Repeal the unconstitutional ban on non-citizen voting
“Where to begin? — that was the question at what point to make
the first mark? … All that in idea seemed simple became in practice immediately complex; as the waves shape themselves symmetrically from the cliff top, but to the swimmer among them are divided by steep gulfs, and foaming crests. Still the
risk must be run; the mark made.” — Virginia Woolf, To the Lighthouse
The day after the 2016 election, Mesha Gessen painted a pitch black picture of the coming four years. Institutions, she prophesied, would not save us from Trump’s racist broadsides on liberal democratic values. “It took Putin a year to take over the Russian media and four years to dismantle its electoral system; the judiciary collapsed unnoticed.” While the U.S. Supreme Court has thus far survived (although hardly unscathed given the Kavanaugh appointment) it has proven powerless to stop Trump’s ruthless attacks on immigrants and undocumented people.
Time and again it has played out like this: Trump issues an executive order or one of his agencies promulgates a new rule that is a radical departure from the status quo. This is challenged in the federal court system. A judge in a circuit not yet stacked with Trump-appointees deems it unconstitutional and issues a preliminary injunction. The case makes its way to the Supreme Court, which either finds the executive action lawful, which was the case with the Muslim ban, or strikes it down as unconstitutional. The latter has not yet happened, but even if the odd case — maybe the repeal of DACA or the redefinition of “public charge” to include anyone who has ever received cash assistance — fails to pass muster, it changes little.
We are in the midst of broadside attack on our immigration system; propping a few holes in the hull is not going to stop us from sinking. The end goal, as Trump’s éminence chauve Stephen Miller has made perfectly clear, is to take us back to a pre-1965 system with racial quotas under the guise of a “merits” based system.
While it is important that we prop the gaping holes, we also need to go on the attack. We have to unleash our own volleys and make our own mark; we have to be radically proactive.
Repeal the voting ban
We should urge Congress to repeal 18 U.S.C. § 611 — a federal statute that makes voting by non-citizens a felony and grounds for deportation in all 50 states. Not only does it fly in the face of US history as many if not most states used to allow groups of immigrants (what we today would call permanent residents or green card holders) to vote in state and federal elections; it is also facially unconstitutional.
The plain text of the Elections Clause of the US Constitution as well as recent Supreme Court cases are unambiguous. Congress cannot limit the franchise. As long as a state comports with the 14th, 15th, and 26th Amendments, and as long as there are not different voting requirements for the state House of Representatives and federal elections, a state is free to expand the ballot. In Arizona v. Inter Tribal Council of Arizona, Justice Scalia made clear that “the Elections Clause empowers Congress to regulate how elections are held, but not who may vote in them.” The framers feared capture — that a current Congress would entrench its power and sidestep the checks and balances by tweaking voting requirements so as to ensure that its members would be reelected — and delegated the power to the states.
More than an academic exercise
If Congress refuses to entertain repeal, we should consider having the courts strike the statute down as unconstitutional, although this may require some creative arguments as to standing. There are several reasons for attacking the voting ban.
First, challenging the constitutionality is more than an academic exercise. When volunteering for the Asylum Law Project in Chicago, I came across two pending cases of longtime permanent residents in deportation proceedings because they were told by a DMV official to tick the voting registration box on the form. Of course, anecdotal evidence only goes so far. I have also submitted freedom of information requests to the three agencies dealing with deportation (EOIR, USCIC, and ICE) to get accurate statistics on how many peoples’ lives are affected by the unconstitutional law and whether there has been an uptick since Trump took office.
Second, at a time when most of the challenges to federal immigration policy are reactive, challenging the statute and getting a discussion going would be radically proactive — a way of moving the Overton window back to its pre-1996 frame. I have no idea where such a discussion would lead, but I know that it is sorely needed. Perhaps we will see ballot initiatives to amend state constitutions and allow for non-citizen voting? Or are we more xenophobic today than we were at the turn of the last century?
Finally, by repealing or striking down the statute we would also pull the rug from under the administration’s feet and render moot the rationale behind, for example, adding a citizenship question to the census.
Unconstitutional from the get-go
18 U.S.C. § 611 was part of the Orwellian 1996 immigration bill IIRIRA, which vastly expanded the classes of immigrants deemed deportable. If you were charged with a state misdemeanor, for example, the bill could turn this into an “aggravated felony.” The voting amendment passed with no debate by bipartisan voice vote. But according to its sponsor, Senator Alan Simpson, it had been vigorously challenged on constitutional grounds during the mark-up phase. See C-SPAN, Senate Session, April 24, 1996. Amendment to S.1664 (starting at 1:59:45).
Simpson references the plenary powers of Congress over immigration matters and throws in a bit of case law for good measure; some of the cites are accurate, some are mangled, and some are made up out of whole cloth. Except for this being a morally questionable strategy, it is also revealing. It is a testament to how difficult it was to provide a constitutional foundation for the amendment. If it was on shaky constitutional ground in 1996, it would be much more difficult to defend today after Scalia’s holding in Arizona.
Unprecedented federal powers
Interestingly, all pre-1996 attempts from the federal government to preempt non-citizen voting that I have discovered were deemed unconstitutional at the drawing board. During World War I, for example, a Nebraska attorney penned a letter to Wilson asking him to issue an executive order or ask Congress to suspend voting by “enemy aliens” in the states where permanent residents were allowed to do so. Intrigued, Wilson passed the letter along to his AG, who concluded that the federal government cannot dictate voting qualifications (although he did suggest that Congress could revoke “green cards” for everyone — not just German nationals — to sidestep the state requirements).
Even in a time of national emergency when the US had declared war on Germany, the federal government could not prevent states from allowing non-citizens to vote. Voting requirements, AG Bettman makes clear, is a matter for the states.
Eighty years later a sweeping federal ban on non-citizen voting passed with no debate and bipartisan support. To understand the extent to which turn-of-the-century xenophobia has been normalized, it is worth looking into the history of non-citizen voting rights restrictions.
The racist history of restricting the franchise
Starting around 1890, states that had previously allowed non-citizens to cast their ballots started revoking that right. In Minnesota, the sponsor of an 1896 constitutional amendment did not mince matters:
People were pouring in from countries that were simply not “acceptable.” Schurmeier’s modern-day counterparts might talk about ****hole countries, and the the rationale behind the amendment is strikingly similar to the underpinnings of the current administration’s immigration policies. Ban entry from unacceptable countries; reduce the refugee quota to an all-time-low; move from a family-based system to a “merits” based one to attract affluent European expatriates instead of immigrants and refugees fleeing war and persecution.
Although the Minnesota amendment ultimately passed by referendum, it did so amid heated debate on the moral and legal right to disenfranchise a large segment of the voting base — 100,000 non-citizen voters by some estimates. “Can the right to vote be taken away from those who now enjoy it?” an editorial in the St. Paul Daily Globe pondered. Why shouldn’t recent U.S. arrivals be able to vote? They pay taxes. They are members of the community.
A century later, the amendment, which in one fell swoop preempted all 50 states from ever allowing non-citizen voting again, passed with bipartisan support and little scrutiny — a tragic testament to how we have allowed turn-of-the-century xenophobia to inform and color our ideas of citizenship. We have internalized what used to be a politically and racially fraught notion of citizen-only voting to the extent that we now think of it (if at all!) as a politically agnostic right. The way it’s always been or what the Framers intended.
It is time to heed the advice of the 1896 editorial and do some serious thinking on the subject. The problem is, though, that we cannot even get a discussion doing on the state level as long as the unconstitutional federal ban on non-citizen voting stands.
18 U.S.C. § 611 must be repealed.
