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Asking this as a factual question. No political agenda intended.

In the current US election dispute team Trump have repeatedly made the allegation that there was mass voting by undocumented immigrants. (They use the term "illegals")

If that is true at all, would their votes actually be disqualified? Or are they lawfully entitled to vote while they are living in the USA?

Just inform me about the law, please. No arguing about whether the law as it stands it is right or wrong, or whether the claim is true or not, or whether it would change the result.

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  • I doubt there are many places where people with no legal right to be there can legally help to decide who gets to run the country (or legally do much of anything, for that matter).
    – NotThatGuy
    Dec 4 '20 at 17:29
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    @NotThatGuy California and some other states let them get driver's licenses. nolo.com/legal-encyclopedia/… (responding to "or legally do much of anything")
    – shoover
    Dec 4 '20 at 18:23
  • @NotThatGuy Germany distinguishes between "resident" and "legal resident". Being a resident, even if illegal, gives you certain rights and duties (for example the duty to pay income tax on your income, and the right and duty to send your kids to school). Obviously making yourself known to authorities can cause you trouble if you are a resident, but not a legal resident.
    – gnasher729
    Dec 7 '20 at 11:47
  • I wonder how difficult it is to vote. I would assume that if I walked into a poll station on election date and said "Here's my German passport, can I vote please?" they would just say "Sorry mate, US citizens only today." and send me home.
    – gnasher729
    Dec 7 '20 at 11:50
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18 U.S. Code § 611 is the relevant law.

(a) It shall be unlawful for any alien to vote in any election held solely or in part for the purpose of electing a candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner, unless— (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.

This is not the most straightforward of law on the books. It says "you can't vote unless..." three things. It has to be locally legal to vote for something other than a federal office, the election has to include something other than voting for federal office, and it cannot be possible to vote for a federal office at the same time. Given that, it is impossible for any alien (even documented) to vote for president. Extant alien-voting laws are no higher than municipality, most being in Maryland. Violation of the law is a crime.

Because non-citizens are not allowed to vote in state-wide elections, the theory is that they literally cannot vote, so they will not receive a ballot, which comes from the state. Here are the election laws for Maryland. There isn't a provision for "disqualifying" a vote, instead a person is prevented from voting in the first place if they are successfully challenged, because they can't prove who they are or the person they claim to be is not registered to vote (a non-citizen will never be registered with the state to vote, assuming no fraudulent documentation). Takoma Park non-citizen residents can vote in city elections and they register with the local gov't, not the state.

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  • Thank you for this helpful answer. You say: <<There isn't a provision for "disqualifying" a vote>> Just to be clear, that means the point is moot? If the claim is true and can be proved, it wouldn't alter the results?
    – Pete
    Dec 4 '20 at 10:55
  • @Pete for an explanation of why the vote totals cannot be altered, see my answer.
    – phoog
    Dec 4 '20 at 15:31
  • I do think if it were proven to be true, it's possible SCOTUS could order some remedy that isn't anticipated in the statutes; but we'd be in the land of extreme speculation. The procedure is basically, "once you're through the gate, the vote goes into a big unlabelled bin", although in some states like Washington, the ballot form has an identifier where a person's identity can be correlated. RCW Ch. 29a.04 simply says the SOS "shall make rules", and does not say "cannot include voter barcode".
    – user6726
    Dec 4 '20 at 15:35
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    By "impossible" I think you actually meant "impermissible". Just a few ways the impermissible might be possible: (a) bad registration data, for example transferring driver's license application data to the voter registration system without properly filtering out non-citizens (b) gaining physical possession of a legitimate voter's mail in ballot, (c) using the identity of a legitimate voter to vote in person. These may be improbable but they are not physically impossible.
    – Ben Voigt
    Dec 4 '20 at 16:51
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    @Ryan_L: Even one counterexample is sufficient to disprove a universal claim such as "impossible" (other forms of proof exist that don't require examples, but a false-by-counterexample proof is easy to follow)
    – Ben Voigt
    Dec 4 '20 at 20:28
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As another answer points out, no alien is permitted to vote in a federal election, whether undocumented or otherwise. There are other reasons for ineligibility, of course: people who aren't yet 18 years old are unable to vote, as are convicted felons.

As to what happens in such cases, you can look at the case of Rosa Maria Ortega, who was a lawful permanent resident of the US (that is, she a green card). She was convicted under Texas law for voting (for Republican candidates, including for the attorney general who prosecuted her). She faces loss of her permanent resident status and deportation to Mexico even though she lived in the US from infancy.

(Source: https://www.usatoday.com/story/news/2020/02/21/rosa-maria-ortega-texas-woman-sentenced-8-years-illegal-voting-paroled-and-faces-deportation/4798922002/)

There is no suggestion that this development caused the vote counts to be revised. Indeed, because of the secret ballot, having such a provision would be an invitation to further fraud. Consider the following hypothetical:

  1. In an election with two candidates, the winning candidate Alice received 200 more votes than the losing candidate Bob, but 300 votes have been cast by ineligible voters. For the sake of illustration, assume that the totals are 1200 votes for Alice and 1000 votes for Bob.

  2. The 300 ineligible voters all voted for Alice, so invalidating their votes should change the result of the election to a victory by Bob of 100 votes (that is, Bob wins with 1000 votes against Alice's 900).

  3. However, the ballots being secret, the only way know who anyone voted for is to ask. When asked, the 300 ineligible voters all say that they voted for Bob. As a result, the vote totals are revised in Alice's favor, leaving a total of 1200 votes for Alice and 700 votes for Bob, a margin of 500 for Alice.

This should explain why, given a secret ballot, not only is there no provision for disqualifying votes, but there cannot be such a provision.

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  • Thank you, that is also a helpful answer.
    – Pete
    Dec 4 '20 at 15:42
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    This "victory by Bob, that is, Alice wins" makes no sense in bullet #2. I think you have a typo there.
    – Ben Voigt
    Dec 4 '20 at 16:53
  • Not all convicted felons can't vote Dec 4 '20 at 20:28
  • It was once the case that all, or almost all, US state denied convicted felons the right to vote. Now most states do this only for a few specific crimes, notably election fraud. Dec 4 '20 at 21:21
  • The numbers in the example with Alice and Bob seem to be mixed up or incorrect in several places. Please fix or remove them. Dec 4 '20 at 21:22
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Only citizens are allowed to vote in federal elections, so undocumented immigrants are not allowed to vote. Other people (felons, etc.) may also be prohibited from voting depending on state law.

The details of what happens depend on the state, but as a general thing:

In-person voting by someone identified as being on the list of eligible voters who haven't voted already: The fact that you voted will be recorded in a separate step from you actually voting. Your actual vote doesn't have your name on it so it is not possible to discard your ballot after it is cast.

In-person voting by someone not identified as being on the list of eligible voters: Even if you aren't on the list of eligible voters you can typically still cast a provisional ballot (this is federal law for federal elections). These ballots are kept separate with the identification of the voter attached to each one and they are only counted if the voter is found to be eligible. Otherwise they are discarded.

Mail voting if the outer envelope is intact: The ballot goes in an outer envelope that has your identification on it. Ballots are discarded if the voter is discovered to be ineligible (even if the voter was eligible when they mailed the ballot--there have been cases where the voter died between mailing the ballot and it being opened). This is one reason why some states only open mail ballots starting on the day of the election.

Mail voting after the outer envelope is removed: Usually there is an inner envelope which protects the privacy of the ballot. Once the inner envelope or ballot is separated from the outer envelope then the ballot no longer has your name on it and can not be discarded.

For all voting, if it is discovered that you cast or attempted to cast a vote while ineligible then you will be in serious legal trouble. Even if it was discovered before your vote was counted and instead your ballot was discarded. Even if you didn't realize that you were ineligible. For mail votes this generally applies to the time when you mailed it.

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