registers to vote and who is eligible to do so. Federal requirements, on
the other hand, generally have focused on specific federal interests,
such as protecting the integrity of the federal elective process and the
exercise of fundamental rights to which constitutional protection has
been expressly granted.32
Federal laws do, however, have quite a bit to say about
citizenship and voting. Specifically, in 1993 the federal role in the
election process expanded significantly with the enactment of the
NVRA. This legislation required, among other things, that forms used
to register persons to vote in federal elections clearly state “each
eligibility requirement (including citizenship)” and that persons
registering to vote in federal elections affirm that they meet “each
eligibility requirement (including citizenship).”
52 U.S.C.
§§ 20504(c)(2)(C), 20506(a)(6)(A)(i), 20508(b)(2). Nine years later,
Congress passed the Help America Vote Act of 2002, which
reemphasized these requirements in the case of voters who register to
vote via mail by requiring the states to place a citizenship question on
mailed registration forms. 52 U.S.C. § 21083(b)(4)(A)(i).
In addition to these federal requirements relating to voter
registration, registering to vote and voting by non-citizens may be
prosecuted under four separate federal criminal laws:
(a) Fraudulent registration and voting: 52 U.S.C.
§ 20511(2)
As already discussed, the NVRA enacted a criminal statute that
reaches the knowing and willful submission to election authorities of
false information that is material under state law. 52 U.S.C.
§ 20511(2). Because all states currently make citizenship a
prerequisite for voting, statements by prospective voters concerning
32
For example, the states are prohibited from depriving “citizens of the United
States” of the franchise on account of any of the following factors: race (amend.
XV), gender (amend. XIX), non-payment of poll tax (amend. XXIV), age of 18 or
older (amend. XXVI; 52 U.S.C. § 10701), residency after 30 days (52 U.S.C.
§ 10502), or overseas residence (52 U.S.C. § 20302).
61