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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?
    – bobflux
    Commented Mar 27, 2018 at 14:59
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    @peufeu : it is heavily debatted in this question : politics.stackexchange.com/questions/29879/…
    – Evargalo
    Commented Mar 27, 2018 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
    Commented Mar 27, 2018 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. Commented Mar 27, 2018 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
    Commented Apr 2, 2018 at 19:28

6 Answers 6

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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.

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  • 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
    Commented Apr 1, 2018 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
    Commented May 2, 2018 at 18:44
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    @BenVoigt such as?
    – phoog
    Commented Dec 10, 2021 at 13:48
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    @BenVoigt Not obviously any that are relevant to the right of non-citizens to vote. The amendments relevant to the franchise say "the right to vote shall not be abridged on the basis of . . . ." but the franchise isn't affirmatively defined in the U.S. Constitution.
    – ohwilleke
    Commented May 16 at 1:02
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    @hlecuanda As a couple of other datapoints, the E.U. protects the rights of non-citizens to vote in certain local elections, and New Zealand, at least until very recently (it may still, but I don't know that for a fact) allowed non-citizens who had resided there for sufficiently long (maybe a year) to vote in its elections.
    – ohwilleke
    Commented May 16 at 1:04
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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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    The question is not asking about a hypothetical federal law prohibiting noncitizens from voting in state elections; it is asking about an actual law that the asker mistakenly believes prohibits noncitizens from voting in state elections. In fact, there is no such law, and the law linked in the question specifically lays out conditions under which states can permit noncitizens to vote in state elections.
    – phoog
    Commented Dec 10, 2021 at 13:55
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If California allowed non-citizen residents to vote in state and local elections, there would be no conflict with federal law, and therefore it's not clear why there would be a need to "do anything" to California. Nevertheless, Congress does have plenary authority to regulate the terms of an alien's admission to the United States. Congress could change the law to make it a deportable offense for an alien to vote in any election in the United States, even when authorized by state law. However, Congress doesn't have any authority to control how California conducts its state and local elections (unless acting pursuant to its enforcement power under the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, or Twenty-Sixth Amendments). Therefore, Congress can't actually force California to not count votes by non-citizens. Under current "anti-commandeering doctrine" precedent, Congress also can't force California to help enforce the law against non-citizen voting (e.g. by handing over to ICE a list of non-citizens who are registered to vote).

Now, if California allowed non-citizen residents to vote in federal elections, there would seemingly be a conflict with federal law.

Let's look at the presidential election first. Article II gives Congress power only to set the "Time of chusing the Electors" (Section 1, Clause 4), not who may vote for presidential electors. Again, the Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments give Congress additional enforcement powers, but none of those amendments give Congress the power to prohibit non-citizen voting. So, in this case, it would seem that the federal law that categorically prohibits aliens from voting in federal elections, even when authorized by state law, is unconstitutional. But courts apply what is called "constitutional avoidance": they attempt to interpret Acts of Congress in a manner that avoids possible issues of unconstitutionality. A way to interpret 18 USC §611 in this case is that it merely acts as a trigger for 8 USC §1227(a)(6) and 8 USC §1182(a)(10)(D), i.e., it's still a deportable offense for an alien to vote in a federal election (and results in permanent inadmissibility), even when state law authorizes it. But as in the case with state and local elections, Congress doesn't actually have the power to prevent those votes from being counted.

For congressional elections, the controlling Supreme Court precedent would appear to be Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. 1 (2013), in which it was held that the Elections Clause doesn't empower Congress to determine who can vote in congressional elections; that matter is controlled by Article I, Section 2, Clause 1 and the Seventeenth Amendment. So, if California allowed non-citizens to vote for the California State Assembly, then according to the constitution, they would also have the right to vote for California's US senators and US representatives, which would again make 18 USC §611 unconstitutional unless it were interpreted solely to act as a trigger for the relevant immigration provisions. However, this case is more interesting because it could be argued that Article I, Section 2, Clause 1 and the Seventeenth Amendment create an individual constitutional right whose exercise cannot be penalized by Congress. In other words, the constitutional question here might be similar to the question of whether Congress could make it a deportable offense for aliens to, say, burn a United States flag (which is protected by the First Amendment). While the courts have upheld laws that deny naturalization to aliens who have exercised their First Amendment rights in certain ways, it is less clear whether it would be permissible to revoke permanent resident status that was lawfully granted. Of course, there is also a large population of aliens in California who are present in violation of federal immigration law, and they couldn't raise "you can't deport me for exercising my constitutional rights" as a valid defense against removal.

In all cases, the federal government can't do anything to California. They can only go after the non-citizens who voted. (Note that non-citizen nationals of the United States, who are not aliens, are a special case. No state grants them the right to vote in federal elections, but since 18 USC §611 only applies to "aliens", it doesn't apply to non-citizen nationals. Also, non-citizen nationals are currently exempt from exclusion and deportation in the same way as citizens. But Congress could enact new laws relating to the exclusion and deportation of non-citizen nationals, i.e., treat them like aliens.)

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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".

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    Wouldn't there still be a case under the 10th amendment that this is a case of "State's rights"?
    – origimbo
    Commented Mar 27, 2018 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
    Commented Mar 27, 2018 at 18:28
  • Which federal law would conflict with a state law authorizing noncitizens to vote in state elections? I think you'll find that no such law exists.
    – phoog
    Commented Dec 10, 2021 at 13:50
  • This simple analysis, even if it is correct, isn't correct for this reason. The U.S. Constitution allocates lots of authority over the franchise, indeed, primary authority over the franchise, to state governments.
    – ohwilleke
    Commented May 16 at 1:05
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The truth is, on a national level, not much can be done without making an amendment to the constitution. According to Article 1 Section 4 of the constitution, the states determine the "time, place, and manner" in which elections are held in their states. As such, some states choose to have loose, if any, restrictions on voting (i.e. allowing non-citizens to vote). The only way to change course on a national level would require a constitutional amendment that changes who has the authority to run elections.

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Frame challenge: why shouldn't they vote? We are talking here about non-citizen residents - these are not tourists, but people who live in the state, work in it, pay taxes, uphold the laws, etc. In other words, "residents" here de facto means "citizens of California".

Of course, on a national level there are clear differences between a resident and a citizen, although the former typically can be transformed into another after a certain number of years. But there is also difference between the value of vote in state vs. federal elections - California has no army or international policy, which could be adversely influenced by a non-citizen vote.

It would be clearly wrong, if California allowed non-citizens to vote in federal elections... but by similar logic, why should the citizenship status status, which regulates the relationships between a person and the US, affect their relationship with their state?

See Non-citizen suffrage for many interesting examples.

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  • In the UK you must be both citizen and resident to vote in the general election. Which I think is wrong, everyone in the world should have the right to vote in exactly one place.
    – gnasher729
    Commented May 17 at 13:29
  • @gnasher729 Citizenship comes with a certain number of obligations that residents don't have - e.g., military service in case of national emergency, commitment to certain values, etc. In this sense I think it is reasonable to limit determining national policy to citizens only. On the other hand, local elections - on a state or regional level or a community level - are usually concerned with the kind of matters where a resident is already fully involved. Regarding vote in exactly one place - what about people with multiple nationalities?
    – Morisco
    Commented May 17 at 13:33
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    This doesn't appear to be answering the question. Please remember that this is a question&answer website, not a discussion forum. Answers should answer the question being asked. Not debate its subject matter. And no, adding "frame challenge" is not an excuse to write whatever you want on the subject.
    – Philipp
    Commented May 18 at 11:24
  • @FourLegsGoodTwoLegsBad The point is that UK citizens are not allowed to vote if they are not residents. And if you have multiple nationalities: Pick ONE country where you vote. There is no reason why having several nationalities should give you more voting power.
    – gnasher729
    Commented May 18 at 12:22
  • @gnasher729 I don't see how multiple nationalities give more voting power - like playing soccer doesn't make one stronger baseball player. Or like doing double majors in school.
    – Morisco
    Commented May 18 at 14:23

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