Chapter 13 Immigration, Voting Rights, and Electoral Access

• Library: America Votes! Challenges to Modern Election Law and Voting Rights (ABA) (2016 Ed.)

CHAPTER 13 IMMIGRATION, VOTING RIGHTS, AND ELECTORAL ACCESS

NANCY G. ABUDU

The issue of immigration reform has touched almost every aspect of social and economic life, from employment, housing, and education to even the issuance of driver's licenses. Voting rights is another area in which the immigration debate has had a platform, but mostly from the vantage point of those trying to incite hysteria that undocumented immigrants also are taking over the ballot box in addition to "our country." Swallowed up in this discourse is the plight of lawful permanent residents who cannot exert the same level of political influence as regular voters even though noncitizens are equally impacted by government policies, especially at the local level. Only a small number of cities have taken on the challenge of equal representation for all with respect to voting. Those places, such as Takoma Park, Maryland; Chicago, Illinois; New York City; and Washington, D.C., have either passed or are considering legislation that would allow noncitizens to vote in local elections.

Now, granted, whether or not noncitizens should be allowed to vote in U.S. elections is not an easily answerable question. On one hand, our foundational democracy included aliens in the electorate. On the other hand, the right to vote has become more entrenched in our evolving definition of citizenship. Groups challenging restrictive election laws that heavily impact minority voters have successfully rebutted false claims of rampant voter fraud by noncitizens. This is in response to claims that voter photo identification and proof of citizenship laws are necessary to protect the integrity of elections. Advocating for noncitizen voting, thus, is not about sanctioning or encouraging unlawful behavior. Instead, it is about promoting the right of people directly impacted by government policies to have a say in who makes those policies, and greater influence on how those policies are developed and implemented.

The Supreme Court will be grappling with the concepts of citizenship, representational equality, and electoral equality in Evenwel v. Abbott,¹ a case challenging the inclusion of noncitizens in the total population count for redistricting purposes. The Court's decision in Evenwel could very well uphold the traditional model used for redistricting—total population—and deference given to political units. The case, however, also presents an opportunity to explore noncitizen voting as a solution to the concern the Evenwel plaintiffs raise.

I. History of Noncitizen Voting in the United States

Throughout the 19th century, over 20 states allowed noncitizens to vote, with Arkansas being the last state to abandon the practice in 1926.² While race and wealth were prerequisites for voter eligibility, citizenship was not. Consequently, white men with property, regardless of their nationality, could vote at the exclusion of all others—foreign or native born.

During the most intense times leading up to and during the Civil War, there was a noticeable division between northern and southern states on the issue of noncitizen voting. Northern states favored expansion of voting rights for immigrants and, in fact, relied upon such voters in keeping their numbers, power, and influence high.³ Southerners, on the other hand, were fiercely opposed to any such expansion because they viewed most immigrants as being anti-slavery and, therefore, a potentially dangerous voting bloc during the height of Southern secession efforts.⁴ However, with the Civil War's end, Reconstruction, and the passage of the Civil Rights Act of 1866, white Southerners were at a clear disadvantage—numerically and politically—given the enfranchisement of former slaves.⁵ Consequently, some southern states began to realize that enfranchising immigrants actually was in their best interest.⁶

Supreme Court cases during the Reconstruction period further corroborate that noncitizen voting was not an unusual practice among the states. In Minor v. Happersett, the Court recognized that

citizenship has not in all cases been made a condition precedent to the enjoyment of the right of suffrage. Thus, in Missouri, persons of foreign birth who have declared their intention to become citizens of the United States may under certain circumstances vote. The same provision is to be found in the constitutions of Alabama, Florida, Georgia, Indiana, Kansas, Minnesota, and Texas.⁷

This history has been lost and, perhaps, purposely omitted in the diatribe against our growing immigrant communities. Still, today, there is no federal law that prohibits noncitizens from voting in state and local elections. Instead, states may develop their own voting qualifications provided such qualifications comport with the federal Constitution and their own state election laws.⁸ Therefore, the idea that noncitizens should be allowed to vote in state or federal elections is neither a novel concept given our country's history, nor should we dismiss the notion as shocking, outrageous, or even anti-American.

II. Noncitizen Voting Today

The practice of allowing noncitizens to vote in present-day elections definitely is not as widespread as it used to be. However, there are a few cities that have successfully experimented with noncitizen voting, and more places are considering legislation to expand their electorate to include noncitizens. In 1993, Takoma Park, Maryland, was the first city to allow lawful permanent residents to vote in mayoral and city council elections and on referenda regarding city taxes and waste collection.⁹ The city created a separate registration system for noncitizens, which ensures they receive ballots for only those elections in which they are eligible to vote.¹⁰ Other small towns in Maryland have done the same thing— Barnesville, Chevy Chase Section Three, Garrett Park, Martin's Additions, and Somerset.¹¹

Chicago also permits lawful permanent residents to vote in local school elections provided the person is a parent or guardian of a child enrolled in school or lives within the attendance boundaries of the school.¹² New York City used to allow noncitizens to vote in school board elections until school boards were disbanded in 2003.¹³ Today, New Yorkers are considering legislation that would allow permanent residents to vote in local elections, but the law would require the state's election code to be amended.¹⁴

Other places such as Arlington, Virginia; Amherst and Cambridge, Massachusetts; and even towns in Texas are considering bills or referenda that model the expansion of rights to noncitizens as in Takoma Park.¹⁵ Like New York, the main roadblock a lot of places face is the need to update their state election codes to match voter qualification requisites at the local level. Amherst in particular has been trying since the mid-1990s to get the Massachusetts legislature to pass enabling legislation, but such bills continually die.¹⁶ This may be due to a lack of political will on...