Get our latest essays, archival selections, reading lists, and exclusive content delivered straight to your inbox.
I share Owen Fiss's concern about legislation denying immigrants basic benefits, but I propose a different solution. Almost all the disabilities that concern Fiss are imposed by the states. Why not simply let non-citizen immigrants vote in state and local elections?
Contrary to popular understanding, the law imposes no impediment to non-citizen voting in the United States, even on the federal level. The Constitution does not require that voters be citizens; the decision about who can vote in federal elections rests in the hands of each state. During the eighteenth and nineteenth centuries at least twenty-two US states and territories enfranchised immigrants in both state and federal elections; non-citizens voted in the United States as recently as 1928. In the case of Minor v. Wisdom (1874), the Supreme Court approvingly noted that "citizenship has not in all cases been made a condition precedent to the enjoyment of the right of suffrage," citing Missouri, Texas, Indiana, Georgia, Alabama, Arkansas, Florida, Kansas, and Minnesota as examples of states then allowing non-naturalized immigrants to vote. Offering the franchise was a way of attracting new settlers to a vast and under-populated country.
This is not 1874, and the United States is not looking to encourage more immigration. Today, Takoma Park, Maryland stands as the only local government in the United States that has enfranchised non-citizens. But as the Maastricht Treaty acknowledged with its grant to all Europeans of the right to vote in European countries other than their own, and as Norway, Sweden, Denmark and the Netherlands have long realized, a forceful case can be made that non-citizen immigrants, and even undocumented people (so-called "illegal aliens") should be allowed to vote in local elections.
The most fundamental argument for this propositon is founded on a basic democratic principle: that a community should only be able to bind members by its laws, and require their support through taxes, if it allows them to participate in its politics. This principle condemns efforts to build a democratic political community by excluding non-citizens, and implies instead that the right to participate by voting should rest on an individual's stake in the community and her interest in the outcome, not on whether she has taken the citizenship test. I believe that states and local governments already treat non-citizens–both legal permanent residents and undocumented people–sufficiently like community members to qualify them as voters, under this conception of voting rights.
For example, all resident non-citizens must pay income taxes regardless of their immigration status. Contrary to popular belief, most undocumented people do not "freeload" on the system, consuming services while paying no taxes. In this country, immigration laws require proof of tax payment for the five years previous to becoming legal; as a result, many undocumented immigrants go out of their way to pay taxes, often without receiving the refund to which they are entitled because the payments are made under false Social Security numbers.
Moreover, non-citizens participate in community life in many other ways. As Fiss points out, the Supreme Court guaranteed the right of undocumented children to attend public school in Plyler v. Doe. (Both New York City and Chicago have recognized this by allowing all parents to vote in school board elections and hold school board office regardless of immigration status.) In similar ways, non-citizens use and support police, sanitation, and other city and state services. Their dollars–by the millions–support private services and businesses as well. And they are bound by the laws of the locality, the state and the federal government.
Lots of people have trouble accepting this argument because of their misperceptions about the life of undocumented persons: they can not imagine that such immigrants are active participants in a community. Fiss's bleak description of people who are forced "to survive by begging or stealing and thus to live at the margins of society and to prey on it" is a classic example. Having worked with such immigrants for fourteen years, I can unequivocally state they do not live this kind of feral and reclusive existence; instead, they participate vigorously in the economy (albeit often underground), churches, schools and communities where they live. Unless forced to dig in their wallets for their immigration papers, they are often indistinguishable from any other member of the community, and their interest and stake in the community's political decisions is as strong as that of any citizen.
There are no shortage of counter-arguments to the principle that this stake should guarantee immigrants the vote. (Fiss himself mentions two.)
1. Non-citizens have not sworn a loyalty oath to the United States, and therefore can not be trusted to vote in the best interests of this country, as opposed to their own interests or those of their country of origin. Proponents of this argument ignore the fact that people born in the United States are not required to swear allegiance to the Constitution. We assume that by virtue of their birth on these shores, they will be "loyal" voters. If birth is a sufficient proxy for loyalty, why is the active choice to move to this country not an even stronger proof of commitment to our values? In addition, state and local elections offer the voter little or no opportunity for treason. Both immigration and foreign policy are decided exclusively by the federal government.
2. Immigrants as a group would tip the political balance in a state or community by voting in their own interest. Non-citizens could, for example, vote to grant state public assistance to undocumented people, to make the local community a "sanctuary city" for refugees, or to have bilingual instruction in the public schools. While it may be true that non-citizen immigrants would vote for these things, it is no less true that citizens vote in their own interests all the time–property owners about property taxes, parents about schools, etc. In Carrington v. Rash, a parallel 1964 case about the right of soldiers temporarily stationed in Texas to vote in that state, the Supreme Court unequivocally held that "[f]encing out" from the franchise a sector of the population because of the way they may vote is constitutionally impermissible."
3. If a non-citizen wanted to vote, she could easily become a citizen. Sadly, this is no longer true. Yes, immigrants who are legal permanent residents (with green cards) are eligible to become citizens after five years–if they can wade through the two-million person, two-year backlog. But many immigrants, including hundreds of thousands of legal immigrants here with temporary work permits, do not have green cards. They live and work in communities all over the United States, but for most of them, naturalization is not an option. So many of the people that Fiss is concerned about do not have the choice to become voters, now or ever.
4. Non-citizen immigrants might return to another country, voluntarily or through deportation; as transients, they should not be allowed to vote. Immigrants should be subjected to the same proof-of-residency requirements for voting in state and local elections as citizens. Just as US citizens can vote in the state where they have made a home, even though tomorrow they may move, non-citizens should be able to vote where they reside, even though there is a chance that they will some day leave. Again, the Supreme Court's decision in the case of soldiers stationed in Texas provides guidance. Texas had denied the soldiers the right to vote in part because their frequent transfers turned them into transients. The court found that it was not legitimate for the state to decide for a group of people as a class that their status rendered them transient, without giving the individuals a chance to prove the bona fides of their residence.
5. If we let non-citizens vote, we will erase the last meaningful distinction between "us" and "them." Not true. The right to vote in federal elections would remain exclusively the province of citizens, as would the right to hold federal office. Non-citizen immigrants could still be deported, and would be subjected to immigration laws and restrictions in general. It is unlikely that non-citizens would be in the majority in the bulk of voting districts; therefore, states and localities are also likely to continue imposing some distinctions.
6. Non-citizen immigrants are too ignorant of US government structure, politics, and culture to vote responsibly. Unfortunately, it is no less true that many US-born citizens are too ignorant of US government structure, politics, and culture to vote responsibly. The Supreme Court's observations in another voting rights case, in which a state had imposed durational residency requirements on newcomers before they could vote, are equally apposite here.
Durational residency requirements on voting rights permit any longtime resident to vote regardless of his knowledge of the issues–and obviously many longtime residents have no such knowledge. On the other hand, these requirements bar from the franchise many other, admittedly new, residents who have become at least minimally, and often fully informed about the issues. Indeed, recent migrants who take the time to register and vote shortly after moving tend to be those who make it a point to be informed and knowledgeable about the issues (Dunn v. Blumstein, 405 US 330 (1972) at 358).
Because non-citizens have chosen this country, rather than being born into it, and are in the process of learning about its language and culture, they often pay more attention to the events around them than jaded citizens do. Foreign-language television, radio, and newspapers in most immigrant communities keep people up to date on politics here as well as abroad. As the measures protective of linguistic minorities in the Voting Rights Amendments of 1975 indicate, we should not assume that voters who do not speak English will vote any less intelligently than those who do. It is also important to realize that not all non-citizens will register to vote; only those most interested and aware will do so. And undocumented people will only register if they are willing to take the risk of having their names published in public voting rolls, which will deter all but the most politically active from participating.
7. Allowing non-citizen voting would increase fraud. Although this is frequently stated, I can not understand why the votes of non-citizens are any more likely to be bought or sold than the votes of citizens: immigration status does not seem to be an adequate proxy for dishonestly, never mind a compelling one. In any case, states can and should address this concern through anti-fraud measures applied equally to all voters, regardless of their citizenship status.
To conclude, let me be clear about the politics of my argument. I do not expect the Supreme Court to require the enfranchisement of non-citizens. But if a particular state or community were convinced by these arguments and decided to extend the vote to immigrants, I think the Court might well uphold their decision. The Constitution permits such an arrangement, and courts have frequently upheld local laws granting nonresidents with sufficient interest in local issues (as evidenced most often by property holdings) the right to vote in local elections.
It is not an easy thing to change an idea so deeply ingrained as the concept that voting is the exclusive province of citizens. Nevertheless, a closer look at state and local communities, and their non-citizen residents' lives within them–as well as the effects to date of disenfranchisement–supports the idea of non-citizen suffrage as a fair and rational solution to the concerns that so many of us share with Owen Fiss.
Jennifer Gordon is the founder and former executive director of the Workplace Project, on Long Island, and an associate professor at Fordham University School of Law. Portions of this article are adapted from her book Suburban Sweatshops: The Fight for Immigrant Rights, published earlier this year by Harvard University Press.
Vital reading on politics, literature, and more in your inbox. Sign up for our Weekly Newsletter, Monthly Roundup, and event notifications.
Support us with a donation this giving season.
Robin D. G. Kelley on the midterm elections.
What we have achieved this year—and our plans for 2023.
Austerity is not the only way to save our overextended planet. A simpler life might be both more pleasurable and more equal.
We must reject the legal liberalism that attempts to cordon off constitutional questions from democratic politics.
The United States ranked first on health security; then came COVID-19. In place of technocratic hubris, we need robust new forms of democratic humility.