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I saw this question about what states that don't use voter ID do to ensure non-citizens don't vote, and the answer seems to be little, if anything. Given the current political climate (where some states want to be "sanctuaries" for non-citizens), it's not hard to see a state like California (which is openly defiant on the issue) looking for ways to take the issue even further.

Let's say California decides to go further and passes a law that openly allows non-citizen residents to vote in California elections (i.e. they move beyond mere non-enforcement to suborning it). In the current political climate there would be open angst at such a move, but what could be done from a practical standpoint about the issue? It appears to run afoul of Federal law, but it's not clear how you would enforce it in a state where they ignore some Federal laws already.

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    Befuddled French reader here. You mean I could go to California as a tourist and vote without showing any ID? Really? – peufeu Mar 27 '18 at 14:59
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    @peufeu : it is heavily debatted in this question : politics.stackexchange.com/questions/29879/… – Evargalo Mar 27 '18 at 15:01
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    @peufeu Not in that sense. I don't think anyone would allow "tourist voting". But let's say you went to CA on a tourist visa and overstayed to take up permanent residence. As things stand right now, you could (by showing residency) vote in CA without changing citizenship (the state asks few questions of its voters). I'm asking what would happen if they just changed the law to that effect. – Machavity Mar 27 '18 at 15:21
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    "As things stand right now, you could (by showing residency) vote in CA without changing citizenship (the state asks few questions of its voters)." No, you couldn't. – Patrick Wynne Mar 27 '18 at 16:48
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    @Machavity It is not legal to murder someone, but it is very possible to murder someone. Murder also does not require you to provide your name and address to the authorities in advance. You are arguing against something that is already illegal, and investigated. Just because you put your name on the paper doesnt mean you "successfully voted". The simple fact of that matter is that the same politicians who will argue for "Voter ID" will also argue against free and easy to obtain national identification. They only care about discouraging poorer people from voting. – Tal Apr 2 '18 at 19:28
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What could be done to US states that openly allow non-citizens to vote?

I notice that the other "answers" don't actually address this, which is presumably the question at hand. Not which law is supreme or whether it runs afoul of federal law. As I understand it, the question is what can be done if California or another state ignores binding law in terms of electing federal representation. The presumption is that the law is constitutional and supreme.

TL;DR: The answer to the original question, as stated, is probably nothing. Nothing can be done "to" states that openly allow non-citizens to vote. However, that does not mean that nothing can be done. The states require the active assistance of the federal government in having their voting results count. The federal government could refuse to accept the tainted election results.

As a general rule, there is no "punishment" for states that do not follow federal law. At best, withholding of funds related to that federal law. Instead, there are mechanisms to enforce federal law. For example, Dwight Eisenhower sent military troops to Little Rock, Arkansas to enforce Brown v. Board of Education, which was a legal decision mandating desegregation nationally (although it was determined based on conditions in Topeka, Kansas).

In this particular case, the most likely mechanism would be to disallow election results that were not in compliance with federal law. So if the state allows non-citizens to vote, the federal government might throw out some or all of the state's votes as invalid. Again, this is not a punishment, but an attempt to work around the recalcitrant state. However, this would have the effect of disregarding the state's wishes in terms of representation.

The most modest result is that nothing would actually change. Some votes would be thrown out as tainted, but the final result would stay the same. More impactfully, the election result might change, so the federal government recognizes a different winner than the state does. At the extreme end, Congress might refuse to certify an electoral college result, so only the other state votes would count.

Refusing to certify the electoral college vote has happened in the past. In the presidential election of 1876, an Electoral Commission was appointed which chose between electoral college results offered by some disputed states. This had the effect of swinging the election from Samuel Tilden to Rutherford B. Hayes.

In Congress, this could result in the state's choices for Representative and/or Senator not being seated.

It's not clear to what extent this "punishes" the state. If the state did not allow non-citizens to vote, presumably it would have had different election results. Perhaps the state would prefer no representation to that different representation. Perhaps it would make no difference. For example, Congress currently has Republican majorities in both chambers and Donald Trump won. If the 2016 results had been refused, Congress would still have Republican majorities in both chambers and Trump would have won.

It's also worth noting that these results might not happen. If Congress is controlled by people who sympathize with the state, then Congress might accept the election results even with non-citizen votes. So if the Democrats take the House and Senate in 2018, they will determine what results are accepted in 2020.

If the Supreme Court were to get involved, it might create a constitutional crisis. In theory, accepting election returns is a prerogative of the legislative branch. But they have passed laws purportedly binding them. If they do not follow those laws, can the Supreme Court overrule Congress? We don't know, as it has never been tried.

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Let's say California decides to go further and passes a law that openly allows non-citizen residents to vote in California elections [...] It appears to run afoul of Federal law

Depends on what you mean by "California elections". There is currently a federal law against non-citizens voting in an election for a federal office (president/vice president, senator, or representative), but there is no federal law against non-citizens voting in any other state or local election. In fact, several cities and towns in Maryland currently allow non-citizens to vote in local elections, and, historically, over 40 states or territories have, at some point in the past, allowed non-citizen voting in some elections. There would presumably be no legal problem if California were to hypothetically allow non-citizens to vote in all elections except those for federal offices.

So maybe you are asking what if California hypothetically allows non-citizen voting in all elections that it runs, including those for president/vice president, senator, and representative. It would conflict with a federal law, and then there would probably be litigation in the courts about whether that federal law prohibiting non-citizens voting in elections for those offices is constitutional.

For one, there might be question about what gives Congress the power to restrict who can vote for those elections. Article I, section 4, clause 1 of the Constitution gives Congress the power to make or alter regulations about the "Times, Places and Manner of holding Elections for Senators and Representatives", but it's unclear whether that includes determining who can vote.

For elections for senators and representatives, there might be a constitutional argument that if non-citizens can vote for state legislature, they should also be able to vote for US senators and representatives, because the US Constitution specifically says that electors for senators and representatives "shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature" (in Article I, section 2, clause 1 for Representatives; and in the 17th amendment, clause 1 for Senators), so arguably if non-citizens are eligible to vote for the larger branch of the state legislature, they must also be eligible to vote for US senators and representatives, and Congress should not be able to restrict it by statute.

As for the presidential election, states actually choose "electors", and those electors go to the Electoral College. States can choose electors in any way that the state legislature chooses (Article II, section 1, clause 2), not just through a popular election. In the early 19th century, most states did not hold popular elections for presidential electors and the legislature just chose them directly; as time went on, more and more states changed to doing popular vote for them, but as recently as 1876, the Colorado legislature appointed its electors rather than hold an election because it was newly admitted and didn't have the time to do so. Since it's pretty much completely up to the state legislature, why can't it choose to hold an election by the entire population (including non-citizens, or even minors if they really wanted to)? It's unclear how much say Congress has in this process and whether it has the ability to restrict who can vote if the state legislature chooses to hold an election.

  • Oh wow, I never realised that it would be an issue of state sovereignty, as it is almost held as a matter I'd indisputable dogma that the franchise can only be held by natural born or naturalised citizens, who have not been disenfranchised by virtue of criminal conviction! It could be a matter for the Supreme Court to decide, bless the founding Father's for their wisdom in creating all this institutions – hlecuanda Apr 1 '18 at 12:41
  • This answer may correctly describe a situation that existed in the past, but it ignores a number of Amendments to the US Constitution that exist today. – Ben Voigt May 2 '18 at 18:44
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This is answered constitutionally by Article 6 clause 2 of the constitution.

... the Laws of the United States...shall be the supreme Law of the Land.

In case of a positive law that allows non-citzens to vote, the Californian law would be "trumped" (no pun intended) by Federal law. Federal agencies may have difficulty enforcing a law without the support of a state, but that doesn't change the constitutional position that constitutional Federal law is superior to State Law and "judges are bound thereby".

  • Wouldn't there still be a case under the 10th amendment that this is a case of "State's rights"? – origimbo Mar 27 '18 at 17:23
  • Hence I say "constitutional Federal law" If the law is constitutional it is superior to state law. If it exceeds the powers implied by the constitution, it is not "constitutional" and the 10th amendment applies. – James K Mar 27 '18 at 18:28

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