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Debate Club

Should Non-Citizens be Permitted to Vote?

Jamin Raskin and Matthew Spalding debate.

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Major cities from New York to San Francisco are considering measures to allow non-citizen residents to vote and some cities—like Chicago—already allow the practice. Advocates say that legal immigrants should have a say in choosing who represents them. Opponents worry that such voting could debase what it means to be an American citizen.

Should non-citizens be permitted to vote?

Jamin Raskin is Professor of Law at American University in Washington D.C. and Director of its Program on Law and Government. Matthew Spalding is Director of the B. Kenneth Simon Center for American Studies at the Heritage Foundation.

Raskin: 5/10/05, 07:54 AM
Greetings, Matthew. I'm delighted to examine the non-citizen voting question with you. As you know, non-citizen voting has very deep roots in American life, going back to the first days of the Republic. Virginia and Vermont were two original states that gave non-citizens suffrage rights so long as they met other voting qualifications, i.e. the property, wealth, race, and gender requirements. Over the course of our history, at least 22 states have granted non-citizens the right to vote in local, state and federal elections as well. (Some southerners blamed Abraham Lincoln's election as president on the alien vote in big cities.)

In my University of Pennsylvania Law Review article canvassing this lost history, I propose something far more moderate and limited: localities granting suffrage rights to all lawfully present adult residents in local elections only. This idea corresponds to the primary definition of "citizen" offered by many dictionaries: "the resident of a city or town." It is very hard to see why we would not want all lawful adult residents participating actively in the civic life of their communities. In many school districts in Los Angeles, San Francisco, and New York, for example, the commanding majority of parents of kids in public schools are immigrant non-citizens. Don't we want those people participating in school board, PTA, and city council elections? Don't we want them engaged with their kids' education? With so many citizens too busy, too tired, or too alienated to participate, why would we not want to invite everyone into the democratic process? Participation is a public good that benefits us all.

To anticipate one common criticism of the idea, it is said that granting non-citizens voting rights in local elections undermines the meaning of citizenship and reduces incentives for aliens to naturalize. On the contrary, a very frequent argument invoked for non-citizen suffrage by courts upholding the practice in the 18th and 19th centuries was that it would become a pathway to citizenship, not an alternative to it. Today we have millions and millions of immigrants in our midst who have not yet naturalized and are not integrated into the broader society. If we give people a taste of democratic participation and membership, they will hunger for more. This is one reason that I confine my proposal to local elections: to lead people down the path of citizenship.

The other reason is that, at the national level, my Canadian or Guatemalan or South African-born neighbors in Takoma Park, Maryland will, at least theoretically, have different interests than I do. (Think acid rain or trade policy.) At the local level, their place of birth or passport makes little or no difference. In Takoma Park, all of us—regardless of whether we are from Maryland, California, England, or Thailand—share common interests in efficient public services, beautiful parks, great schools, a reduction of crime and so on. This is the same reason that, in the European Union today, citizens of member states can move to other countries in the Union and pick up their local voting rights in the new country. There are lots of Brits voting in Parisian local elections and lots of French voting in London municipal elections.

I brought a non-citizen voting proposal to my friends and neighbors in Takoma Park more than a decade ago. It was surprising to people at first, controversial when the anti-immigration demagogues showed up, but finally entirely convincing to the people of the city, which changed its charter to allow all adult residents to vote. We have not become a magnet for undocumented people, as some predicted; we have not been overrun by immigration scofflaws seeking to hide out here (they are no safer here than anywhere else); and there has been no fundamental change in the political system, including—alas—the sadly low rates of participation and turnout.

The real issue we need to be addressing is how to get tens of millions more people engaged with the political process. Non-citizen voting can help a bit. It will remind everyone of the importance of active political participation and render visible and potentially active millions of new immigrants now set apart from our civic life. Why not?

Spalding: 5/10/05, 11:50 AM
Jamie, thanks for your initial posting. As you know, many things have very deep roots in American life, going back to the first days of the Republic. But that does not necessarily make them all right, or good.

The question seems to me to be whether there is a principled connection between the idea of citizenship and the privilege of voting. I think there is, and you, it seems, don't.

Giving out the privilege to vote as if it were a local parking permit not only demeans citizenship, but misconstrues the very nature of free government.

In the ancient world, race and bloodline determined citizenship, or more likely servitude to a king or tyrant. The new idea of government associated with the rise of equal natural rights—captured most famously in America's Declaration of Independence—changed all that. We hold it to be self-evident that all men are created equal, that they are endowed equally with fundamental rights, and that just government derives its powers from the consent of the governed. This universal truth is particularized in our system of constitutional government, which secures these natural rights for the people of the United States. Our on-going consent is reflected in lawmaking, voting, and other institutions of a self-governing people, such as our jury system.

Individuals who are not citizens do not have a right to American citizenship without the consent of the American people, as expressed through the laws of the United States. Through those laws, the people of the United States invite individuals from other countries, under certain conditions, to join them as residents and as fellow citizens.

The idea of granting one of the greatest privileges of citizenship to non-citizens—a phrase that seems to include permanent legal residents but also temporary residents as well as those who are present in violation of our laws—does demean the substantive concept of citizenship and undercuts the idea and process of naturalization.

I favor a clear, wide, and welcoming path to citizenship, consistent with our liberal principles of government, but that path is through legal procedures and meaningful steps that culminate in full citizenship, not in not in doling out the incidents of citizenship along the road to a mere technical outcome.

If the question is how to get more people to participate in our political system, a nation-wide non-citizen voting rights initiative is not the answer. By your own example, extending voting rights to non-citizens has made no difference even in the likes of liberal-minded Takoma Park, Maryland. No, the answer is not in watering down citizenship and voting but in making citizenship and voting more connected and meaningful, in principle and practice.

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Raskin: 5/11/05, 09:07 AM
You say the issue is "whether there is a principled connection between the idea of citizenship and the privilege of voting. I think there is, and you, it seems, don't." I would reverse that: I think that there is such a connection and you, it seems, do not.

One key sense of "citizen" is "an inhabitant of a city or a town." (Look it up.) A legal alien is a local citizen. In our federal system of government, we do not have a single, unitary definition of citizenship that is vertically imposed upon every level of government for every purpose. (This is an idea I thought the Heritage Foundation would embrace!) This is one reason why the Supreme Court has repeatedly signaled its acceptance of the practice of non-citizen voting.

You invoke the Declaration of Independence and the "the rise of equal natural rights." This is amusing since natural rights and natural law are precisely the basis upon which numerous courts in the 18th and 19th century insisted upon the lawfulness of alien suffrage. Indeed, if you read my law review article (I know this is no simple task!), you will find courts not only upholding non-citizen voting at the local level but even suggesting that it is mandatory as a matter of Lockean natural right. The argument was that aliens own property; pay local, state and federal taxes; fight and die in our wars; are subject to military conscription and every other law; and it would simply be wrong to deny them the franchise. How do you get from a natural rights argument to denying local voting rights to taxpaying, draftable, law-abiding residents? At the very least, there is nothing logically compelling about such an argument.

You say that the solution to the problem of poor rates of electoral participation by people who are U.S. citizens lies "in making citizenship and voting more connected and meaningful, in principle and practice." Then can we agree that we need a constitutional amendment guaranteeing the right to vote and to be represented to all U.S. citizens? As you know, we are one of only a handful of countries on earth that does not have a right-to-vote provision in our Constitution, which causes major problems and is a big embarrassment for a nation aggressively exporting democracy. We have more than nine million U.S. citizens who are disenfranchised: more than four million who live in Puerto Rico, American Samoa, Guam and the Virgin Islands (see the current litigation going on in the First Circuit about whether this is consistent with international law); nearly 600,000 in Washington, D.C. who have no voting representation in Congress; and five million citizens who have lost the right to vote because of felony criminal convictions, including a million and a half who have done their time but lost their voting rights for life in states like Florida, where 600,000 ex-felons can only get their voting rights restored by getting an electoral pardon from Governor Jeb Bush. Would I be right to assume that you want all of these people to get the right to vote because they are U.S. citizens? I would feel a lot better about drawing a very thick bright line between citizens and aliens if all citizens at least had voting rights. Can we make common cause on that?

Finally, where do you draw the line on disenfranchising permanent resident aliens? Should foreigners who own stock in U.S. corporations be able to vote in shareholder proxy elections? Why or why not? Will you campaign to end this pervasive practice? What about non-U.S. citizens voting in union elections or in faculty meetings? I believe I just debated a delightful Irish gentleman who works with you at Heritage about the culture war (he sees a lot of moral decline in our country!). Should he get a vote at Heritage? (Does anyone get a vote at Heritage?)

Spalding: 5/11/05, 01:11 PM
Citizenship has ancient roots. The word derives from the Latin civis and civitas, and in turn the Greek polites and polis. Thus we get the words citizenship and city. But these concepts went well beyond mere physical presence to mean participating in ruling and being ruled. Aristotle was the first to give a full account of citizenship; that's a good place to start to understand the classical meaning of the word. But, of course, America is not an ancient city-state, and for that we can all be grateful.

Our political community is grounded on the principles of the Declaration. But the principle of equality, which justifies and gives rise to consent, also means (indeed, must mean) majority rule and the rule of laws formed by that consent. Once a people forms a community, no one has a natural right to join it without the consent of those being joined. Thus Congress has the constitutional responsibility "[t]o establish an uniform Rule of Naturalization" that sets the conditions of immigration and citizenship and to ensure the fairness and integrity of the legal process by which immigrants enter the country legally and, in many cases, become American citizens.

In short, the natural rights grounding does not argue for anarchy or pure democracy, or giving rights of voting based on mere presence, but for the constitutional rule of law and for completing the process of full republican citizenship. We don't owe non-citizens the franchise as a matter of right, but we do owe them a fair chance a becoming citizens, according to our laws, and thus having their rights and liberties protected in our constitutional order.

As for the Constitution and voting, I seem to recall an amendment in particular that states that "the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude."

As for the territories, the District of Columbia and felons, each category is covered by constitutional provision. I am all in favor a pursuing statehood for territories, there is nothing wrong with that, and there is a process for that to proceed. I think the easiest solution for DC is to give the residential areas back to Maryland, and limit it to only the federal district, respecting the intentions of Article I, section 8. As for felons, the Fourteenth Amendment section 2 protects the right to vote except for rebellion "or other crime," a reference to long-standing state (and common law) prerogatives restricting felons.

I must confess that your last point makes no sense to me. We are discussing voting as an important component of citizenship, not as shareholders or in terms of union membership. Failing to see that distinction is important, as my point is that citizen voting can only be understood in light of and as part of the larger compact or community of citizens, members of the same civitas.

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Raskin: 5/12/05, 02:15 PM
I'm sorry that our dialogue seems to have run aground so quickly. You start off with the promising suggestion that you believe in a natural rights conception of voting and participation. This leads us right to the pervasive 19th century argument that aliens—as property-owners, taxpayers, soldiers, military conscripts, employees, and members of the community—should be treated as citizens of their local communities. But you summarily reject this claim, not exactly explaining why. Instead, you say that "the natural rights grounding does not argue for anarchy or pure democracy, or giving rights of voting based on mere presence, but for the constitutional rule of law and for completing the process of full republican citizenship." But, of course, the "constitutional rule of law" allows for alien suffrage at the local level, which has deep roots in our democratic history. And, as I have tried to argue, the practice of non-citizen voting in local elections encourages people to "complet[e] the process of full republican citizenship."

Perhaps we should take the issue in instrumental terms. Today, one out of five residents of California is a non-citizen, or over 4.6 million people. There are twelve localities in California where non-citizens are an outright majority of the population. In Los Angeles, noncitizens make up one-third of the adult population. I cannot believe that you think it is in the public interest to keep these people disenfranchised for three, five, ten or fifteen years, or indeed for life. (The naturalization backlog is huge, with new obstacles emerging all the time.)

In Dunn v. Blumstein, the Supreme Court found that it violates Equal Protection for a state to make citizens wait even one year before they get the right to vote. In Carrington v. Rash, the Supreme Court struck down Texas' ban on voting by military service members temporarily stationed in the state. In the college student voting cases, the courts found that it is impermissible to keep young citizens from voting where they live at school for two years or four years even if most of them will leave after graduation. In other words, our cases have consistently recognized the powerful interests and claims of people who live in a place to participate there.

The decline of alien suffrage at the time of the rise of xenophobic and anti-immigrant sentiment around the turn of the 20th century is instructive. States used to have the position that aliens who were members of the community should have full voting rights, but this was either during the time of strict gender, property and race qualifications (the 18th and early 19th centuries) or during the time when states were eager to attract new immigrants (the mid to late-19th century). When immigrants turned swarthy and Mediterranean, and when the country turned on foreigners, the states retracted the policy of alien suffrage. This is their prerogative, I believe, as aliens constitute an "optional electorate," in Professor Gerald Neuman's useful formulation. But with many millions of disenfranchised permanent residents in our midst, we should encourage people to rethink the policy posture of denying aliens the right to vote in local elections.

As a way to open up our minds on the subject, I posed the question of whether you favor allowing noncitizen shareholders of corporations to vote in proxy elections. This troubles me far more, although apparently it does not trouble you. Many, if not most, noncitizen shareholders voting in Exxon or General Dynamics elections do not live here, have no necessary allegiance to our communities or country, and do not have to live with the consequences of corporate decisions. You seem to feel that there is some obvious reason that non-resident alien shareholders should be able to participate in private corporate elections but long-term permanent resident aliens should not be able to vote in municipal corporation elections, such as school board elections where their kids go to school. I am afraid I do not see the logic of this position. It smacks of a kind of wealth or property qualification for participation by aliens in our institutions.

I wish we could tease out a bit more the concrete political and cultural meanings of your stance. Who are the people that you don't want participating in your local elections where you live? Most of the new immigrants I know love America and are the kind of people we should have involved in our civic life.

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Spalding: 5/13/05, 07:52 AM
My position is really quite simple. United States citizenship is not based on religion or race or tradition, but on the universal truth of human equality, and thus a recognition of equal rights. That truth and those rights are made particular in a regime of law and constitutional government, arising out of the consent of the governed. While this natural rights grounding implies that anyone might become an American citizen, it in no way implies or necessitates that aliens be made citizens as a matter of right. To say that all men are created equal does not mean that all men have a right to be an American citizen.

The very nature of the principles upon which the United States is established encourages immigration and promotes the transformation of those immigrants into Americans—welcoming newcomers while insisting that they learn and embrace America's civic culture and political institutions, thereby forming one nation from many peoples. The result has been a strengthening of our social capital, a deepening of our national patriotism, and a continuing expansion of our general economy.

This model has worked precisely because we have maintained a meaningful distinction between non-citizens and citizens, on the assumption that American citizenship means something more than joining the local PTA. (The various cases you note underscore this point.) I think it good to keep this distinction clear, and reserving the benefits of citizenship to citizens is a primary way to do that. The argument of many, perhaps yourself, is to blur this distinction as much as possible, in the name of some sort of cosmopolitanism that denies national distinctions. I think that is an incorrect understanding of politics generally (and inconsistent with the natural rights grounding of American constitutionalism), and bad for citizenship, and for immigrants wanting to be citizens. Immigrants, by my experience, are the last who want to water-down that which they seek to achieve.

I don't object if legal permanent residents participate in local matters. If a few Takoma Parks fiddle with such ideas, it's not a national problem; there are always exceptions here and there, and that doesn't necessarily undermine the rule of law. The question is not what is the exception, though, but what ought to be the rule. Local elections, but why not state and federal? Permanent residents, but why not temporary residents, or illegal residents? What I object to is the claim that non-citizens somehow are being disenfranchised by us and have a right to vote here as a matter of principle. That claim denies the very idea of regime-based citizenship. "Non-citizens" in the United States, after all, are actually citizens of another nation, with other allegiances. Once you have crossed that line, I don't see that much of a distinction remains. Why have citizenship at all?

Raskin: 5/13/05, 03:23 PM
Thank you for this illuminating post. As we reach the end of the week, I will summarize what I hope we agree upon now and, in so doing, respond to your specific questions to me.

(1) We seem to agree that non-citizen voting is lawful at all levels under the U.S. Constitution and has been practiced for most of our history, though much less so in the last century. When the nation began and especially after the Civil War, alien suffrage was very much part of what you call "America's civic culture and political institutions." It was used as a way to welcome people to American democracy and to train them in the habits of our politics.

(2) We seem to agree that non-citizen voting in federal elections does not now make sense. Although the merits of non-citizen voting in state elections are debatable, Article I of the Constitution defines eligibility for voting in federal elections by virtue of eligibility to vote in state elections, so it follows that we cannot restore alien suffrage in state elections without giving aliens the right to vote in national elections. Reciprocal alien suffrage in national elections is something that the world's democracies, including the U.S., have simply not put on the agenda. Thus, non-citizen voting in state elections also does not make sense today.

(3) There is a growing movement for non-citizen voting in local elections, where the arguments for alien suffrage are at their strongest and arguments against are at their weakest. This is obviously not a movement you are going to contribute your time or money to, but you "don't object if legal permanent residents participate in local matters. If a few Takoma Parks fiddle with such ideas, it's not a national problem. . ." These statements strike me as about as good as I am going to get from you and I welcome them. At a time when we have more than twenty million non-citizens legally resident in the country, I am most eager for people to keep an open mind about expanding the franchise at the local level as a way to improve participation and the quality of local decision-making.

I am not fully satisfied with your account of natural law and political democracy. You say that American citizenship is based "on the universal truth of human equality, and thus a recognition of equal rights." Yet you then assail arguments that "blur" the distinction between citizens and aliens "in the name of some sort of cosmopolitanism that denies national distinctions." This "cosmopolitan" democratic theory, you say, "is an incorrect understanding of politics generally" and "inconsistent with the natural rights grounding of American constitutionalism." I am having a tough time reconciling these two sentiments.

Your first statement comes close to capturing the truth of America's highest aspirations. Our last great Republican president—Abraham Lincoln—revived the spirit of the Declaration of Independence at Gettysburg when he spoke of "government of the people, by the people and for the people." Yet, recall that, in the face of slavery, racism, and myriad inequalities and injustices, the founding Jeffersonian commitment to "human equality" and "equal rights" has only been concretized through centuries of profound social and political struggle: Civil War, social movements, labor organizing, and political unrest. The "universal truth of human equality" that you invoke as though it has been divinely decreed has been violently denied at every stage of our history by those with power and privilege and has only become something more than a cruel joke because of those people in our history—both famous and not, from Lincoln and Frederick Douglass to Susan B. Anthony and FDR to Martin Luther King and Cesar Chavez—who gave their lives to the always dangerous struggle for universal justice, freedom, and equality. That struggle continues today with the movement in Congress to pass a constitutional amendment guaranteeing the right to vote to all citizens (the amendment you oppose).

We need to remember that the democratic idea that has been the engine of social progress for us was neither created nor ever successfully advanced by xenophobic feeling or hostility to immigrants. On the contrary, our founding democratic ideology, like the French version, was based on a theory of the rights of men all over the world. The model democratic revolutionary was Tom Paine—a citizen of England, the United States, and France alike—who wrote Common Sense and The Rights of Man and called for democratic revolution in nations all over the world. Indeed, international civic solidarity infused both the American and French Revolutions. In the very first sentence of the Declaration of Independence, Jefferson invoked a "decent Respect to the Opinions of Mankind." We had many foreigners fighting on our side against the British and received a lot of help from France. When the new nation began, there was only the weakest idea of national citizenship: the states were still naturalizing people, and non-citizens voted in many places all over America. You want to imagine a rigid bright-line distinction between citizens and aliens as foundational, but that vision emerged much later, about a century ago. The deeper American tradition is the somewhat more humble understanding that, save for the Native Americans whose own fate provides yet more crucial context to the discussion, we are all immigrants here. And that fact is to the great credit and glory of America.

Indeed, blanket hostility to immigrants and foreigners has always been destructive of democratic progress, liberal values, and the rule of law even for citizens. Our willingness to uproot, relocate, intern, detain and incarcerate Japanese foreign nationals during World War II quickly morphed into a willingness to do the same to tens of thousands of American citizens. And a government that takes the position that enemy foreign combatants that it holds in custody have no right against torture will not only produce barbarities like Abu Graib but also fervently held claims by the executive branch that it can hold U.S. citizens indefinitely without due process, habeas corpus protections, or the right to counsel. We deny the humanity of other people, even our prisoners of war, at our own risk.

I was going to close by trying to locate our debate in the context of American foreign policy, which places great emphasis on spreading democratic elections and the right to vote. But the point is obvious enough and I changed my mind after I just received a wonderful e-mail from Professor Ron Hayduk, whose new book, Democracy for All: Restoring Immigrant Voting in the United States, is about to be published. With a team of student researchers, Hayduk has been able to document that there have actually been 40 states and federal territories that granted non-citizens voting rights at different points in our history. His list speaks far more eloquently than any closing statement I can muster.

Alabama: 1868-1901
Arkansas: 1874 -1926
Colorado: 1876-1902
Connecticut: 1776-1819
Delaware: 1776-1831
Florida: 1868-1894
Georgia: 1868-1877
Idaho: 1863-1890
Illinois: 1818-1848
Indiana: 1851-1921
Kansas: 1854-1918
Kentucky: 1789-1799
Louisiana: 1879-?
Maryland: 1776-1851 (for state and federal elections; six towns allow noncitizen voting today)
Massachusetts: 1780-1822
Michigan: 1835-1894
Minnesota: 1849-1896
Missouri: 1865-1921
Montana: 1864-1889
Nebraska: 1854-1918
Nevada: 1848-1864
New Hampshire: 1792-1814
New Jersey: 1776-1820
New York: 1776-1804
North Carolina: 1704-1856
North Dakota: 1861-1889/1909
Ohio: 1802-1851
Oklahoma: 1850-1907
Oregon: 1848-1914
Pennsylvania: 1790-1838
Rhode Island: 1762-1842
South Carolina: 1790-?
South Dakota: 1850-1918
Tennessee: 1796-1834
Texas: 1869-1921
Vermont: 1767-1828
Virginia: 1776-1818
Washington: 1850-?
Wisconsin: 1848-1908
Wyoming: 1850-1899

Spalding: 5/13/05, 05:02 PM
Actually, Jamie, there is very little here upon which we agree.

(1) I do not agree that non-citizen voting is lawful at all levels under the Constitution. It is clearly unconstitutional at the federal level. Even where it might be allowed here and there, it violates the spirit of the Constitution by contradicting the principles upon which it is based.

(2) I do not agree that non-citizen voting in federal elections merely "does not now make sense," and is "simply not put on the agenda." That ignores what I have tried to explain as a principled disagreement with the whole idea.

(3) Don't take my lack of objection to exceptions as a general agreement either. The reason I don't object to a few Takoma Parks is because it doesn't matter that much in the scheme of things; I do object to a broader movement "about expanding the franchise" to non-citizens as a matter of right. I don't know of any evidence that it will improve participation, or the quality of decision-making. But, more importantly, yet again, it's the principle that matters. And, as far as I can tell, you've not explained one for your movement. That's why I don't think it is going anywhere.

What you have done, though, is prove what I feared was the case, that the call for non-citizen voting is actually a veiled attack not only on the idea of citizenship itself but also on the very principles on which that citizenship is based, what you see as little more than "a cruel joke," that has been "violently rejected throughout our history." That is, until modern liberalism came along to liberate us from those untruths.

Here, I thought we were having a reasonable discussion about voting but scratch the surface and the real sentiments come out. First the accusations of "xenophobic feeling" and "blanket hostility to immigrants." Next thing you know, I'm responsible for Japanese internment and torture at Abu Ghraib. Please.

In the end, Jamie, your argument is not with me, but with America. In the end, it's not about voting, or immigrants, but a deep rejection and dislike of the fundamental principles and constitutional practices of the United States. Concerning that rejection, and that dislike, I strongly disagree. So do my fellow immigrants.

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