DOJ prosecution of non-citizen voters unveiled on eve of Trump’s Winston-Salem campaign stop

The presidential election looms roughly two months out, and President Trump, who has made wide-ranging and unsubstantiated assertions about widespread election fraud a hallmark of his candidacy, plans to hold a campaign rally at Smith-Reynolds Airport in Winston-Salem on Tuesday.

Six days before that visit, US Attorney Matthew GT Martin announced charges against 19 North Carolina residents for voting as non-citizens, based on a years-long investigation by the Homeland Security Investigations Office in Raleigh. Three of the defendants — a 65-year-old woman from Mexico, a 52-year-old man from Costa Rica and a 57-year-old man from Tobago — live in Winston-Salem.

The 19 defendants, from 16 countries spanning the world from Latin America to Asia and residing in dozens of counties across the North Carolina central Piedmont, are all accused of voting in the 2016 election as non-citizens, which carries a maximum sentence of up to a year in prison. Others are also charged with making false statements on voter registration applications and making false statements about their immigration status.

Helen Parsonage, an immigration lawyer in Winston-Salem who represents three of the defendants, said she takes issue with the US Justice Department’s use of the term “voter fraud” in a Sept. 2 press release announcing the arrests for charges that mainly include “voting by non-citizen.”

“How many are people who are saying, ‘Oh, I know I’m not supposed to vote, but I’m going to vote anyway because I want to commit voter fraud’? Very few, if any,” Parsonage said, noting that she can’t comment on any individual cases. “I would say the vast majority are people who have been inadvertently registered at the DMV or at a street fair. They have not been intentionally committing fraud, just relying on someone telling them they can vote. To me, that’s sad.”

One of Parsonage’s clients is a 75-year-old Greensboro resident from Mexico with two children and grandchildren who are US citizens. She also represents a 54-year-old woman from China who lives in Rowan County, and a 48-year-old man from El Salvador who lives in Cabarrus County. The average age of the 19 defendants is 57.

In a separate press release publicizing the arrests, ICE, or Immigration and Customs Enforcement, noted that the recent charges stem from the same Homeland Security Investigations probe that yielded 19 previous indictments in the Eastern District of North Carolina in August 2018.

Alessandro Cannizzaro, one of the defendants from the previous round of indictments, told a federal judge that he came to the United States legally from Italy in 1985, and married his wife of 20 years and raised two children, according to a transcript.

“I applied for my citizenship in 2003,” Cannizzaro told US District Court Judge Terrence Boyle. “I studied really hard to pass and a second time trial I passed and I was told that I had to come back because the rooms were full; they couldn’t swear me in.”

Cannizzaro said he called to find out when he could take the oath of citizenship, but never received a notification.

He voted in the 2016 election in Wake County.

“When my family went to vote, I joined them to vote and I never checked the status of me if I was okay to vote,” Cannizzaro told the judge. “I’m here today to take full responsibility, and I’m deeply sorry.”

Judge Boyle described Cannizzaro’s immigration status as “substantial compliance” during the sentencing hearing.

“I mean, he didn’t take the oath, but he’s probably unique… in the fact that he years ago pursued naturalization and apparently satisfied the prerequisites for naturalization other than the administration of the oath, which would be materially different from somebody who just lied categorically about it,” Boyle said.

Boyle sentenced Cannizzaro, who had no criminal record, to three years probation, and ordered him to pay $210 in combined fines and assessments.

The NC Board of Elections issued a public audit of the 2016 general election in April 2017 that found hundreds of cases of voting by suspected active felons, dozens of non-citizens voting and 24 substantiated case of double voting. Noting that 4.8 million North Carolina voters participated in the 2016 general election, the report concluded: “Even assuming all ineligible ballots identified in this report were cast for the prevailing candidate, no races — statewide or local — would have had a different outcome than the one already certified by the state.”

The NC Board of Elections cross-referenced the names of people who participated in the 2016 election with a federal Homeland Security database accessed through the NC Division of Motor Vehicles. The report noted that 34 voters who were flagged in the audit “subsequently provided proof of citizenship, highlighting the fact that data matches alone are not sufficient to verify citizenship or to take action against the voters without follow-up investigations.”

After his 2017 inauguration, President Trump claimed without evidence that he lost the popular vote in the 2016 election because of illegal votes cast by undocumented immigrants.

Sensitivity around election-related prosecutions

Jeff Loperfido, the senior counsel for voting rights at the Southern Coalition for Social Justice in Durham, said the recent arrests for voting by non-citizens send a troubling message.

“This continues a disturbing trend by the US Department of Justice announcing voting-related indictments in the lead-up to federal elections,” Loperfido said in a statement provided to Triad City Beat. “Most of these cases were likely identified in the April 21, 2017 post-election audit by the State Board of Elections, which found a miniscule number of suspected cases of ineligible voters in the nearly 4.8 million cast, and acknowledged that many of them were due to mistake or a misunderstanding of the law.

“We are concerned about the impact that the announcement will have on eligible voters who fear that they will be scrutinized by law enforcement if they exercise their fundamental right to vote in this upcoming election,” Loperfido continued.

Election-related prosecutions that take place around the time of an election has long been acknowledged by Justice Department officials as a sensitive matter.

Attorney General Michael Mukasey, who served under Republican President George W. Bush, issued a memo in March 2008 headed “Election Year Sensitivities” that served as a template for subsequent guidances released by his two Democratic successors — Eric Holder in 2012 and Loretta Lynch in 2016.

“The Department of Justice has a strong interest in the prosecution of election fraud and other election-related crimes, such as those involving federal and state campaign finance laws, federal patronage laws, and corruption of the election process,” Mukasey wrote. “As department employees, however, we must be particularly sensitive to safeguarding the department’s reputation for fairness, neutrality and nonpartisanship.”

Mukasey also admonished: “Law enforcement officers and prosecutors may never select the timing of investigative steps or criminal charges for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.”

Lynne Klauer, the public affairs officer for the US Attorney’s Office in the Middle District of North Carolina, said that’s not what happened in the case of the charges announced on Sept. 2.

“We charged them when the investigations were complete and we were able to bring charges,” she told TCB. “There was no purposeful delay of bringing the charges.”

In a memo issued in February to all US attorneys providing guidance for election-related investigations, Attorney General William Barr specifically cited the “Election Year Sensitivities” memos issued by his predecessors in a footnote.

Barr’s memo borrows from Mukasey’s language. Barr echoed Mukasey’s language in saying that the Justice Department “has a strong interest in the prosecution of election-related crimes, including those involving corruption of the election process.” But in the following sentence, Barr dropped the language about the appearance of impropriety, substituting “we must investigate and prosecute those matters with sensitivity and care to ensure that the department’s actions do not unnecessarily advantage or disadvantage any candidate or political party” in place of “we must be particularly sensitive to safeguarding the department’s reputation for fairness, neutrality and nonpartisanship.”

There is evidence to suggest that Martin, as the US attorney for the Middle District of North Carolina, is taking an unusually direct role in the recently announced prosecutions in North Carolina. Scott Coalter, a Greensboro lawyer who represents one of the Winston-Salem defendants, told the Associated Press it’s “rare to have the US attorney for the Middle District handling misdemeanor cases.”

The Sept. 2 announcement about the prosecution of non-citizen voters falls just outside of an informal guideline known among Justice Department insiders as the “60-Day Rule.”

An OIG report paraphrased former US Attorney Preet Bharara as saying “that the department’s most explicit policy is about crimes that affect the integrity of the election, such as voter fraud, but that there is generalized, unwritten guidance that prosecutors do not indict political candidates or use overt investigative methods in the weeks before an election.”

A 2018 review of FBI and Justice Department actions in the runup to the 2016 election by the Office of the Inspector General paraphrased former US Attorney Preet Bharara as saying “that the department’s most explicit policy is about crimes that affect the integrity of the election, such as voter fraud, but that there is generalized, unwritten guidance that prosecutors do not indict political candidates or use overt investigative methods in the weeks before an election.”

Klauer referred questions about the “60-Day Rule” and Barr’s amendment to longstanding guidance on election-related cases to the department’s Public Integrity Section in Washington, which did not respond prior to publication of this story.

Klauer dismissed the concern raised by Loperfido, the Southern Coalition for Social Justice lawyer, that the recently announced prosecutions will potentially discourage eligible voters from participating in the upcoming election.

“The folks who were charged were noncitizens who were not eligible to vote,” Klauer said. “If somebody thinks that’s going to have an impact and suppress voting by people who are eligible to vote, that’s their opinion, but I don’t know what the basis of that would be.”

Parsonage, the lawyer who represents three of the defendants, said the prosecutions highlight the need to train poll workers, Division of Motor Vehicles employees and people running voter-registration drives. The problem lies with the fact that most people who are not immigrants themselves don’t understand the distinction between holding a green card and being a citizen, she said.

“I do know somebody will show a voter registration person their green card and say, ‘I don’t know if I can vote. I’ve only got a green card,’” Parsonage said. “And because of the training gap, they’re told, ‘Oh yeah, you can.’ This is something immigration attorneys have been talking about for years.”

The 2017 audit by the NC Board of Elections underscores Parsonage’s point about how non-citizens can inadvertently break the law by voting.

“A number of non-citizens said they were not aware that they were prohibited from voting,” the report said. “Interviews and evidence show that some non-citizens were misinformed about the law by individuals conducting voter registration drives or in at least one documented case, by a local precinct official. One registrant in her 70s has lived in the United States for more than 50 years and believed that she was a citizen because she had been married to a citizen.”

Considering the lack of understanding about eligibility requirements, Parsonage said she opposes efforts to increase participation by automatically enrolling voters through the Division of Motor Vehicles.

“That is very worrying to me,” she said. “Because the only person who bears of the brunt of this is the non-citizen. They’re very excited about their adopted country, and when someone tells them, ‘You’re allowed to vote,’ they’re thrilled. Some of these folks are older and they’ve been here a long time. It breaks my heart, to be honest.”