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For months, Wisconsin Republicans have been pursuing a cache of Department of Transportation citizenship data that they say could help election officials identify and remove alleged noncitizens from the voter rolls.
Those records have been the focus of a lawsuit, a legislative hearing, and an ongoing public debate about whether noncitizen voting is a real concern in the Nov. 5 election.
Department of Transportation officials said in a mid-October court filing that the information Republicans are seeking isn’t reliable for identifying current noncitizens. Similar databases that are public in other states are often outdated and sometimes incorrectly flag eligible voters.
The department further argues in an ongoing lawsuit that releasing it could harm thousands of lawful voters, and that the other side is acting solely on speculation.
Those advocating for the data’s release say they have a right to know how many noncitizens could vote in Wisconsin elections, and that until they see the records, they can only speculate about what they show.
The fight over the data highlights the growing attention Republicans are drawing to noncitizen voting as an election administration issue, an effort that experts say could be laying the groundwork for post-election lawsuits if GOP presidential nominee Donald Trump loses. Noncitizen voting is exceedingly rare, but Republicans in the run-up to the 2024 presidential election have seized on the notion that noncitizens are likely to vote en masse for Democrats unless election officials clean up their voter rolls.
Lawmaker makes it his mission to find noncitizen data
As part of this effort, Republican lawmakers in Wisconsin zeroed in on the Department of Transportation records showing citizenship information for people with state IDs and driver’s licenses. By checking those records against the state’s voter registration database, they said, they could figure out how many noncitizens may be registered to vote.
Noncitizens are eligible to have normal state IDs and licenses in Wisconsin. There are currently about 135,000 non-expired IDs and driver’s licenses issued to people who were noncitizens at the time they applied, the Department of Transportation said in a court filing.
At a public hearing in May, Rep. Scott Krug, a Republican who chairs the Assembly Election Committee, said he would make it his mission this past summer to make the transportation department’s citizenship information available to the election commission.
“I think this is the most important thing that we can get done before September, when people really start thinking about the election,” he said at the time. “We’re going to go through holy hell in November and December and January all over again if we do not put every single data point that we have and every effort we have into making sure that we’re sharing all this data, free and clear, between the agencies and that there’s oversight on it.”
At that hearing, Kristina Boardman, then the deputy secretary of transportation, said her department doesn’t have the legal authority to share its noncitizen data with the election commission.
This month, Krug and Sen. Dan Knodl, the Republican chair of the Senate Election Committee, sent a letter to Gov. Tony Evers, asking him to direct the transportation department to release its list of noncitizens with state IDs to their respective committees.
Evers, a Democrat, vetoed legislation in December 2023 that would have required driver’s licenses and IDs issued to noncitizens to explicitly indicate that the cards aren’t valid for voting purposes. He said at the time that he didn’t oppose data sharing between the state agencies.
But Evers told Krug and Knodl in his response Oct. 14 that for now, such a data transfer is not permitted because of Wisconsin’s role in the Electronic Registration Information Center, a multistate partnership that checks for duplicate voter registrations. The election commission’s current agreement with ERIC, he said, prohibits member states from transmitting transportation department records relating to citizenship.
The governor also pointed to an ongoing lawsuit that, if the case goes the plaintiffs’ way, could force the transportation department to share its citizenship data with the election commission. That lawsuit, filed by conservatives in August, alleges that state law requires the election commission to merge the Department of Transportation’s citizenship data with its voter rolls.
Transportation department says data is outdated, and could be inaccurate
The plaintiffs in the case, Ardis Cerny and Annette Kuglitsch — who are represented by Kevin Scott and Michael Dean, two attorneys who frequently sue election officials — are seeking an order to require people whose citizenship can’t be verified once the databases are merged to prove their citizenship or have their voter registration revoked.
They’re also asking the judge to impose a requirement that everybody seeking to register to vote provide proof of citizenship.
In that Waukesha County Circuit Court case, the transportation department is opposing disclosing the data. In response to the lawsuit, the department asserted — apparently for the first time publicly — that the citizenship information in its records wasn’t accurate for identifying current noncitizens.
When a Wisconsin resident applies for a driver’s license or state ID, the department records the applicant’s citizenship status, based on their proof of citizenship or legal residence. Those cards typically remain valid for eight years, and state law doesn’t require applicants to update their citizenship status with the department if it changes during that time.
“Because there is no need to obtain a driver license or ID until the current product expires, the [citizenship] notation on record for a driver license or ID holder may be anywhere from several to eight years stale,” Tommy Winkler Jr., administrator of the Department of Transportation’s Division of Motor Vehicles, said in a court declaration. “This fact renders any non-citizen data collected by DMV subject to significant inaccuracy.”
Every year, thousands of Wisconsin residents become naturalized U.S. citizens, and those numbers increase ahead of big elections, Lynn Lodahl, an assistant attorney general at the Wisconsin Department of Justice who’s representing the election commission and transportation department, said in a mid-October hearing.
Krug told Votebeat that he was surprised by the department citing the shortcomings of its records as a reason not to share them.
“Their usual comeback from our multiple letters and from our committee hearing was that they’re not allowed to share that information with us or with WEC,” Krug told Votebeat. “It’s never been that, ‘We’re not reliable.’”
Pitfalls in efforts to clean voter rolls
In other states, efforts to flag noncitizens and remove them from the rolls have led to problems, including mislabeling and the removal of U.S. citizens from the voter rolls.
In Texas, Tennessee, Virginia and Alabama, for example, U.S. citizens have had their voter registrations revoked or questioned after they were incorrectly flagged as noncitizens. In some Texas counties, clerical errors at the local level resulted in some voters being incorrectly labeled as noncitizens.
On Oct. 16, a federal judge halted an Alabama program that its governor said would remove noncitizens registered to vote, after the U.S. Department of Justice sued because federal law bans mass voter roll purges within 90 days of the election. The program incorrectly flagged hundreds of legal voters, the Associated Press reported.
Krug said he’s not surprised that there are inaccuracies and outdated information in the Wisconsin data, given changes in people’s citizenship status. But he wants access to it anyway, he said, so that election officials could have a list of people labeled by the transportation department as noncitizens, and proceed to challenge any of them who seek to cast ballots. That process would likely require people labeled noncitizens to show proof of their citizenship, Krug said.
“I know the comeback is, ‘Some people just don’t have their documents that are citizens,’” Krug said. “And I’m like, in this day and age, it’s hard not to.”
In Wisconsin, election officials and even other voters can challenge someone’s eligibility to vote based on knowledge about their age, residency, felony status, and citizenship, among other things. But a challenge “based on an individual’s ethnicity, accent, or inability to speak English is unacceptable,” an election commission manual says.
Voters who have been challenged on a permitted basis can proceed to cast ballots after swearing under oath that they’re eligible. But their ballots would be labeled as challenged, and the local canvassing board can disqualify those ballots if its members can prove that the people who cast them are not eligible voters. Additionally, state law allows clerks challenging a voter’s registration form to ask that person to provide proof of naturalization.
Challenging voters based on the Department of Transportation’s outdated information could slow down and frustrate the election process, said Gilda Daniels, a law professor at the University of Baltimore who focuses on voting rights.
That tactic, she said, “hurts democracy and certainly makes the process more difficult for a lot of people,” adding that most people don’t carry their proof of citizenship and it may take some people days to find it.
“I think that’s part of the strategy, to frustrate voters so much that they decide they just won’t bother,” she said.
Gilda also questioned the motives of people focusing extensively on the issue of noncitizen voting.
“I don’t know if this is more messaging to create fear and distrust in the process, or if they really think that there are noncitizens voting,” she said. “Noncitizens are not voting, certainly in the numbers that they’re trying to suggest or at all.”
Caroline Fochs, the clerk in Mequon, a city of 25,000 in southeast Wisconsin, said she has been accessing the Department of Transportation’s records for years to screen new registrants for their citizenship status. She acknowledged its shortcomings but said she has also turned up instances of noncitizens seeking to vote.
If an applicant for a voter registration is flagged as a noncitizen on the department’s Public Abstract Request System, she sends their information to an agent in the U.S. Department of Homeland Security, then to local police if the agency confirms the people flagged are indeed noncitizens. About 20% of the people whose names she sends over are confirmed to be noncitizens, she said.
Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Alexander at ashur@votebeat.org.
