Sunday, November 2, 2014

Martha Coakley Has No Problem with Non-Citizens Voting

Res Publica
Martha Coakley Has No Problem with Non-Citizens Voting
by David Trumbull -- October 31, 2014

Recently Martha Coakley said she believes that allowing non-citizens to vote in local town and city elections should be an option for municipalities to choose for themselves, showing, once again, how out of touch she is with the citizens of Massachusetts.

She has been roundly denounced. Some have even suggested that our Attorney General needs a refresher course in constitutional law because, they say, such a proposal is contrary to the U.S. Constitution. Here I must part with my fellow conservatives, for, no matter had bad the idea of aliens voting in our elections may be, it is, nevertheless, perfectly constitutional.

The U.S. Constitution, as it went into force in 1787 said absolutely nothing about qualifications for voters, leaving it entirely in the hands of the states. At the time no state prohibited non-citizens from voting. There were other restrictions. In Massachusetts the electoral franchise was restricted to male inhabitants (not limited to citizens), 21 years of age and older, and owning a certain amount of property. Most states had similar requirements. Southern states further restricted the franchise to Whites only.

Some states limited voting to citizens starting after the War of 1812, which generated an enhanced sense of patriotism. More banned it in the 1840s and 1850s. Two notable things were happening around then-- (1) the 1848 revolutions in Europe caused many Americans to regard foreigners with suspicion and (2) the beginning of the flood of Irish Catholic immigrants who threatened the political supremacy of English, Scots, and Scots-Irish Protestants. But the big wave of states banning voting by non-citizens was in the early twentieth century. Then a new wave of immigrants from Italy, the rest of Southern Europe, and Eastern Europe, again awaked nativist fears about "inferior races" and Catholics and Jews. It was not until the election of 1928 that all states had limited voting to citizens only.

The Constitution has seven times been amended to regulate voting.

(1) The 14th Amendment, ratified February 3, 1870, said that states could not deny the vote to African-Americans. In Massachusetts American-Americans had the vote since the 1780s.

(2) The 17th Amendment, ratified April 8, 1913, provided for the direct election of U.S. Senators. The amendment stipulated that, "The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures," again, recognizing that qualification of voters is a state, not national, right.

(3) The 19th Amendment, ratified August 18, 1920, said that states could not deny the vote to women. In Massachusetts women had been able to vote since 1879, but only for school committee, not for any other offices.

(4) The 22nd Amendment, ratified, February 27, 1951, limited the President to two terms.

(5) The 23rd Amendment, ratified March 29, 1961, gave the District of Columbia votes for President and Vice President. It did not specify whether D.C. voters had to be citizens.

(6) The 24th Amendment, ratified January 23, 1964, said that states could no longer assess a "poll tax" for voting.

(7) The 26th Amendment, ratified July 1, 1971, said that states could not limit voting based on age in the case of citizens who are 18 years of age or older. Interesting, there is nothing in the Constitution hindering states from choosing a lower age. In Maine 17-year-olds can vote in a primary election, as long at they will be 18 by the time of the general election. Maine is not the only state to allow voting by 17-year-olds.

Clearly, nothing in the Constitution prohibits voting by non-citizens. In New York City non-citizens voted in elections for school board until 2002 (when the board was made an appointed rather than elected body). The reasoning behind this is that many non-citizens have children in the public schools and are taxed to support the schools. A few, very few, other municipalities allow non-citizens to vote in at least some local elections.

Currently it is illegal for aliens to vote for President, Vice President, U.S. Senator, and U.S. Representative. That restriction is found not in the Constitution, but in a law [18 U.S.C. §611]. It was passed as a part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Given that the Constitution gives to the states, not Congress, the power to regulate qualifications for voting (except that the states cannot disenfranchise specific classes of voters under the provisions of the 14th, 19th, 24th and 26th amendments) I question whether the federal prohibition on aliens voting in national elections is itself constitutional. Derek T. Muller, Associate Professor of Law, Pepperdine School of Law, also questions the constitutionality of 18 U.S.C. §611.