July 30, 2021
This past Tuesday evening, upon invitation, I spoke before the Richmond, California, City Council on a topic upon which I conducted considerable prior research: non-citizen voting in municipal elections. The experience was one of the most excruciating of my professional life. My presentation was less than 5 minutes (it begins around 3:02:30 mark), and was simple and straightforward. But the barely-veiled animosity between the mayor and the city council, vituperative manner and antics of the mayor as meeting chair, and seething resentments and anger in the public comments, left me exhausted and shaken.
The item on the agenda, L-1, was simple and straightforward: should the city council direct the city attorney to investigate whether there is a legal basis for extending municipal voting rights to non-citizens? Yet, many members of the public treated the issue as if the city council was actually finalizing such an ordinance, rather than simply initiating research on this matter. Some of the commentors in particular were not only incensed at the prospect of extending municipal voting rights to non-citizens, but seemed offended, that it violated some basic or core tenet of American democracy. Nothing could be further from the truth. Given those seemingly wide misunderstandings, I thought it might be worthwhile to briefly explain this issue and the legal context in which it arises.
To begin, it’s important to understand that voting rights are not what most Americans believe them to be. Remarkably, there is nothing in the United States Constitution that guarantees a right to vote. There are a number of provisions, however, that prevent voting rights from being abridged, once they are granted, on certain bases, such as race (the 15th Amendment), sex (19th Amendment), and age (the 26th Amendment). However, none of those provisions actually guarantee a right to vote (at least, in federal elections).
Furthermore, the relationship between citizenship and voting is more tenuous than most Americans would assume. For much of American history, citizenship was not the primary determinant of voting rights. Many citizens (women, children, freedmen, non-property holders) were routinely denied the right to vote. In our system, the primary power to enfranchise or disenfranchise voters lay at the state level. This is why states could devise all manner of nefarious measures, such as literacy tests and poll taxes (outlawed in federal elections by the 24th Amendment), to prevent even citizens from voting.
To this point, non-citizens were regularly permitted to vote in the antebellum periods and even the colonial periods. Specifically, white male non-citizens were permitted to vote in more than 22 states and territories in the 19th century. It was not until later in the 19th century and into the 20th century when waves of Eastern European migrants began coming to the United States in larger numbers that states began to tether voting rights more closely to citizenship status. Arkansas was the last to abandon non-citizen voting in 1926. These facts are well documented, despite the vociferous (yet incorrect) claims that citizenship and voting rights are synonymous.
All of this may seem strange to contemporary Americans for several reasons. Firstly, voting rights have been dramatically expanded since the framing of the Constitution. Not only have women, people of color, young adults of majority, and non-property holders been extended voting rights, but more offices are determined by direct election than was originally the case. Although the Electoral College still determines the presidential election, United States senators are now directly elected (17th Amendment) instead of elected by state legislatures. Thus, ordinary citizens play a larger role in directly selecting federal representatives, making voting more important and common.
Secondly, in our country’s original form, states were the primary unit of government, not the national or central government. In fact, the question of how or under what conditions national citizenship was acquired was a deeply debated and unresolved issue until the passage of the 14th Amendment. The prevailing theory was that state citizenship was the primary form of citizenship, and federal citizenship was derivative. The problem this created in the antebellum era was that in some states, free Black people were citizens, and if also as a consequence were national citizens, they would enjoy all of the protections of that citizenship in every other state (Article IV, sec 2).
This was obviously unacceptable to southern states (the notion that a free Black person could go into a southern state and enjoy the full rights of that state’s white citizens), and helps explain the infamous Dred Scott decision, where the Supreme Court held that persons of African descent were not – and could never become – United States citizens. The 14th Amendment reversed and clarified all of this: making national citizenship primary and state citizenship secondary, and clarifying how both are acquired. But if we were still living with the antebellum Constitution, then the presumption of the tight relationship between voting and citizenship would not be quite as strong.
That brings me to the current moment. Virtually every state has provisions that prohibit non-citizens in state elections, and many have provisions that prohibit non-citizens from voting in municipal or local elections. But not all. In some states, there is no law that prohibits non-citizens from voting in municipal elections. And where such prohibitions are absent, municipalities are well within their powers to grant or extend that privilege, as in California.
This is why there are many contemporary cases of non-citizens being allowed to vote at the local level. The most common form of this is to grant or extend voting privileges to non-citizens who have children enrolled in the local school district. Since the Supreme Court ruled in the 1980s that non-citizen children cannot be denied access to an education, it makes sense that their parents should have a say in the form of that education by being allowed to vote in school board elections. Thus, there are many cases of cities permitting this, including San Francisco, Chicago, and elsewhere.
But Takoma Park, Maryland is probably the strongest example of extending non-citizen voting rights. The city, located on the border of Maryland and the District of Columbia, has allowed non-citizens to vote in local elections since 1993. In 2013 the city rolled out another set of election reforms that enfranchised residents aged 16 and 17 as well as paroled individuals convicted of felonies.
There are undoubtedly challenges in administering these initiatives. After all, registration processes could potentially generate records that could be used by ICE to track and deport non-citizens, even in sanctuary cities. Although there is no federal law that prohibits non-citizen voting in local elections, it is conceivable that a nefarious and highly motivated administration might try to use evidence of such to disrupt a naturalization process.
But this country has a long history and ample experience with non-citizens voting. I am quite confident that methods and processes can be developed to address these issues, and others.
The larger issue – and barrier – isn’t the law; it’s the politics. Although I support the idea of permitting non-citizens to vote in local elections, I also believe that this is an issue up for democratic debate. I believe states and cities should deliberate and decide this issue for themselves, based upon the needs of their communities. This is the very essence of democracy. Conservatives often stress the importance of local control. If they were serious about that, they would support the right of localities to decide that issue for themselves, without violating any state or federal laws.
Moreover, the politics have gotten worse because of rising xenophobia. Anger at undocumented immigration is partly what got Trump elected, either because he stoked such anger or strategically leveraged it.
At the same time, electoral rights are deeply contested, and a shocking number of our fellow citizens believes that the last presidential election was stolen, due to systemic fraud. One of the conspiracy theories undergirding this nonsense is that tens of thousands, if not millions, of undocumented immigrants voted in that election. Although this theory has been thoroughly debunked, it does mean that any attempt to extend local voting rights is going to create more scrutiny, enflame more backlash, and potentially cause more states to outlaw this possibility.
These are the realities of the situation, and I don’t have simple solutions. But I do think more cities should consider whether to extend voting rights to non-citizens in local elections. My guess is that the reason more have not is because they don’t realize that they can, or perhaps are afraid of drawing attention to themselves. But if a handful of additional cities do this, then more will follow.