LOCKPORT – Niagara County's lawsuit challenging the state law that grants undocumented immigrants the ability to obtain driver's licenses will proceed after a decision Friday in the federal courts that dismissed a similar complaint filed from Erie County.
County Attorney Claude Joerg said despite similarities between the suits, the Niagara complaint is distinct from two others filed in the the Western and Northern U.S. district courts that have challenged the Driver's License Access and Privacy Act, dubbed the "Green Light Law."
"I’m not overly concerned because our issues are significantly different," Joerg said, but noted an adverse decision is not a favorable sign when litigating a related case.
Foremost among the differences is Niagara's decision to file in state Supreme Court, which Joerg said is due in part to alleged conflicts between the law and the state constitution.
Joerg enlisted John Ciampoli, a prominent election law attorney in the state, to assist in the county's litigation. Ciampoli said the dismissal of the Erie suit related more to county officials' standing in the federal court and whether the judge had the jurisdiction to grant an injunction against the law.
Those matters would not be of issue in Niagara's venue, where the county has asked a judge to stay the law or strike it done due to conflicts with federal law, Ciampoli said.
"We have standing in State Supreme Court," he said.
But even in the appropriate venue the arguments in the suit are problematic, according to Sean Morales-Doyle, senior counsel at the Brennan Center for Justice at New York University Law School, an attorney whose expertise is focused on voting rights and elections law.
Among the claims in the Niagara lawsuit filed last month – and that make the complaint unique in Joerg and Ciampoli's description – relate to the law's alleged potential to allow for illegal voter registrations. Ciampoli said this week the law "seems to be designed to promote voter registration among non-citizens."
At a press conference announcing the county's intention to sue, Joerg expressed concern over the law's potentiality to allow immigrants living in the country illegally to cast votes. Morales-Doyle described voter fraud as a "vanishingly rare" issue that will not be affected by the new law.
"Most people are not terribly interested in committing a felony in order vote while ineligible," he said. "It’s not that it never happens, but that it happens with such a low level of frequency that it’s fair to say the protections we already have in place are doing the job and the this law does not change those protections."
Ciampoli said the rarity of fraud is due in part to a lack of resources and will to prosecute it, but Morales-Doyle said that is not the case, citing the recent work of President Donald Trump's Presidential Advisory Commission on Election Integrity, or the Voter Fraud Commission.
The coalition was formed after Trump's repeated claims that, “if you deduct the millions of people who voted illegally," he would have won the popular vote in the U.S. presidential election three years ago.
It was disbanded without evidence of widespread voter fraud, though the former Kansas governor that led the commission, present Republican U.S. Senate hopeful Kris Kobach, said there were 8,400 instances of double voting among the nearly 130 million votes cast in the 2016 election in 20 states.
"People who have made their political careers on trying to go after this issue have not unearthed any real issue," Morales-Doyle said.
The lawsuit raises several other claims related to the law's constitutionality and potential conflicts with existing federal law and puts officials, such as county clerks, in an untenable position to be violation of one or the other statutes.
The clerks and Department of Motor Vehicles is barred in the law from turning over documents for licenses obtained under the Green Light law without a specific subpoena, which would hamper Board of Elections officials from examining questionable registrations, the lawsuit said.
Morales-Doyle contended that using the law to obtain a license is not direct proof of a individual having entered the U.S. illegally and alleging such would involve making a number of assumptions about an individual based on superficial details.
The lawsuit also claims that the way the law is written allows some individuals to be subject to different rules than citizens by allowing for the use of expired documents in the license registration process. Ciampoli said that is a violation of the state constitution's "equal protection clause."
The resolution that authorized the lawsuit was approved unanimously with bipartisan support on the floor of the legislature earlier this year, but what the county is paying Ciampoli and for how long he has been retained is unclear.
Ciampoli was hired by the county attorney's office with a professional services contract, an agreement not approved in a public vote. Joerg and Ciampoli said they could not locate the agreement by Friday, about a week after the Niagara Gazette requested the document.
"I don’t know what the hell happened to it," Joerg said.