Last May, after living in the U.S. with a green card for 20 years, Pearson took the oath and became a citizen. He registered to vote at the naturalization ceremony, but
like some other new citizens, he received a letter challenging his registration.
But Pearson argues according to state law, he shouldn’t have.
The three step process
Ohio Revised Code 3503.152 requires the Secretary of State to audit the statewide voter registration database annually, but it directs the Secretary to look for a very explicit kind of individual. The statute orders him to find “any person who does all of the following,” and crucially “in the following order.”
It then lays out three elements: the person has to submit documentation to the BMV confirming they’re not a citizen; they have to take a voting action like registering or casting a ballot; and then they have to once again submit documentation to the BMV confirming their lack of citizenship. In this construction, those three events must play out sequentially — A then B then C. Checking the boxes in some other order isn’t enough. The statute then directs the secretary to send a letter, like the one Pearson received, to any person whose registration meets the three requirements, asking them to confirm their citizenship or cancel their registration.
“I got my driver’s license September 2021,” Pearson described. “I got naturalized May of 2023. I’ve not been to the BMV since I got this driver’s license.”
His only interaction with the BMV since naturalization was going online earlier this year to update his address after a move. But he was quick to add, “it doesn’t have any questions about citizenship or citizen status, or ‘has your other information changed since we last saw you?’” He looked elsewhere on the BMV site for a way to submit citizenship documentation, but he came up empty.
Pearson’s parents and his sister have also recently naturalized, so he did an informal poll. His mom’s license was expiring so she went into the BMV with her naturalization paperwork — no letter. His dad and his sister, though, haven’t been in. They both got the same letter Pearson did.
“It seems like they’re skipping that third step,” he said, “sending it to anybody who has not certified citizen status as that third step, instead of anyone who has certified non-citizen status.”
How the secretary is interpreting the statute isn’t necessarily helped by
his directive explaining the audit. Under the statute, a voting action has to be sandwiched between two instances of confirming a person’s lack of citizenship. But LaRose seemingly inverts that model, identifying people who “have submitted documentation indicating that they are a non-citizen to the BMV on at least two separate occasions in between registering to vote, updating their voter registration or voting.”
Presented with the directive, Pearson was puzzled.
“Yeah, that’s difficult to even interpret,” he said. “I mean, that’s — does that mean I would have had to vote twice? And go to the BMV in between two separate instances of voting?”
Ohio Sec. of State LaRose’s noncitizen voter registration audit sweeps in naturalized citizens
The leap from statute to directive
Reading through the Ohio Revised Code, Case Western Reserve University Law Professor Atiba Ellis couldn’t help looking for an alternative interpretation. Was there an error? Shoddy drafting? Because why on earth, he wondered, would a person clear that third bar, and submit documentation proving they broke the law by registering to vote?
“I don’t want to be quoted as saying the word stupid, but the research suggests that most people are not stupid enough to openly and obviously commit that kind of fraud,” he said, referring to the exceptional rarity of voter fraud.
Still, with the text in front of him, he was unequivocal.
“I mean, the text on its face — yeah, there’s no wiggle room in ‘any person who does all of the following in the following order,’ and then there is a one, a two and a three,” he said.
Like Pearson, he was left scratching his head at the Secretary’s version in the directive.
“It does seem to meet the different elements of the statute,” he acknowledged. “There are two notices that have to be sent, there is documentation that is submitted, and there’s a voting action.”
“But by changing the order of those things,” he continued, “which this text would seem to suggest, I would have to question whether the Secretary of State is exceeding the authority granted to him by the legislature.”
Ohio Secretary of State Frank LaRose talks to reporters. (Photo by Susan Tebben, Ohio Capital Journal.)
From one directive to the next
Given the timing of Pearson’s correspondence, it seems likely his case was flagged as part of LaRose’s
Directive 2024-08, which went out in May of this year. Since then, the Secretary has issued another directive aimed at alleged noncitizen registrations. But this time he offers a brand-new process without citing specific authority for the audit.
In
Directive 2024-16, LaRose orders county boards to remove voters who have notified the BMV they aren’t a citizen, failed to respond to a letter from the Secretary, and had their status verified through the federal SAVE database.
From the outside looking in, that might seem like a reasonable process. An individual indicated they couldn’t register, the Secretary tried to get in touch, and then double checked through federal records. But voting rights advocates have
long worried about using the federal database for voter verification.
And more to the point LaRose is on less certain legal footing. Instead of looking to a statue explicitly directing him to carry out an audit, he cites generalities. LaRose points to a 2022 constitutional amendment “overwhelmingly passed” by Ohio voters stating only U.S. citizens can vote. He adds that state and federal law generally require accurate registration records. And in LaRose’s rendering a data maintenance bill requiring boards “make a reasonable effort” to remove ineligible voters, instead “clarified” that they are “required to remove” them.
“It seems like this is the Secretary doing this ‘sua sponte,’ right?” Ellis said. “On his own initiative rather than by statutory command.”
“It seems strange,” he added, “that the statute has a specific structure for addressing voter purges of noncitizen voters, but the Secretary is deviating and deviating more broadly based on claims of authority that appear at best ambiguous.”
Kayla Griffin from the voting rights organization All Voting is Local expressed doubts about the process LaRose laid out in the most recent directive, as well. Using the SAVE database is fine as a supplement, she argued, but it shouldn’t somehow replace the three-step process established in state law.
“So, the basic instruction that is laid out, he has to meet that,” she said. “But that does not mean that he’s prohibited from adding supplemental steps in order to cross reference or to double check.”
“However,” she went on, “he cannot remove the step that is enumerated in the law — that they have to submit to the bureau, they have to register, they have to submit again.”
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To Ellis, there’s an echo in the Secretary’s actions of the efforts in Kansas and Arizona to require voters to show proof of citizenship to register. In Kansas, the push was led by then-Secretary of State Kris Kobach, and it wound up
disenfranchising more than 30,000 eligible voters. In 2020, an appeals court affirmed a lower court ruling striking down the Kansas law.
“In a way, what the courts would not allow people like him to do directly,” Ellis said, “maybe Secretary LaRose is trying to do this indirectly through increasing audits and taking a very liberal interpretation of the very structured authorization granted by the legislature.”
Meanwhile, Arizona is a bit of a mess. After a 2013 court ruling, eligible voters were able to register without presenting citizenship documents, but they could only vote in federal elections. After a recent court stay, those federal-only voters can still register but only if they use a federal form. That will be the status quo
at least until a hearing in September — just a few weeks before a presidential election in a potential swing state.
Pearson’s status
The letter Pearson received from the Secretary describes in bold letters the discrepancy between the voter file and citizenship status he provided during his “last interaction” with the BMV. There’s no indication in the letter that the secretary’s review found evidence of Pearson providing noncitizen documentation after registering to vote.
Still, the letter does acknowledge his status may have recently changed and applauds it if that’s the case. “I want to express my congratulations,” it reads, “and thank you for your participation in our democratic process.”
But to Pearson, the letter, which mentions potential felony charges, came off as threatening — “seems extreme, right?” — and too presumptive that he had made an error.
“If English was my second language, and I received that, I feel like I would be scared,” he explained. “And if I was navigating a process that, I hadn’t lived in this country for 20 years, and hadn’t learned these things, and didn’t, frankly, teach social studies, which is pretty super-related to a lot of the process in the first place, I would be confused and intimidated and think that I’ve messed up.”
He never sent the letter back.
“If they would like to bark up trees that I’m not hiding in, that don’t exist and chase after ghosts, then they’re welcome to do that,” he said. “Because if the attorney general’s office calls and says, ‘Hey, are you a citizen?’ I’ll say, ‘Yeah, here’s my number.’”
He did, however, write a lengthy note to the email address listed on the secretary’s letter. Pearson wanted to verify the letter wasn’t some elaborate hoax, to question whether the office had actually complied with the law’s three-step process, and to criticize the lack of pre-paid postage, which Pearson views as, an admittedly small, but unavoidable poll tax.
Pearson never got a reply. The Secretary’s office didn’t respond to Ohio Capital Journal’s interview request for this story or previous reporting on this topic either.
So far, Pearson hasn’t been removed from the voting rolls, but it’s a nagging concern. He checks it regularly with an eye toward ensuring he can cast a ballot this November. Most galling for him is the sense of unfairness. Like other voters swept up in these latest audits, he emphasized that there was no indication during the naturalization process that he needed to update his citizenship with the Bureau of Motor Vehicles.
“They said you have to update your information with Social Security. I did that — like the next week,” he said.
Pearson argued he could’ve gone to the BMV, too, and he resents being treated as though he did something incorrectly, when he followed the directions he was given.
“The fact that we weren’t instructed to do that,” he said, “and now they’re turning around and kind of changing the rules up mid-game and threatening me with a felony charge because I didn’t do the thing that they didn’t tell us to do — it all just seems unethical and sketchy.”
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Stewart Rhodes (Photo by Nicholas Kamm for AFP)