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Craig A. Hayner County Clerke Shauna M. Sutton % = Deputy County Clerk “ay _ NS my aoa ea Deputy County Clerk Saratoga County Clerk's Office arabes Caryn eicaee EA) soe a eas Et ag “aif el atin a June 24, 2019 President Donald J. Trump The White House 1600 Pennsylvania Avenue, NW Washington, DC 20500 Dear President Trump: | write to you today regarding the ‘Green Light” bill recently signed into law by Governor Andrew Cuomo of New York. Respecttully, | ask that you please consider directing the Justice Department to commence an immediate review of the law and render an opinion regarding whether this legislation, including the process in which some proven identification safeguards have been removed, should be reviewed in federal court. ‘As an agent for New York State, | administer three Department of Motor Vehicle offices, which under this law would be required to issue driver's licenses to “undocuriented! individuals who are unable to prove their legal immigration status. | am aware that other states offer driver's licenses in a similar fashion, however, it is my understanding that those states issue licenses that are materially different from the licenses issued to those who can prove citizenship and to those who can prove they are in the U, lawfully. This law requires the non-compliant licenses to be “Visually identical” to federally compliant licenses and simply stamped, “not for federal purposes.” This law also restricts the Department of Motor Vehicles from disclosing information to federal law enforcement agencies. Furthermore, as the Clerk of Saratoga County, | have sworn an oath to uphold both the Constitution of the United States of America and the Constitution of the State of New York. All motor vehicle clerks also ‘swear this same oath of office. It is my opinion, that this law may bring those two oaths into conflict. Mr. President, | believe this law circumvents federal immigration laws and should be reviewed at the highest levels of government to determine unilaterally whether this legislation is indeed constitutional. As you are aware, state law cannot conflict with federal law and where conflicts may exist, federal law ‘supersedes. It is for those reasons that | am writing to you today and respectfully ask that the Justice Department review this legislation before it goes into effect on December 14, 2019. | have enclosed, for your reference, State Senate bill S.1747B and State Assembly bill A.3675B, the legislation signed by Governor Cuomo; my position statement; and two relevant news reports. Thank you for your time and attention to this matter, Sincerely, 5 Craig A. Hayner Saratoga County Clerk Craig A. Hayner County Clerk Saratoga County Clerk's Office Saratoga County Municipal Center 40 McMaster Street, Ballston Spa, NY 12020 Telephone (518) 885-2213 FAX (518) 884-4726 Shauna M. Sutton Deputy County Clerk Charles A. Foehser IT Deputy County Clerk. Position Statement on New York State Driver's License Access and Privacy Act Saratoga County Clerk, Craig A. Hayner Proudly, the New York State Association of County Clerks (NYSACC) has represented all 62 elected or appointed County Clerks across the state for over 75 years. Many County Clerks serve as county level commissioners of Motor Vehicles bureaus and work in partnership with the New York State Department of Motor Vehicles to process DMV transactions including the issuance of driver licenses. The ability of states to regulate who drives on their roadways dates back to the Model T with the 1916 Supreme Court decision regarding Frank J. Kane v. The State of New Jersey, which found the state within its right to issue registration fees." States were further supported in regulating who drives in 1989 when the Sth Circuit of the U.S. Court of Appeals, in the case of Donald S. Miller v. the California Department of Motor Vehicles, ruled that there is no “fundamental right to drive.”? And again on June 7, 2007, when New York's highest court upheld the NYS OMV's right to require social security numbers (SSN) from driver license applicants or @ letter of ineligibility from the Social Security Administration, in the case Cubas v. Martinez? By statute, the NYS DMV has required driver license applicants to supply their social security numbers since 1995.* OMV also accepts a letter of ineligibility from the Social Security Administration (SSA) along with Department of Homeland Security (DHS) documentation from anyone ineligible for a SSN. As stated in the Cubas v Martinez decision, the policy was not the result of a post-September 11 panic over immigration; the internal document adopting the policy is dated September 6, 2001. This anti-fraud policy was validated in 2002 with the DMV’s social security verification program ‘uncovering massive amounts of fraud, according to testimony by then-DMV Commissioner Martinez to the NYS Assembly Transportation Committee on August 19, 2004.° The current legislation, now signed into law, (35750 & 517478) known as the “Green Light Bil,” disregards history and case law, attempting to rewrite the law in the interest of a few at the expense of many. Provides the Option to refuse to Provide a Social Security Number: The law provides the option for Standard License applicants to refuse to provide a Social Security Number (SSN), allowing criminals to exploit the system. This reverses the State DMV's law enforcement arm's nearly two decades of work in uncovering and preventing fraud discovered using Social Security Verification. (A36758, page 3, lines 47-51 & page 4, lines 44-48) Requires a Visually Identical Design ~ The law requires that licenses issued to those here illegally be “visually identical” toa federal-purpose license. This appears to be a deliberate attempt to deceive and a violation of the federal REAL ID Kane v New Jersey, December 4, 1916, available at hitps://vw law. cornell. du/supremecourt/text/242/160 Miller v Reed, May 24, 1999, available at htiosi//caselaw.findlaw.com/s-9th-circui/1054787,tenl Cubas v Martinez, June 7, 2007, available at https://www law.cornell.edu/nyctap/i07_0082.htm + New York State DMV website, DiviV Requirements for Social Security Cards and Social Security Numbers, accessed §/23/19 ® DMV Commissioner Martinez Testimony to New York State Assembly Transportation Committee Public Hearing, August 19, 2004, ‘copy on file with author Act, which requires non-compliant cards to have a unique design or color indicator. While the bill states the Commissioner may adopt additional regulations to comply with federal law, the use of may rather than shall, provides the commissioner the option of non-compliance with federal law. (A3675B, page 5, line 34) Changes Automatic Registration to Selective Service System to Opt-In: The law changes the provision that directs the DMV to provide information to the Selective Service System (SSS) of young men who are required to be registered with Selective Service from an automatic registration to an optional registration. According to federal law, with very few ‘exceptions, all males between ages 18 and 25 must register with the SSS. This includes U.S. born and naturalized citizens, parolees, undocumented immigrants, legal permanent residents, asylum seekers, refugees, and all males with visas expired more than 30 days. These changes not only create unnecessary red tape for DMV employees, but also make it easier for people to thwart their lawful duty to register with Selective Service. (A3675B, page 5, lines 9-26) Requires Notification to Anyone whose Records are Sought ~The law requires the DMV Commissioner to notify within in three days any person whose records are sought from “any agency that primarily enforces immigration law,” informing the individual about the request and identifying the agency requesting the records. The bill also requires such agency or representative to obtain a warrant or court order to access any DMV records. This is a deliberate effort to impede federal immigration investigations and allow those under investigation to obstruct justice. (A36758, page 2, lines 41-54) Provides the Option of Implementation before it becomes Law ~ The law back dates to January 1, 2019 the proofs of identity required to be accepted to include a variety of foreign documents. It also provides for the state to amend or repeal any rule or regulation necessary for the implementation of this act before it actually becomes law. These provisions provide the unprecedented ability for the State to implement policy before it becomes law and offers no time for training for DMV clerks who will be forced to accept documentation they cannot translate or authenticate. Further, in the midst of REAL ID implementation, which is creating a great influx of customers, longer transaction times, and frustrated customers in DMV offices throughout the state, this bill would haphazardly thrust even more responsibilities and a greater customer demand on our overworked DMV clerks without providing them the respect or resources to ensure they properly implement the law. (A36758, page 3, lines 29-42 & page 6, lines 38-42) Provides an Opportunity for Voter Fraud — Newly installed Customer Facing Devices in all NYS and County DMV offices prompt customers to register to vote during any type of license or ID transaction, regardless of the customer's citizenship status or age. The customer must answer yes or no before their transaction can be competed. The State DMV has been aware of this computer issue, but to date has yet to address it, passing the issue along to the Board of Elections to determine eligibility after they receive a list from the DMV of anyone who pressed yes. Compromises the Oath of Office — The new state law to provide driver licenses to those in this country illegally circumvents federal law, unjustly putting County Clerks and DMV employees in the compromising position of violating their oath of office, which is to support and defend the Constitutions of the United States and the State of New York. Forces DMV employees and County Clerks to be Immigration Authorities ~ The U.S. Constitution grants Congress the unconditional and absolute power to regulate immigration. Further, the U.S. Supreme Court ruled in 1876 that immigration regulation was an exclusive federal responsibility. This law shifts that authority to the State of NYS DMV and forces DMV employees to become experts on identifying 2 multitude of foreign documents from around the world, placing the sole responsibility on DMV clerks to ensure people are who they claim to be and to ferret out fraudulent documents. DMV employees would have to do this in addition to the hundreds of motor vehicle transactions the offices process daily.