Non-Citizens Used to Vote Regularly in America. Should More Elections Be Open to Them Today?

The Constitution doesn't bar non-citizens from voting, but when San Francisco opened up school elections to all residents, a conservative firestorm followed.
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People vote at city hall in San Francisco, California, in the 2018 mid-term election.

People vote at city hall in San Francisco, California, in the 2018 mid-term election.

The same day that Donald Trump was elected president, voters in San Francisco County approved a ballot measure allowing non-citizens to vote. Though the proposition only enfranchised parents of children under 19 exclusively for school board elections, a Republican from Texas in the House of Representatives, Dan Crenshaw, saw a political opportunity.

Crenshaw tried to add a measure to a larger voting rights bill introduced by Democrats in which he specifically referenced San Francisco and concluded, "It is the sense of Congress that allowing illegal immigrants the right to vote devalues the franchise and diminishes the voting power of United States citizens."

Democrats rejected the measure, which was then spun as an endorsement of voter fraud. "House Dems overwhelmingly reject motion to condemn illegal immigrant voting," read the headline on Fox News.

In addition to being controversial, the San Francisco measure was also expensive. The county had to write new voter registration forms, print new ballots, and launch an outreach campaign to educate non-citizens about their new rights. Because it is the state that maintains the voter database in California, San Francisco County also had to create its own digital infrastructure.

In total, the county has spent at least $252,832.58 on non-citizen voting: $102,832.58 to implement it, which the school district will reimburse, and $150,000 in outreach, which did not significantly boost turnout. In fact, for the November of 2018 election, 65 non-citizens registered. Sixty of them cast a ballot, at a price of $4,213.88 per vote.

Given the low turnout and the costs, political and monetary, is granting non-citizens the right to vote a worthwhile investment nationwide?

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San Francisco did not invent non-citizen voting (NCV). Between 1776 and 1926, immigrants could vote in 40 states and even some federal elections, and the practice was routinely upheld by the Supreme Court. In 1874, before women's suffrage, a Missouri citizen tried to register to vote but was prohibited. She sued, and in a unanimous Supreme Court decision was denied the right to vote on account of her gender, but not her citizenship. Notably, the court ruled that "citizenship has not in all cases been made a condition precedent to the enjoyment of the right of suffrage."

Later, in 1904, the Supreme Court ruled that "the privilege to vote in a State is within the jurisdiction of the State itself," and in 1973, the justices opined that "citizenship is a permissible criterion" for limiting enfranchisement, but not a mandatory one.

According to Ron Hayduk, a professor of political science at San Francisco State University, offering voting rights to non-citizens was one way that frontier territories attracted settlers. Under the Northwest Ordinance of 1787, for example, residents in the Northwest Territory were enfranchised after three years. Under the Illinois constitution, it was just six months.

However, Hayduk points out that the naturalization process used to be quicker, easier, and seemingly inevitable. "Everyone here was seen as being on a path to citizenship," he says, "so it's like: 'So what? You aren't a citizen now, but you will be.'"

NCV peaked around the 1870s and 1880s, according to Hayduk, but lawmakers began rescinding the laws and changing their state constitutions during a broader pushback against social movements like socialism, populism, and organized labor that "challenged the economic and political power of the day." The rolling back of rights also coincided with other ways to suppress voter turnout, like poll taxes, literacy tests, felony disenfranchisement, and restrictive residency requirements.

Since 1996, non-citizens have been prohibited from voting in federal elections under federal law. Over the past few decades, a number of states have considered but rejected NCV in state and local elections, including Connecticut, Maine, and Minnesota, while other jurisdictions have passed NCV but are waiting for approval from their state legislatures, which must approve changes in local voting laws. That's the case for two cities in Vermont, Montpelier and Brattleboro, and at least five in Massachusetts.

Other jurisdictions have implemented NCV without issue. Chicago allows non-citizens to vote in school council races, but those elections are not official or administered by the Board of Elections. Meanwhile, a number of municipalities in Maryland have NCV for local elections, including the Town of Chevy Chase, whose council approved it unanimously in 2018 after two years of discussions and hearings.

But nationwide, the tide isn't necessarily breaking toward NCV. Even in San Francisco, measures nearly identical to the one that recently passed were defeated in 2004 and 2010. In the 2016 election, when only 9 percent of the county's citizens voted for Trump, Proposition N granting NCV for school board elections was approved 54–46, a comfortable but not overwhelming margin.

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Of course, the dynamics of the immigration debate have changed since November 6th, 2016. That day, many expected Hillary Clinton to win the presidency, and when she didn't, some supporters of Proposition N suggested delaying its implementation because the federal government would be able to access any information that potential non-citizen voters provided. The proposition allows any resident to vote, regardless of whether he or she is in the country legally, so the stakes were especially high.

"People were very nervous that already vulnerable immigrant families could become targets of the Trump administration," says Hong-Mei Pang, the director of advocacy for Chinese for Affirmative Action, a civil rights group that campaigned in support of NCV. "And this was around the same time the Department of Justice was conducting their witch hunt for voter fraud."

Pang pushed for NCV to be implemented regardless—and it was, but with certain precautions. A notice on the county's department of elections website, available in 51 languages, warns prospective voters, "Any information you provide to the Department of Elections, including your name and address, may be obtained by Immigration and Customs Enforcement and other agencies, organizations, and individuals."

In addition to opening oneself up to immigration enforcement, voting can open up a non-citizen to risky situations. San Francisco created a special registration form for non-citizens, but if a non-citizen accidentally uses the standard one, say, and declares that she's a citizen, or if she mistakenly gets the wrong ballot from a poll worker and votes in any election other than that of the school board, she's committed a crime that could lead to deportation.

Moreover, on the naturalization exam, applicants are asked whether they've ever registered or voted in a federal, state, or local election. For those who answer "yes," they must attach supplementary materials explaining the situation. Though the San Francisco Department of Elections will provide a letter verifying that the non-citizen voted legally, she may have to address the matter during her in-person interview with an immigration official, which Pang calls a "perceived complication" that can dissuade some voters.

Once at the polls, though, the Department of Elections makes the process as discreet as possible. "We tried to think of how can we keep the process the same for the non-citizens but still separate enough where we don't give them the wrong ballot," says John Arntz, the department's director. "We also didn't want the non-citizen voters to have to identify themselves as non-citizens at polling places, so we gave them the name of 'EDU voters' for education."

On Election Day, Arntz says he didn't receive any complaints from non-citizens or many questions from poll workers.

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That only 60 non-citizens voted last time doesn't discourage Pang. "The first election is not necessarily a good indicator of how well or poorly the city will do," she says. Plus, NCV has two main benefits that are separate from the actual turnout, according to Pang. One is the symbolic power of including all residents in the democratic process, which "tangibly redefines the idea of citizenship and who has a stake in the future of our city."

The other benefit is the outreach infrastructure that was created to campaign for and implement Proposition N, specifically regarding language access and materials that "address the needs and the fears and the concerns that we're hearing" from immigrants.

While both of these benefits seem abstract, Pang points out that they have a very concrete application: the census. To ensure an accurate count—and thereby receive the federal funding and political representation it deserves—San Francisco must reach three large and historically under-counted demographics: children, immigrants, and those who speak limited English. From their work on Proposition N, Pang says the city is well equipped to cover all three.

As for the optics of sanctioning NCV, those who believe in immigrant voter fraud will likely continue to do so regardless of what San Francisco does. When Trump claimed that he lost the popular vote because millions of non-citizens voted, he partially based that number on an academic study from 2014, whose methodology has been widely criticized, including by the professors whose data the paper relied on. Since then, the lead author has said that, "Trump and others have been misreading our research and exaggerating our results to make claims we don't think our research supports." Yet the claims keep coming.

Originally passed to cover only three election cycles, Proposition N will expire after the 2022 election unless the Board of Supervisors adopts an ordinance allowing it to continue. For now, the city of San Francisco seems to be supportive. In recent budget negotiations, $250,000 in funding was approved for the Immigrant Parent Voting Collaborative, of which Chinese for Affirmative Action is a member.

Pang says the group will use the money to focus on educating the community on their voting and immigrant rights, which is a worthwhile endeavor even if conservatives use Proposition N to discredit Democratic contenders for president. She says, "It's really more of a demonstration of political courage than political capital."

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