Can a Non-Citizen be a Notary?

US Permanent Resident Card green card non-citizenCan a Non-Citizen be a Notary?

The Supreme Court of the United States has ruled that a non-citizen may be a notary.  In 1984, in the case of Bernal v. Fainter, 467 U.S. 216, the Supreme Court ruled, 8 to 1, that the State of Texas cannot bar a non-citizen from applying for a commission as a notary public.

See court ruling syllabus at Bernal v. Fainter, 467 U.S. 216

United States Supreme Court SealEqual Protection Clause

The Supreme Court ruled that the Equal Protection Clause prohibits states from barring a non-citizen as a notary.  Since the authorized powers of a notary, as a public official, are essentially ministerial, without using broad discretion or judgment to serve the public, the only real requirement of a notary was to follow the notary law of the state.

The Equal Protection Clause, under the 14th Amendment to the Constitution, adopted in 1868 after the Civil War, requires each state to provide equal protection under the law to all people within its jurisdiction.  It has been used in many court decisions rejecting irrational or unnecessary discrimination against people belonging to various groups.

14th Amendment

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Ministerial Public Official

When a person requests notary services, the notary follows the notary law to determine if the statutory requirements for notarization have been met or not.  The Supreme Court found no reason that a non-citizen cannot perform ministerial acts, governed by notary law, where there is no use of broad discretion or judgment.

Discretionary Public Official

In contrast, a locality may require a police officer to be a citizen, because the police officer does have considerable broad discretion and judgment in how the law is enforced.

Texas Notary Law Struck Down

The Supreme Court struck down, as unconstitutional, the Texas law that required a notary to be a US citizen.  The court also noted that notary commissions are issued by the Texas Secretary of State, who is not required to be a citizen, despite holding the “highest appointive position” in Texas.

After the Supreme Court ruling, Arizona, Tennessee and Virginia updated their notary laws to allow citizens and non-citizen legal residents to qualify as notaries.  Some state laws may still list a requirement for a notary applicant to be a US citizen, but the citizenship requirement is no longer enforced.

Constitutional Oath of Office

Some states require a notary to take a Constitutional oath of office, pledging to defend the US Constitution and the state Constitution.

Colorado does not currently require a notary to take a Constitutional oath of office, but it was required in the past.

Colorado Notary Application Requirement

A Colorado notary applicant must make a sworn or affirmed statement, under penalty of perjury, that he/she is a US citizen or a legal permanent resident, or lawfully present in the US, pursuant to federal law.

Under Colorado notary law, CRS 12-55-104 (4), the Secretary of State is required to verify the lawful presence in the United States of each notary applicant through the verification process outlined in CRS 24-76.5-103, Verification of Lawful Presence, as follows:

(4) An agency or a political subdivision shall verify the lawful presence in the United States of each applicant eighteen years of age or older for federal public benefits or state or local public benefits by requiring the applicant to:

(a) Produce:
(I) A valid Colorado driver’s license or a Colorado identification card issued under article 2 of title 42, C.R.S., unless the applicant holds a license or card issued under part 5 of article 2 of title 42, C.R.S.; or
(II) A United States military card or a military dependent’s identification card; or
(III) A United States Coast Guard Merchant Mariner card; or
(IV) A Native American tribal document; and

(b) Execute an affidavit stating:
(I) That he or she is a United States citizen or legal permanent resident; or
(II) That he or she is otherwise lawfully present in the United States pursuant to federal law.

Image credits:
1. U.S. Permanent Resident Card, “green card”, by U.S. Citizenship and Immigration Services (USCIS) [Public domain], via Wikimedia Commons
2. Supreme Court Seal By Ipankonin (Vectorized from  SVG elements from) [Public domain], via Wikimedia Commons

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[Last-Modified Date 2017-04-01] new image

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