are correct that the Federal provision is silent as to intent. This creates an ambiguity -- and this WAS briefed. As I mentioned, the Court of Appeals simply went the narrowest possible way since it was INS which had focused on the Hawaii state provision. Back in the early 70's, there was a famous deportation case involving an Englishman named John Lennon. [In fact, a documentary was made last year regarding the case -- it seems to be of interest even to people outside of immigration law]. The issue of specific intent to violate the law was one of the issues in the Lennon litigation.

The thing that is interesting in McDonald was that there was one very conservative Republican appointee on the three-judge panel. He was livid during oral argument -- he was somewhat conciliatory to the Government Counsel noting that she was a "good soldier" who had to make an argument.

mick52

...When a person does applies for Naturalization..do they actually check to see if that person had registered to vote...I mean,do they go county by county to check that information,I have done lot of research and cannot find anything anywhere that states in background check that they will check that..would appreciate your response on this topic

Folinskyinla

Hi:

It doesn't matter if they do or they do not, don't you think? Take a look at part 10, page 6 of the N-400 -- they SPECIFICALLY ask. Do note that "willful concealment" of a "material fact" is enough to get one DE-naturalized, don't even need "misrepresentation" which would be present if one checked "no" when the true answer was "yes."

BTW, it is fairly common for the "motor voter" to get people registered. I tell clients to cancel that registration, and then reveal it on the N-400. The article posted had the lady actually voting.

Folinskyinla

Hi:

I just took a look at the briefs in McDonald. I found that I had cited to a situation in a long running exclusion case in the 8th Circuit which culminated in a decision called "Mayo v Ashcroft" in 2003. This was a long standing EXCLUSION case which hit the Court of Appeals twice. The second time, the court was annoyed that the EOIR had ignored the prior decision. The "final" ruling was that the Ms. Mayo WAS to be admitted as a lawful permanent resident. However, the original version of this published case ended with an order that Ms. Mayo be immediately admitted to "citizenship." Both sides scratched their heads and said "What the f---???" Attorney General moved for clarification and an amended opinion was issued.

My point here is that even the COURT conflated LPR status with "citizenship."

Brit3964

I've always wondered why the USCIS doesn't put a simple sentence either on the GC itself or on the welcome letter "Permanent Residents are not allowed to vote in Federal elections"?

It might solve the ambiguity on weather you can or can't.

Folinskyinla

Hi:

I think the States should give out warnings. However, there is a tension between discouraging lawful voters from voting and informing aliens.

In preparing for oral argument in the McDonald case, I was curious to see if Hawaii had changed their voting material since Mrs. McDonald had voted [the voting was in 1996 and the oral argument was nine years later]. The reason I looked was that in 1996, Hawaii had separate elections for "Native Hawaiians" -- which was later ruled unconstitutional by the Supreme Court.

It turns out that the voter information was a lot more detailed in stating that non-citizens could not vote. However, it was aimed, not at "aliens" but at United States "nationals." These days, non-citizen nationality is limited to Samoans [and those from Swain's Island]. It seems that Hawaii has a large population of Samoans.

An argument we made in McDonald is that Federal law encourages lawful permanent resident aliens to become citizens and for people to vote. Mrs. McDonald took both messages to heart in her desire to become a true American -- unfortunately, she did them in the wrong order. The legislative history of both Motor Voter and IIRAIRA, there is a concern to prevent "illegal aliens" [such as "Zoe Baird's chauffeur"] from voting. Mrs. McDonald was not an "illegal alien."