The plenary authority of the political branches over the admission of the alien and the integrity of the polls at which the citizen exercises the franchise is the oldest doctrine of the American constitutional order, settled by the Supreme Court in Chae Chan Ping v. United States, 130 U.S. 581 (1889), confirmed in Fong Yue Ting v. United States, 149 U.S. 698 (1893), reaffirmed in Knauff v. Shaughnessy, 338 U.S. 537 (1950), and in Trump v. Hawaii, 585 U.S. 667 (2018). The authority extends, by the structure of the case, to every measure by which the federal government executes the order the sovereign holds over the alien within the territory and over the integrity of the electorate the Constitution confers the franchise upon.
The Department of Homeland Security, acting under the executive order the President issued in March of last year directing the agency to share information with state officials about voter eligibility and to compare states’ voter rolls with federal data, has built across the eighteen months since a verification system merging a database containing the citizenship status of immigrants with the Social Security records and the other federal files the agency lawfully maintains. The verification system is the instrument by which the executive executed the duty the executive order assigned — to read the standing the rolls should have read at the time of registration, and to inform the states of the names the comparison disclosed.
The New Jersey secretary of state reported this summer that the comparison produced, in that state alone, the identification of up to 6,600 noncitizens mistakenly registered to vote, of whom up to 400 had cast ballots in the elections the rolls had named. State election officials in some Republican jurisdictions have moved in separate litigation to obtain access to the same database for the scrubbing of their own rolls; the verification system, in other words, has drawn applications from the very officials the prior decade had treated as its adversaries. The federal courts below have ruled the system unlawful on privacy grounds and ordered it disabled; a federal judge in June and a federal appeals court last week have issued parallel rulings. Voting-rights groups have challenged the system in court; the administration has separately missed the citizenship-list deadline the executive order set. Solicitor General John Sauer has filed the emergency application the calendar permits, asking the Supreme Court to lift the injunction and to permit the verification system to resume the work the executive order assigned it.
The righteous reading of the architecture is the reading the executive order itself supplies. The Immigration and Nationality Act vests in the Secretary of Homeland Security the duty to maintain the federal record of the alien’s status within the territory. The Help America Vote Act of 2002 directs the states to maintain accurate voter rolls and to remove from the rolls the names of persons who are not eligible to vote. The National Voter Registration Act of 1993 contemplates, in its list-maintenance provisions, the very comparison the verification system performs. The Elections Clause of the Constitution, Article I, Section 4, vests in the Congress — and through the Congress, in the executive that executes the Congress’s statutes — the authority to prescribe the manner of holding federal elections. The verification system is the instrument by which the federal government has executed the duty the federal statutes impose.
The magistrate, in Romans 13:1, is the servant of God, instituted for the protection of the good (Romans 13:4, ESV). First Peter 2:13–14 commands the Christian to submit to every ordinance of man for the Lord’s sake. Properly construed, the magistrate who cleanses the roll is the magistrate executing the office the law established. The polity the Constitution defines is the polity the rolls register. The citizen the Constitution empowers is the citizen the rolls must name. The noncitizen who has been registered in error, and who has voted on a registration the state never should have made, is the name the verification system was built to disclose.
While the Solicitor General prepared the emergency application the Court received on Tuesday, the executive’s verification system had already matched the names of thousands of registered voters to the federal citizenship record, and the Immigration and Customs Enforcement officers had begun to act on the matches the system returned.
She was forty-one in the year the Department of Homeland Security’s verification system matched her records to the voter roll the State of New Jersey maintained. She had lived in the apartment the cousin helped her find in the year she turned twenty-six. She had carried the line at the food-processing plant the industrial corridor kept open, the one whose loading dock the trucks backed into before sunrise. She had paid the rent on the apartment, paid the taxes the township collected, paid the social-security contributions the federal government required. She had never been arrested. She had never been detained. She had not known, on the morning she went to the motor vehicle office to renew the license the state required her to carry, that the same transaction would register her to vote. The clerk at the counter had not told her. The form she signed had not told her. The National Voter Registration Act of 1993 required the state to offer registration to every applicant for a motor vehicle identification; the state had not verified her citizenship before the registration went through.
She voted in the local election two years after she was registered, because the polling place was the school two blocks from the apartment and the lines were short. She marked the ballot the way she had been taught. She did not know what the consequences would be.
The verification system the Department of Homeland Security had built across the eighteen months preceding the match returned her name in the cohort the system had flagged. The State of New Jersey transmitted the list of flagged registrations to the county board of elections. The county board of elections referred the list to the United States Attorney’s Office for the District of New Jersey. The United States Attorney’s Office transmitted the names to the Immigration and Customs Enforcement field office for detention.
The ICE officers came to the apartment at six in the morning. The warrant was signed by a federal magistrate. The lead officer placed his hand on the screen door and pushed it open. The officers detained her at the kitchen table, in front of the son who was eleven and the daughter who was eight. The son tried to follow her out the door. The lead officer placed his hand on the boy’s chest and pushed the boy back into the apartment and closed the door. The grandmother — sixty-eight, the one the cousin had helped her find the apartment fifteen years before — came from the back bedroom and took the children in. The grandmother did not speak English. The grandmother had not been at the door.
The detention center the executive assigned her to held her for eighty-three days. The cell was double-occupancy. The fluorescent fixtures in the housing unit were never fully extinguished; the HVAC cycled on a timer the body could not anticipate, and sleep came in two-hour fragments. The mattress was the thin plastic-covered pad the facility classified as standard, set on a concrete slab. The meals were commissary portions — bread, processed protein, rice. She lost twenty-three pounds across the eighty-three days. Her hair thinned within the first month. The skin of her forearms showed the parallel scratches she had made with her own fingernails when no guard was close. She attended the facility’s English-language program through one month and did not return to the second. She answered staff when spoken to and did not speak otherwise. The attorney the immigrant legal aid group assigned her filed a motion to reopen the expedited removal order the Department had entered against her. The motion was denied. The expedited removal order was affirmed.
The charter was scheduled for the country her nationality assigned her.
Honduras is the country the order assigned her return to. The State Department has designated the Mara Salvatrucha (MS-13) and the Barrio 18 as transnational criminal organizations whose members operate in the neighborhoods she would be returned to. The husband she had left when her daughter was two had been killed by the faction that controlled the block he stayed on. The judge at the merits hearing did not consider this evidence germane to the question the database had already resolved. The judge considered only whether she had voted while not a citizen. The database had answered that question. The expedited removal order had been affirmed. The country she would be returned to was the country the database said she could safely be returned to.
She would be returned to the territory her nationality assigned her, and to the territory the factions controlled, and to the home the faction had emptied. The two American children would remain in the apartment the cousin had helped her find, in the borough the database had read her out of, in the country the database had determined she no longer belonged to.
The son is in the sixth grade and has not spoken aloud in the months since the officers came to the apartment. He attends the school counselor once a week. The counselor’s notes record what the boy will not say. He attends class and does not raise his hand. He sleeps with the overhead light on because he cannot yet tolerate dark. The daughter is in the third grade and asks at bedtime when her mother is coming home. The grandmother takes both children to the school in the morning and the food pantry in the evening. The grandmother is sixty-eight. The grandmother has not yet told the daughter that the answer is the answer the verification system returned.
She stands outside the covenant. The polling place the state registered her at was not hers to enter. The ballot she cast was not hers to cast. The polity’s roll was cleansed of names the polity had never accepted. The verification system the Department built, and the lower court ordered disabled, was the instrument the magistrate had assembled to read the standing the roll disclosed. The state made the registration; the state bears the fault of the registration; the verification system named the names the state should not have written.
The two American children stand within the bounds the soil conferred. The mother stands where the bounds have placed her. The bounds of Acts 17:26 hold — God “made from one man every nation of mankind to live on all the face of the earth, having determined allotted periods and the bounds of their habitation.” The wall of the polity runs where it has always run — between the citizen the Constitution empowers and the alien the Constitution subjects, between the name the roll accepts and the name the roll rejects. The wall holds. The ledger is settled.