Immigrant Rights and the Resurgence of Noncitizen Voting in the United States

By: Morgan Dreher

Edited by: Samantha yip and Claire Quan

What are the requirements to vote in the United States? Citizenship is likely one of the first qualifications you consider, but for the majority of U.S. history, this has not been the case. Noncitizen voting was permitted in 40 states up until the early twentieth century, even in federal elections in some cases. [1] This served many purposes, such as encouraging immigrants to move to the South for labor or incentivizing them to join the military. [2] However, an influx of Southern and Eastern European immigrants between 1880 and 1910 increased anti-immigration sentiment and the overturning of policies permitting noncitizen voting. [3] The exclusion of noncitizens from the voting process was formalized with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which criminalized noncitizens’ voting in federal elections. [4] However, since 2018, a resurgence of noncitizen voting has emerged in certain municipalities within California, Vermont, Maryland, and the District of Columbia. [5] This divergence from the country’s recent norm has resulted in much political and legal discourse and raises broader philosophical questions amidst a period of immigration crises and impending elections. 

So what exactly does noncitizen voting constitute? In its current form, it refers to municipalities in the United States that allow people without citizenship to vote in school boards and/or local elections. [6] Noncitizen voting in federal elections remains illegal due to IIRIRA, but decisions regarding local elections are reserved for the states. With the possibility of noncitizens voting back in the picture, the subject is contentious as we reconsider immigrant rights.

Rather than being divided along partisan lines, the issue of noncitizen voting elicits widespread public concern and intrigue of its radical nature. [7] Nonetheless, proponents and opponents of noncitizen voting each possess complex arguments regarding its legality and political implications. For example, many arguments regarding noncitizen voting are rooted in different interpretations of state constitutions, which can be the basis for creating and overturning noncitizen voting policies. Essentially, many constitutions declare citizens can vote but do not explicitly specify that only citizens can vote. This was the case for New York City, where a law was passed affirming noncitizens’ rights to vote for mayor and City Council. New York City would have been the largest US city to incorporate noncitizen voting, but Justice Ralph J. Porzio ruled that this law contradicted the state constitution, interpreting citizenship to be a requirement for all voters. [8] Because similar arguments can be made in many states and government officials recognize their convoluted nature, legislators in states such as Alabama, Colorado, and Florida are making efforts to amend their state constitutions so that a citizenship requirement for voting is more explicitly stated. [9] 

Another legal argument is the applicability of the Equal Protection Clause of the Fourteenth Amendment to immigrant rights. In 1982, the Supreme Court ruled in Plyler v. Doe that illegal immigrant classifications should be held to a rational-basis standard of review, rather than the strict scrutiny standard applied to legal immigrants. [10] While some argue everyone within US jurisdiction deserves the protection of the Constitution, the majority opinion in Plyler v. Doe believed those entering the US without permission should be prepared to deal with the consequences of their actions. Plyler v. Doe allotted more power to the states to determine the rights of undocumented immigrants and has since been used as the basis for other court cases that have decreased the rights of the undocumented population. [11]

While interpretation of the law grounds many debates, other arguments are heavily based on ideological standpoints. To understand these perspectives, it is beneficial to start with supporters of noncitizen voting rights, who used their arguments to bring back policies that have been obsolete since the early twentieth century. First, one of the most popularized justifications refers to the American principle of “no taxation without representation.” This argument highlights a logical disconnect between the 25 million people living in the US who are paying taxes and contributing to society but lack representation in elections. [12] Along these same lines is the idea that permitting noncitizens to vote allows for a more holistic representation of the population in city elections, which is increasingly relevant for cities with growing immigrant populations. [13] 

Furthermore, Ron Hayduk of San Francisco State University states another argument on historical precedent, referencing how “the idea that noncitizens should have the vote is older and has been practiced longer than the idea that they should not.” [14] Additionally, proponents reason that voting increases the stakes and sense of belonging for noncitizen voters, meaning they will be more interested in seeking citizenship. [15]

Another set of supporting arguments exists in the realm of social justice, given that the disenfranchisement of noncitizens is a loss of rights. Some argue that not only is preventing noncitizens from voting discriminatory, but it also opens the door for other discriminatory public policies in the future as noncitizen voices go unheard. [16]  Hayduk also makes this claim based on the idea that politicians will not fear retribution from noncitizens via the polls, enabling them to enact discriminatory policies. [17] Lastly, another equity concern is that the process of naturalization is lengthy and difficult, meaning it is an unjust requirement for representation in elections. [18] In summary, proponents of noncitizen voting, as stated by scholar Cristina M. Rodríguez, believe that “the core substantive principle of democracy is that those subject to the law should have a voice in its formulation.” [19]

On the other side, opponents to noncitizen voting are aptly ready to dispute supporting arguments. The New York Post writes that acquiring citizenship “is a vital acceptance of duties as well as privileges,” meaning that to receive the benefits of citizenship, one must also take on the accompanying responsibilities. [20] It quickly becomes evident that this concept of citizenship is an important value for opponents and grounds most of their arguments. One of the most prevalent beliefs on this side is that noncitizen voting will take away the incentive for people to seek citizenship, in turn resulting in less national unity and “diminish[ing] the voting power of citizens.” [21] Overall, opponents see citizenship as a core American value, which incurs much of its meaning from voting privileges. Rodríguez acknowledges this accordingly, discussing how while there are many mechanisms for the integration and incorporation of immigrants, voting is central to defining citizenship. [22] 

Other, less common perspectives include the idea that noncitizen voting could lead to confusion, where noncitizens surpass voting barriers and accidentally vote in federal elections. [23] Furthermore, some opponents feel that once noncitizens receiving social welfare benefits are enfranchised, they will have the main advantage of citizenship and no desire to leave welfare behind. [24] In general, contrary to supporting arguments that promote the universal benefits of noncitizen voting, critics see these same policies as a threat to integral American ideals. Connecticut Representative Vincent Candelora even went as far as to say that “opening up elections to non-citizens completely erodes our sovereignty in this country and in our state.” [25] 

Given that the restoration of noncitizen voting policies is a recent phenomenon, it is possible that public opinion will shift after analysis is released regarding upcoming elections. Only time will tell the real impact that noncitizen voting has on its permitted localities, but its impact could be significant enough to change the course of elections. [26] For example, a study of the 2008 election revealed that noncitizen voting likely affected the electoral college results, contributing to Obama’s North Carolina victory. [27] While this is an example of a federal election and noncitizens who surpassed existing voting barriers, it showcases the potential power noncitizens have to alter election results. 

Ultimately, the topic of noncitizen voting is controversial and evolving as new policies are passed and state constitution amendments are approved. Legal changes, along with upcoming elections and US demographic shifts, will likely bring further public attention to the topic of noncitizen voting. While the issue itself is relevant and debatable, it also evokes fundamental questions about the United States. What does it mean to be a citizen? To what extent do immigrants have rights in the US? Do newer or older principles take precedence in political debates? As what once was considered a country of immigrants, we must now face these questions about where we stand on the rights of all immigrants, not just those who are US citizens.

Notes:

1. Matt Vasilogambros, “Noncitizens Are Slowly Gaining Voting Rights,”  Stateline.org, 2021. https://stateline.org/2021/07/01/noncitizens-are-slowly-gaining-voting-rights/.

2. Ron Hayduk, “Chapter 2,” In Democracy for all : restoring immigrant voting rights in the United States, 15-40, N.p.: Routledge, 2006. https://www.nypl.org/sites/default/files/hayduk_-_chapter_2.pdf.

3. Hayduk, “Chapter 2,” In Democracy for all : restoring immigrant voting rights in the United States.

4. “*Public Law 104–208 104th Congress An Act,” GovInfo, 1996. https://www.govinfo.gov/content/pkg/PLAW-104publ208/pdf/PLAW-104publ208.pdf.

5. “Arguments for and against laws permitting noncitizens to vote in the United States,” n.d. Ballotpedia, Accessed January 26, 2024. https://ballotpedia.org/Arguments_for_and_against_laws_permitting_noncitizens_to_vote_in_the_United_States.

6. Alison Cross, “Republicans Voice Outrage Over Non-Citizen Voting Bill,” Governing, 2023. https://www.governing.com/now/republicans-voice-outrage-over-non-citizen-voting-bill.

7. Nicholas Goldberg, “Is It Time to Let Noncitizens Vote in Local Elections? Some Americans Think that’s Just Nutty,” Governing, 2023. https://www.governing.com/politics/is-it-time-to-let-noncitizens-vote-in-local-elections-some-americans-think-thats-just-nutty.

8. Jeffery C. Mays, “New York City's Noncitizen Voting Law Is Struck Down,” The New York Times, 2022. https://www.nytimes.com/2022/06/27/nyregion/noncitizen-voting-ruling-nyc.html.

9. Vasilogambros, “Noncitizens Are Slowly Gaining Voting Rights.”

10. Jason H. Lee, “Unlawful Status as a Constitutional Irrelevancy: The Equal Protection Rights of Illegal Immigrants,” Golden Gate University Law Review 39, no. 1 (Fall): 1-40, 2008. https://heinonline.org/HOL/P?h=hein.journals/ggulr39&i=3.

11. Lee, “Unlawful Status as a Constitutional Irrelevancy: The Equal Protection Rights of Illegal Immigrants.”

12. Goldberg, “Is It Time to Let Noncitizens Vote in Local Elections? Some Americans Think that’s Just Nutty.”

13. Hayduk, “Chapter 2,” In Democracy for all : restoring immigrant voting rights in the United States.

14. Hayduk, “Chapter 2,” In Democracy for all : restoring immigrant voting rights in the United States.

15. “Arguments for and against laws permitting noncitizens to vote in the United States.”

16. “Arguments for and against laws permitting noncitizens to vote in the United States.”

17. “Arguments for and against laws permitting noncitizens to vote in the United States.”

18. Goldberg, “Is It Time to Let Noncitizens Vote in Local Elections? Some Americans Think that’s Just Nutty.”

19. Cristina M. Rodríguez, “Noncitizen voting and the extraconstitutional construction of the polity,” International Journal of Constitutional Law 8, no. 1 (January): 30-49, 2010. https://doi.org/10.1093/icon/mop032.

20. “Arguments for and against laws permitting noncitizens to vote in the United States.”

21. Mays, “New York City's Noncitizen Voting Law Is Struck Down.”

22. Rodríguez, “Noncitizen voting and the extraconstitutional construction of the polity.”

23. Vasilogambros, “Noncitizens Are Slowly Gaining Voting Rights.”

24. Arguments for and against laws permitting noncitizens to vote in the United States.”

25. Cross, “Republicans Voice Outrage Over Non-Citizen Voting Bill.” 

26. Jesse T. Richman, Guishan A. Chattha, and David C. Earnest, “Do Non-Citizens Vote in U.S. Elections?” ODU Digital Commons, 2014. https://digitalcommons.odu.edu/cgi/viewcontent.cgi?article=1011&context=politicalscience_geography_pubs.

27. Richman, Chattha, and Earnest, “Do Non-Citizens Vote in U.S. Elections?

Bibliography:

“Arguments for and against laws permitting noncitizens to vote in the United States.” n.d. Ballotpedia. Accessed January 26, 2024. https://ballotpedia.org/Arguments_for_and_against_laws_permitting_noncitizens_to_vote_in_the_United_States.

Cross, Alison. 2023. “Republicans Voice Outrage Over Non-Citizen Voting Bill.” Governing. https://www.governing.com/now/republicans-voice-outrage-over-non-citizen-voting-bill.

Goldberg, Nicholas. 2023. “Is It Time to Let Noncitizens Vote in Local Elections? Some Americans Think that’s Just Nutty.” Governing. https://www.governing.com/politics/is-it-time-to-let-noncitizens-vote-in-local-elections-some-americans-think-thats-just-nutty.

Hayduk, Ron. 2006. “Chapter 2.” In Democracy for all : restoring immigrant voting rights in the United States, 15-40. N.p.: Routledge. https://www.nypl.org/sites/default/files/hayduk_-_chapter_2.pdf.

“Laws permitting noncitizens to vote in the United States.” n.d. Ballotpedia. Accessed January 26, 2024. https://ballotpedia.org/Laws_permitting_noncitizens_to_vote_in_the_United_States.

Lee, Jason H. 2008. “Unlawful Status as a Constitutional Irrelevancy: The Equal Protection Rights of Illegal Immigrants.” Golden Gate University Law Review 39, no. 1 (Fall): 1-40. https://heinonline.org/HOL/P?h=hein.journals/ggulr39&i=3.

Mays, Jeffery C. 2022. “New York City's Noncitizen Voting Law Is Struck Down.” The New York Times. https://www.nytimes.com/2022/06/27/nyregion/noncitizen-voting-ruling-nyc.html.

“*Public Law 104–208 104th Congress An Act.” 1996. GovInfo. https://www.govinfo.gov/content/pkg/PLAW-104publ208/pdf/PLAW-104publ208.pdf.

Richman, Jesse T., Guishan A. Chattha, and David C. Earnest. 2014. “Do Non-Citizens Vote in U.S. Elections?” ODU Digital Commons. https://digitalcommons.odu.edu/cgi/viewcontent.cgi?article=1011&context=politicalscience_geography_pubs.

Rodríguez, Cristina M. 2010. “Noncitizen voting and the extraconstitutional construction of the polity.” International Journal of Constitutional Law 8, no. 1 (January): 30-49. https://doi.org/10.1093/icon/mop032.

Vasilogambros, Matt. 2021. “Noncitizens Are Slowly Gaining Voting Rights.” Stateline.org. https://stateline.org/2021/07/01/noncitizens-are-slowly-gaining-voting-rights/.