Johnson's 'intuition' clashes with data on illegal voting

The GOP unveiled a bill last week to bar noncitizens from voting in federal elections — prohibiting something that’s already illegal to address a problem lawmakers can’t prove exists.

Speaker Mike Johnson (R-La.) was candid last week in telling reporters that Republicans are motivated by intuition in seeking another law that would limit voting to U.S. citizens.

“We all know, intuitively, that a lot of illegals are voting in federal elections. But it’s not been something that is easily provable. We don’t have that number. This legislation will allow us to do exactly that — it will prevent that from happening. And if someone tries to do it, it will now be unlawful within the states,” Johnson said in a Wednesday press conference on the Capitol steps.

Federal law since 1996 has banned noncitizens from voting in federal elections, and many states have passed laws that do the same for local elections.

So Johnson's speech was a jarring admission to voting rights advocates who have the data on noncitizens voting — figures that show how minimal such instances are.

“Well, the thing is, we actually do have the numbers, and we know that noncitizens don't vote illegally in detectable numbers, let alone in large numbers,” said Eliza Sweren-Becker, a senior counsel in the Voting Rights & Elections Program at the Brennan Center for Justice, pointing to a study reviewing data from 42 different jurisdictions. 

“The Brennan Center study from the 2016 general election showed an estimated 30 incidents of suspected — not confirmed — noncitizen votes out of 23.5 million, which is 0.0001 percent of the votes cast. So the Speaker's intuition is incorrect,” she told The Hill.

That’s a conclusion that’s also been reached by the libertarian Cato Institute, with one of its experts calling the claims one of the “most frequent and less serious criticisms” relating to migration.

Johnson’s appeal to gut feeling touched a raw nerve with civil rights advocates, who see illegal voting as a nonissue and a proxy to enact voter suppression against underserved communities.

“Intuition doesn't count for anything — doesn't mean a lick. And we need proof. We need specifics. And I can tell you that many of our organizations have scoured for any signs of voting that has been irregular or done by folks who are not qualified. There just hasn't been any evidence,” said Janet Murguía, president of UnidosUS, the country’s largest Latino civil rights organization.

“So he can have intuition all he wants, but that does not mean it's true. It does not mean there is evidence, and it does not mean it's factual. We need to see specifics, data to demonstrate any proof of irregularities.”

Johnson first floated the framework for the bill in an April trip to Mar-a-Lago, making the announcement alongside former President Trump shortly after Rep. Marjorie Taylor Greene (R-Ga.) threatened a vote to oust him.

“I think this is another way for him to appease the crazies on the right, because he's on the chopping block right now and he's got to do something to feed them some red bait, and we saw him do that when he stood next to Trump at Mar-a-Lago,” Congressional Hispanic Caucus Chair Nanette Díaz Barragán (D-Calif.) said.

House Democrats joined a majority of Republicans to save Johnson’s job in a floor vote just hours after he unveiled the voter fraud bill alongside numerous Trump allies including Stephen Miller, the architect of many of Trump’s immigration policies, and former acting Deputy Homeland Security Secretary Ken Cuccinelli, who helped carry them out. Cleta Mitchell, who aided in Trump’s legal efforts to challenge the 2020 election results after he lost, was also in attendance. 

The Safeguard American Voter Eligibility, or SAVE Act, would require voters to demonstrate they are citizens in order to be able to cast a ballot.

Such measures have often sparked concern among voting rights advocates who fear many citizens don't have passports or birth certificates on hand, documents that can be expensive to get and create barriers to accessing the ballot box.

Sweren-Becker said the Brennan Center has found that between 5 percent and 7 percent of Americans, adding up to millions of people, don’t have “the most common types of documents used to prove citizenship.”

It’s a barrier that has played out as states have passed their own proof of citizenship laws — many which have since been struck down in court. A Kansas law on the books for three years resulted in more than 22,000 people suspended from voter rolls after failure to submit proof of citizenship. Courts have killed that law along with similar plans in several other states, though in March a federal judge upheld an Arizona law after a multiyear effort to require proof of citizenship to vote.

“It's stupid. It's already illegal. They're trying to create a message – a lie – to the American people that undocumented people are voting. It's illegal to do that now. They don't need to do another bill. It's already illegal,” Rep. Zoe Lofgren (D-Calif.) said.

“It's just one more waste of time that the GOP is specializing in.”

Rep. Chip Roy (R-Texas), one of the chief crafters of the legislation, said Wednesday it is needed because “the most fundamental thing you can do to destroy the rule of law and to destroy our republic is to undermine faith in our elections.”

“We should have documentary proof. … We should have a system to guarantee that only citizens of the United States vote in federal elections,” he said.

But advocates have long maintained that system is already in place, and they say research from right-leaning organizations proves it.

“We've got organizations that have been, you know, sort of right-wing organizations, very conservative organizations, highly scrutinize this area of any potential for illegal voting by anyone who's not qualified, particularly undocumented, and they just can't report any great number, if at all,” Murguía said.

The Heritage Foundation maintains a database of what it calls “recent” instances of voter fraud, though some cases in the file go back to the 1980s. Under “ineligible voting,” the database reports about 50 cases of voting by noncitizens.

Among the noncitizen voting cases, many involve visa holders or legal permanent residents rather than people living in the country illegally.

Ahead of the 2014 midterm elections in Florida, then-Gov. Rick Scott (R) announced a program to purge 180,000 foreign nationals from voter rolls, but that number was first reduced to 2,600, then to 198, until 85 names were removed from the rolls and only one person was prosecuted.

Unlike other crimes where it can be difficult to sort out the culprit, voter registration and casting a ballot creates the paper trail that is itself the crime.

Noncitizens who even register to vote or take another action to falsely claim they are a citizen could face up to five years in prison, and those who cast a ballot could be incarcerated for up to one year.

Those who violate the law also face deportation and jeopardize any chances at gaining citizenship.

The man prosecuted in Florida’s voter purge, Josef Sever, was sentenced to five months in prison, a relatively short sentence handed down by the judge in consideration that Sever would almost certainly be deported.

“The consequences are so severe that really this is not something that anybody would risk,” Sweren-Becker said.

“And that intuition actually bears out in the numbers.”