A protester holds a sign as members of the state Assembly speak in favor of legislation of the Green Light Bill granting undocumented Immigrant driver's licenses during a rally at the state Capitol in Albany, N.Y., on Monday. Photo: Hans Pennink/AP

The next phase of New York's legal troubles over a law that will allow undocumented individuals to obtain driver's licenses began late Monday when Rensselaer County Clerk Frank Merola filed court papers to block the law from taking effect next month.

Merola, in a motion for a preliminary injunction against the law, did not appear to be bothered by a federal judge's decision last week that dismissed a similar challenge.

"I understand that the State may intend to assert that I lack standing to challenge the Green Light Law," Merola wrote. "But I am at a loss to understand who could challenge this statute, if not me."

That same point was made by Erie County Clerk Michael Kearns on Friday after U.S. District Judge Elizabeth Wolford of the Western District of New York threw out his challenge. Wolford wrote that Kearns hadn't shown he would be harmed by the statute.

But Merola's lawsuit, brought in the Northern District before Senior U.S. District Judge Gary Sharpe, includes several arguments Kearns didn't make.

For one, Merola's attorneys claimed that undocumented immigrants would be able to register to vote in New York if his office is required to comply with the law.

"The Green Light Law intentionally opens up the ballot box to noncitizens in New York, and mandates that county clerks like Mr. Merola knowingly participate in that State-sponsored scheme," attorneys for Merola wrote.

Merola is represented by Karl Sleight of the Harris Beach law firm and Rensselaer County attorney Carl Kempf.

Steven Choi, executive director of the New York Immigration Coalition, an advocacy group that supports the law, called Merola's claims about voter fraud a "complete and despicable lie."

"The bill itself says the licenses can not be used for federal purposes, and that they can not be used to register to vote," Choi said. "That's actually written into the language of the bill."

Choi was referring to part of the law that allows licenses obtained through the Green Light Law to be distinguished from those granted by the state's regular application process. The new licenses will not meet federal standards for identification, the law says.

According to Choi, that means licenses granted through the Green Light Law won't be eligible for purposes of voter registration. State election officials will be able to determine how the license was obtained, and whether it can be used to register, Choi said.

The Green Light Law, which was approved earlier this year and goes into effect Dec. 14, will allow undocumented immigrants—and any other resident of New York—to apply for specialized driver's licenses from their local Department of Motor Vehicles offices.

Those licenses aren't the same as what's already given to current applicants in New York, and couldn't be used to board a plane. The document is only intended to allow individuals to legally drive in New York.

Merola wrote in a separate filing that, while not intended, those licenses will allow undocumented immigrants in New York to do more than drive.

"The Green Light Law conscripts the County Clerks as participants in this state-wide scheme to dilute the votes of qualified voters, which upon information and belief infringes upon constitutional rights," Merola wrote.

His argument, and that of his attorneys, is that there's nothing in the state's current rules for registering voters that would prevent undocumented immigrants from casting a ballot.

That's because, Merola's attorneys said, anyone with a 9-digit driver's license number in New York can register to vote without proof of citizenship. New York's laws do not require proof of citizenship to either register to vote or cast a ballot during an election.

Because the Green Light Law will allow undocumented immigrants to obtain 9-digit driver's licenses, it will also give them the option to register to vote under the state's current procedures, they claimed.

Merola argued that he, and other county clerks in New York, would be powerless to prevent undocumented individuals from registering to vote. They're only responsible for accepting voter registrations and transmitting them to an election commissioner, he said.

The Green Light Law also prohibits county clerks from inquiring about the citizenship of individuals applying for a driver's license in New York.

Merola wrote that, without a way to prevent undocumented immigrants from registering to vote, he would be at risk of federal prosecution.

"Allowing illegal aliens to register to vote not only would violate my oath of office to support the New York State Constitution (which allows only citizens to vote), but also would put me at risk of federal criminal prosecution for voter fraud," Merola wrote.

Choi rebuked that argument, saying that state election officials will act as gatekeepers if individuals use the new licenses to register to vote. Their license number will correspond to how it was obtained, he said, which will prevent them from registering.

"The Board of Elections is specifically trained to reject that, first of all, and second of all, there's never been a single case where a Green Card holder or anybody else who's not eligible to vote has tried to use a license to do that," Choi said.

Choi also noted that immigrants would be dissuaded from trying to register to vote, anyway, because they could face voter fraud charges. That could lead to their deportation, he said.

Merola's attorneys also that argued he could  be charged by federal prosecutors if he complied with other provisions of the law as well.

Chief among them, they wrote, is a section that requires individuals to be notified if federal immigration authorities contact county clerks for their identifying information. The law also generally prevents information on applicants from being shared with those authorities.

"Mr. Merola is required to warn individuals immediately after receiving any inquiry about them from federal immigration authorities so that those individuals may avoid detection," they wrote.

That would contradict a section of federal law that criminalizes actions that could be seen as "harboring, encouraging, and inducing" undocumented individuals, they claimed.

That section of federal law is largely what Kearns used to challenge the statute. Kearns argued he would be helping undocumented immigrants remain in the country if his office granted them driver's licenses. That would leave him open to federal charges, he said.

At the same time, Merola and Kearns have said if they don't comply with the law and offer licenses to undocumented immigrants, they could be removed from office. Gov. Andrew Cuomo has exclusive power to remove county clerks from office.

Wolford wrote in her decision last week that there was no evidence he would face federal criminal charges by allowing his office to comply with the law. She also noted that officials in other states with similar laws haven't been prosecuted.

"While this fact is not alone dispositive, it supports the conclusion that plaintiff's claimed fear of prosecution is illusory and he has failed to plausibly allege standing," Wolford wrote.

New York Attorney General Letitia James defended the law in a statement Tuesday and said her office would be moving to dismiss Merola's lawsuit.

"The Green Light law aims to make our roads safer and our economy stronger," James said. "As the state's attorney and chief law enforcement officer, I will vigorously defend this law, and am calling on the court to dismiss these meritless claims."

Attorneys for the state are scheduled to file their response to Merola's motion, and their own papers to dismiss the lawsuit, later this month.

READ MORE:

Federal Judge Rejects Challenge to NY Law Allowing Driver's Licenses for Undocumented Immigrants

Judge Rejects Bid to Consolidate Lawsuits Over NY Law Allowing Undocumented Immigrants Licenses

Albany Challenge to Law Authorizing Undocumented Immigrants' Licenses Should Be Separate From Buffalo Case, Lawyers Say

Granting Licenses to Undocumented Immigrants Won't Place County Clerks at Risk, NY Lawyers Argue in Brief

NY Law Allowing Driver's Licenses for Undocumented Immigrants Sees Federal Court Challenge

NY AG Says Undocumented Drivers' License Bill Is Constitutional, Sidestepping Cuomo Request