Comment: When it suited officials, non-citizens could vote

While encouraged for much of U.S. history, surging nativist sentiment is blocking any return of the policy.

By Rachel Michelle Gunter / Special To The Washington Post

Recently, the New York City Council passed a law allowing permanent residents and those with DACA status to vote in local elections. This move comes amid a nationwide push to expressly forbid all noncitizen voting, even in states that don’t allow it. For example, Georgia’s Secretary of State Brad Raffensperger circulated a petition for a state amendment banning noncitizen voting in Georgia. In 2020, Colorado, Florida and Alabama approved similar state amendments.

Both approaches may come as a surprise to Americans who assume that our system has explicitly defined who may vote. But it hasn’t.

The Constitution does not define voting as a right, and who possesses this privilege has been fluid throughout American history. Politicians have long enfranchised — or disfranchised — groups to benefit those already in power. That includes immigrants. While federal law since 1996 requires voters in federal elections to be citizens, state and local governments can enfranchise noncitizens in their elections, and our nation has a long history of granting noncitizens voting rights. Approximately two-thirds of the nation, in fact, allowed noncitizens to vote at some point in their territorial or state history, though the practice became curtailed after 1926.

Efforts to limit voting rights, including those for noncitizen immigrants, have always been about reshaping the electorate as politicians see fit — choosing one’s voters — to serve particular beliefs about belonging and exclusion, in the absence of a truly representative system.

The founding generation, acting through the Confederation Congress, which governed the United States from 1781 to 1789, enfranchised immigrants in the Northwest Territory, the area west of Pennsylvania and east of the Mississippi River, for example. Noncitizen voting attracted immigrants by giving them a say in the government, and those in power saw it as training them for full citizenship.

In the Early Republic, many states and territories allowed “declarant immigrants” — those who had filed their intentions to become citizens — to vote. Under federal law, white, male immigrants who had resided in the nation for five years could naturalize as U.S. citizens three years after filing their intention to do so; allowing declarant immigrants to vote meant adding more white men to the rolls.

Then, amid the democratization of the nation in the 1820s, many states eliminated property requirements for white male voters, while erecting new barriers to political participation for women and people of color. A push to end immigrant voting was part of this restructuring of the boundaries of political rights, preserving the ballot for native born white men amid increasing numbers of German and Irish immigrants.

Beginning in Wisconsin in 1848, the country witnessed a resurgence of voting by declarant immigrants. Michigan and Indiana soon enfranchised immigrants, followed in the 1850s by Kansas, Minnesota and Oregon. Politicians supported immigrant voting to gain electoral support from newcomers that was seen as necessary for statehood, as well as to attract European immigrants. These immigrants were on a path to citizenship, and the law granted them rights and responsibilities making them closer to citizens than foreigners.

Wartime strengthened the link between military service and voting rights regardless of citizenship. During the Civil War, 10 states or federal territories enfranchised immigrants, many of whom served in the U.S. military. Fighting to preserve the Union conferred a status of belonging.

Though the Republican Party contained pro- and anti-immigrant voices, its 1860 platform explicitly denounced efforts to make naturalization more difficult or to limit the rights of naturalized citizens. During the War, Republicans successfully repealed a Massachusetts law requiring a waiting period before naturalized citizens could vote. Large numbers of the more than 1 million German immigrants living in the nation in 1860 opposed secession and slavery, which may have influenced the party’s stance. In contrast, the Confederate Constitution expressly prohibited immigrant voting.

During Reconstruction, after the 15th Amendment enfranchised Black men, Congress forced Southern states to write new constitutions protecting Black male voting. While no Southern state had allowed declarant immigrant voting before the Civil War, the constitutional conventions — largely led by white Republicans, though with some Black male delegates — added it to the Reconstruction constitutions of Alabama, Arkansas, Florida, Georgia, South Carolina and Texas. Texas, for example, enfranchised noncitizens to attract new immigrants and their labor. Texas officials also hoped immigrant voters would bolster support for the Republican Party.

With noncitizens splitting votes between parties and nativism on the rise, immigrant voting declined in popularity. By 1900, only 11 states still allowed it. As Southern states established Jim Crow voting laws to eliminate Black voting, some targeted noncitizen voting too, helping cement the power of native-born White men. Georgia ended the practice in 1877, Florida in 1894 and Alabama in 1901. Only in states where immigrants had become a crucial bloc of support did noncitizen voting endure, such as in South Texas where political bosses ran a political machine powered by Mexican immigrant voters.

With noncitizens splitting votes between parties and nativism on the rise, immigrant voting declined in popularity. By 1900, only 11 states still allowed it. As southern states established Jim Crow voting laws to eliminate Black voting, some targeted noncitizen voting too, helping cement the power of native-born white men. Georgia ended the practice in 1877, Florida in 1894 and Alabama in 1901. Only in states where immigrants had become a crucial bloc of support did noncitizen voting endure, such as in South Texas, where bosses ran a political machine powered by Mexican immigrant voters.

At the turn of the century, immigration from Mexico increased as people fled both the regime of Porfirio Díaz and the violence of the Mexican Revolution. Mexican immigrants were considered legally white, making them eligible to vote in the all-white primaries held in the South, though at times they faced racist violence intended to dissuade them from voting. To stop Mexican immigrant voting in 1896, Populist attorney Theodore McMinn challenged Mexican immigrants’ status as white — and therefore their eligibility to naturalize — in re Rodriguez. But the courts rejected his contentions.

Noncitizens, like citizens, voted based on an array of issues. For example, Mexican and German immigrants tended to be Catholic. Many Catholics objected to the establishment of public schools during Reconstruction, which they feared aimed to indoctrinate students with Protestant teachings. One Texas priest threatened excommunication of Catholics who voted for Republicans. Democrats recruited immigrant voters and accused the Republican Party of welcoming former Know-Nothings, members of an extremely nativist antebellum political party.

Arguing that immigrants were a reactionary force blocking reforms such as Prohibition and woman suffrage, Progressive-era reformers spearheaded the campaign to end noncitizen voting. Voting expansion for some often meant disfranchisement for others. South Dakota, Texas and Arkansas all passed state amendments requiring referendums that enfranchised citizen women while simultaneously disfranchising noncitizens.

The Texas amendment failed in 1919, but after the 19th Amendment was ratified granting women the right to vote, they tried again. The new amendment disfranchised noncitizens, but further enfranchised women by allowing their spouses to pay their poll taxes; it passed in 1921; in part thanks to white women voters. If Southerners feared that women’s suffrage would lead to increased Black voting, they needn’t have — white women voters frequently reinforced Jim Crow, supporting the disfranchisement of Black voters — and noncitizen voters.

In 1926, Arkansas became the final state to end noncitizen voting at the state level, though noncitizen voting endured in various local and school board elections across the country over the ensuing century. Lacking the franchise left noncitizens vulnerable to the nativist whims of their neighbors.

For example, in the early 20th century, Congress passed the Expatriation Act depriving American women of citizenship if they married a noncitizen, and in 1924 the Johnson-Reed Immigration Act sharply curtailed immigration from nations seen as sending “undesirable” immigrants. Then, as now, depriving immigrants of political rights did not stop at voting.

Today’s movement to ban noncitizen voting — even in places that don’t currently allow it — reflects resurgent nativist sentiment. Indeed, raising the issue allows politicians to spread fear regarding unfounded claims of rampant noncitizen voting to push for onerous restrictions on citizen voting, by imposing voter ID laws, closing polling locations and limiting early, mail-in and drive-through voting. For this reason, noncitizen voting bans should leave us equally concerned for immigrant rights more broadly and for the voting rights of all Americans.

Rachel Michelle Gunter is author of “Immigrant Declarants and Loyal American Women: How Suffragists Helped Redefine the Rights of Citizens” in the Journal of the Gilded Age and Progressive Era and is writing a book about how suffragists and changing notions of citizenship altered the voting rights of women, soldiers, veterans and immigrants.

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