As we recently learned, New York Governor Andrew Cuomo signed a new bill into law allowing illegal aliens to obtain state drivers licenses, despite the measure being broadly unpopular among voters. Concerns over this measure holding the potential for voter fraud or access to public services by those not allowed to receive them were brushed off and the Democratic majority forced the measure through on party lines. But perhaps this isn’t the end of the story.

This week a county clerk from the western part of the state filed a lawsuit against the Governor, the state District Attorney and the DMV Commissioner, claiming that the new law has put him in an untenable position. And in a twist to the story, the clerk bringing the suit is a Democrat. (NY Post)

Erie County clerk Mickey Kearns has filed a lawsuit against Gov. Andrew Cuomo for approving a controversial state law granting driver’s license privileges to illegal immigrants that would force county clerks to defy federal law…

“As Clerk of the County of Erie, Mr. Kearns is required to carry our the Green Light Law. If he fails to do so he is at risk of enforcement or removal from office, or both by Governor Cuomo, Attorney General James, and/or Commissioner Schroeder,” the suit reads.

“But if Mr. Kearns carries out his duties under the Green Light Law, he faces the credible threat of criminal prosecution by federal authorities. Mr. Kearns, therefore, cannot carry out his duties under New York law without violating federal immigration law, and visa versa.”

This is an interesting approach. A challenge to the law based solely on the argument that it’s unconstitutional has been seen as problematic because you’d have to find someone who could demonstrate damages from illegal aliens being issued licenses. But that’s not the approach that Kearns is taking.

His argument is that he is placed in personal jeopardy by being one of the people who have to directly authorize the issuance of the documents. If he refuses to do so, the Governor could have him removed from office or potentially direct the DA to bring charges against him. But if he follows the new law and issues the licenses, he might be found in violation of federal law. But would he actually be in jeopardy at the federal level?

That’s a bit of a complicated question. You can read a detailed explainer on the subject here, but the answer seems to vary from state to state. Since 2001 it’s been a requirement in New York for license applicants to provide either a Social Security number or federally issued documents establishing legal presence in the United States. But that rule came from an executive order issued by then-Governor Pataki (R). The order is being overturned this year as part of this new law.

In general terms, the courts have held that the issuance of driver’s licenses is handled at the discretion of the state, and more than a dozen blue states already allow illegal aliens to obtain licenses. But the REAL ID Act of 2005 complicated the situation. It mandates that state identification that can be used for federal purposes, such as boarding a plane or applying for a passport, can only be issued to people who prove they are legal residents of the United States. To get around that, several states, including New York, have instituted multiple tiers of licenses and ID cards. Legal residents can qualify for REAL ID-compliant documents. But illegal aliens can still receive a non-compliant license or ID that provides driving privileges and is good inside the state, but not for any federal purpose.

Assuming that the clerk is only issuing non-compliant documents to illegal aliens, it sounds like he won’t actually be in danger of violating federal law. And if that’s the case, this lawsuit may unfortunately fail.