Arturo Castellanos Canales
On April 12, 2024, former President Donald Trump and House Speaker Mike Johnson (R-Louisiana) announced that House Republicans would soon introduce a bill to ban noncitizens[1] from voting in federal elections.
The truth, however, is that noncitizens have been barred from voting in federal elections since 1924. In addition, in 1996, Congress made noncitizen voting in federal elections a crime punishable by fines and imprisonment. Accordingly, this explainer aims to separate myth from fact, providing an overview of existing laws impacting voting by noncitizens to understand the issue better.
The natural first place to look for voting qualifications must be the U.S. Constitution, which, notably, does not forbid noncitizens from voting. It simply sets two rules regarding voting qualifications:
- State legislatures have the authority to determine the voting qualifications of the electorate;[2] and
- The U.S. Constitution explicitly forbids state legislatures from restricting suffrage on account of religion,[3] ethnicity,[4] sex,[5] poll taxes,[6] and age.[7]
With the U.S. Constitution empowering state legislatures to determine the voting qualifications of the electorate, the historical evolution of state constitutions in defining the electorate is particularly significant. Most people will find it surprising that certain noncitizens were permitted to vote in federal, state, and local elections in 33 states between 1776 and 1924.[8] Granting the right to vote to noncitizens was a common incentive among U.S. territories and new states to attract workers and families to work and populate the lands.[9]
However, exactly one century ago, in 1924, Missouri became the last state in the country to ban noncitizen voting in federal elections after amending its state constitution to bar the practice.[10]
Yet, decades later, the U.S. Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), a sweeping federal immigration enforcement bill. While no states had permitted the practice in the previous 74 years, Section 611 of IIRAIRA went beyond the existing prohibitions to criminalize noncitizen voting in federal elections, making it a crime punishable by up to one year in prison.[11]
The law, however, explicitly left a door open for noncitizens to vote in state or local elections in accordance with state constitutions and local ordinances.[12] While no state constitutions allow noncitizens to vote in state elections, some municipalities do permit them to vote in local elections.
In 1992, the City of Takoma Park, Maryland, became the first municipality in the country to restore noncitizen voting in local elections. From a legal standpoint, Takoma Park argued that Maryland’s constitution expressly delegates municipalities the power to determine suffrage qualifications for municipal elections in their city charters.[13] In addition, from a practical perspective, Takoma Park argued that citizenship was an irrelevant suffrage qualification when voting for local officials because they deal with local responsibilities, such as parks and recreation, arts programs, public transportation, garbage collection, water, and sewage, to name just a few.
Since Takoma Park granted noncitizens the right to vote in local elections, a small handful of localities have followed its steps. Currently, eleven municipalities in Maryland[14] and Washington, D.C.[15], have opted to allow noncitizens to participate in municipal elections. In addition, at least two school districts in California[16] permit noncitizens to vote in school board elections (but not other municipal elections). In these jurisdictions, noncitizens remain ineligible to vote in federal and state elections.
Besides these handfuls of localities, dozens of cities have considered granting noncitizen voting rights for municipal elections – including Los Angeles, New York City, and Portland – but all initiatives failed at the time of the article’s publication.[17]
Conclusion
The Trump-Johnson proposal to ban noncitizen voting seeks to solve a problem that does not exist. Noncitizens have been barred from voting in federal elections in the United States for at least a century. And since 1996, noncitizen voting in federal elections has been a crime punishable with fines and imprisonment. While a handful of municipalities lawfully permit noncitizens to vote exclusively in local elections, those localities are the exception. Accordingly, introducing new legislation to ban noncitizen voting in federal elections is unnecessary.
[1] This paper defines “noncitizens” as persons lacking U.S. citizenship. This is distinct from issues relating to state residency.
[2] U.S. Constitution. Article I, Section 2, Clause 1.
[3] First Amendment to the U.S. Constitution
[4] Fifteenth Amendment to the U.S. Constitution
[5] Nineteenth Amendment to the U.S. Constitution.
[6] Twenty-Fourth Amendment to the U.S. Constitution.
[7] For those eighteen years of age and above.Twenty-Sixth Amendment to the U.S. Constitution.
[8] Georgia (1777-1789 & 1868-1877); Indiana (1851-1921); Illinois (1848-1870); Missouri (1865-1924); Alabama (1867-1901); Arkansas (1874-1920); Texas (1876-1921); Florida (1868-1894); Wisconsin (1848-1912); Minnesota (1857-1896); Oregon (1859-1914); Kansas (1861-1918); Nebraska (1867-1920); Colorado (1876-1902); Montana (1889-1894); North Dakota (1889-2018)[8]; South Dakota (1889-1918); New Hampshire (1776); South Carolina (1776-1790); Virginia (1776-1851); New Jersey (1776-1844); Delaware (1776-1831); Pennsylvania (1776-1790); Maryland (1776-1809); North Carolina (1776-1857); New York (1777-1821); Massachusetts (1780-1820); Connecticut (1702-1818); Rhode Island (1767-1842); Vermont (1791-1793); Tennessee (1796-1834); Ohio (1803-1851); and Michigan (1850-1908).
[9] Rana, Aziz. The Two Faces of American Freedom. (p. 60) Cambridge: Harvard University Press, 2010.
[10] Castellanos Canales, Arturo. The Right of Suffrage of Shosics (Noncitizens) in the United States. (p. 6) Cornell University, 2020.
[11] “(b) Any person who violates this section shall be fined under this title, imprisoned not more than one year, or both.”
Ҥ 611. Voting by aliens
“(a) It shall be unlawful for any alien to vote in any election held solely or in part for the purpose of electing a candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner…—
“(b) Any person who violates this section shall be fined under this title, imprisoned not more than one year, or both.”
[12] “(2) aliens are authorized to vote for such other purpose under a State constitution or statute or a local ordinance;
[13] Municipalities in the U.S. have only the powers that the state legislature expressly delegates to them in their enabling legislation. This general principle is named Dillon’s Rule after Judge Forest Dillon, Chief Justice of the Iowa Supreme Court, who expounded the municipal powers in a relevant court decision in 1868.
[14] Takoma Park, Chevy Chase, Chevy Chase Section Three, Hyattsville, Mount Rainier, Riverdale Park, Barnesville, Garrett Park, Martin’s Additions, Glen Echo, and Somerset.
[15] James Wright Jr., Noncitizen Voting Is Set for D.C., The Washington Informer, May 1, 2024. (Available at https://www.washingtoninformer.com/noncitizen-voting-dc-elections/; Accessed on May 7, 2024)
[16] San Francisco and Oakland.
[17] Hayduk, Ronald. Democracy for All: Restoring Immigrant Voting Rights in the United States. (Available at https://www.nypl.org/sites/default/files/hayduk_-_chapter_2.pdf; Accessed on May, 7 2024)