Eleanor Finch
The constitution is silent on the matter of noncitizen voting rights, but in 1996, Congress passed a statute prohibiting any state from permitting non-citizens to vote in federal elections. This has led to legal challenges, with some arguing that the ban infringes on state sovereignty and that decisions on non-citizen voting rights should be left to the states. Despite these challenges, noncitizen voting rights remain a contentious issue, with some states and municipalities allowing noncitizens to vote in local elections.
| Characteristics | Values |
|---|---|
| Non-citizen voting in federal elections | Banned by Congress in 1996 |
| Non-citizen voting in state elections | Allowed in some states and municipalities |
| Non-citizen voting in local elections | Allowed in San Francisco, Barnesville, and Washington D.C. |
| Non-citizen voting in municipal elections | Allowed in New York City, but the law was overturned by the New York State Supreme Court |
| Non-citizen voting history | Common in the early Twentieth Century, but states began changing their constitutions to prevent it |
| Constitutional basis for non-citizen voting | Article I, which stipulates that Congress seats are allocated based on the number of "free Persons" in a state |
| Constitutional basis for citizen-only voting | The Constitution does not explicitly mention voting rights, but each state determines the "Manner of holding Elections" |
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What You'll Learn
Noncitizen voting in federal elections
The Constitution does not explicitly address whether noncitizens can vote in federal elections, but the Fourteenth Amendment guarantees "due process of law" to all persons within the United States, regardless of their legal status. This has been interpreted by the courts to mean that noncitizens, regardless of their legal status, are entitled to constitutional protection.
Historically, noncitizen voting was permitted in some states, but in the early 20th century, states began changing their constitutions to prevent it. By 1931, noncitizen voting had become extremely rare. In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), which prohibited noncitizens from voting in federal elections. This Act explicitly states that it is "unlawful for any alien to vote in any election held solely or in part for the purpose of electing a candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner."
Despite this federal ban, some states and municipalities have enacted laws or policies that allow noncitizens to vote in local elections. For example, the District of Columbia Council passed the D.C. Noncitizen Vote Act in October 2022, which allows noncitizens to vote in local elections. Similarly, in San Francisco, non-citizen parents are permitted to vote in San Francisco Board of Education elections. These laws have faced legal challenges, with varying outcomes.
The constitutionality of the federal ban on noncitizen voting in federal elections has been questioned by some, who argue that it infringes on state sovereignty and that the decision to allow noncitizen voting should be left to the states. However, others argue that allowing non-citizens to vote is unfair to those who have worked hard to achieve citizenship.
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Noncitizen voting in state elections
The United States Constitution does not explicitly address whether noncitizens can be represented in Congress. However, it is important to note that the Constitution grants Congress the power to make laws governing immigration and related matters.
Regarding noncitizen voting in state elections, it is important to understand the historical context and the current landscape:
Historical Context
In the late 19th and early 20th centuries, some states allowed noncitizens to vote in state and local elections. However, this changed in the early 20th century when states began amending their constitutions to prohibit noncitizen voting. Between 1901 and 1926, Alabama, Colorado, Wisconsin, Oregon, Kansas, Nebraska, South Dakota, Indiana, Texas, Mississippi, Missouri, and Arkansas all banned noncitizen voting. By 1931, noncitizen voting had become extremely rare, with political scientist Leon Aylsworth noting that the 1928 national election was the first in over a hundred years where no noncitizen could vote in any state or local election.
Current Landscape
Currently, no state permits noncitizens to vote in statewide elections. However, certain municipalities in California, Maryland, Vermont, and the District of Columbia allow noncitizens to vote in some or all local elections. For example, San Francisco permits non-citizen parents and guardians to vote in school board elections, and Takoma Park allows non-citizen residents to vote in city elections. Similarly, Burlington, Vermont, allows noncitizen residents to vote in local elections following a charter amendment in 2023. In contrast, attempts to allow noncitizen voting in New York City were struck down by a state judge in 2022.
It is worth noting that illegal voting by noncitizens can result in significant penalties, including fines, prison time, and deportation. Additionally, processes are in place to prevent noncitizens from receiving ballots for state or federal elections in jurisdictions that allow them to vote in local elections.
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Noncitizen voting in local elections
The Constitution does not explicitly address whether noncitizens can be represented in Congress. However, the right to vote in federal elections is generally understood to be reserved for citizens only.
Despite federal and state prohibitions, noncitizen voting in local elections has been a topic of debate in recent years, with some municipalities restoring the right for noncitizens to vote in certain local elections. This is often justified on the grounds that noncitizens have a stake in issues such as public safety, education, and other local matters.
In 1992, the City of Takoma Park, Maryland, became the first municipality to restore noncitizen voting rights in local elections. Maryland's state constitution gives municipalities the authority to allow people outside the qualifications of citizenship and age to vote without requiring state approval. As of March 2025, Barnesville and Brentwood, Maryland, allowed noncitizens to vote in local elections.
In 2022, Oakland, California, approved a charter amendment to allow noncitizen residents who are parents, legal guardians, or legally recognized caregivers of a child to vote for the Oakland School Board Director. This amendment had not been implemented as of March 2025. In San Francisco, Proposition N, passed in 2016, gave noncitizens the right to vote in the city's school board elections. This was initially struck down by a San Francisco Superior Court Judge but was later upheld by a California Court of Appeal in 2023.
The District of Columbia Council passed the D.C. Noncitizen Vote Act in October 2022, allowing noncitizens to vote in local elections. This legislation passed its congressional review in March 2023.
On the other hand, a New York State Supreme Court overturned a law allowing noncitizens to vote in municipal elections in New York City in June 2022, ruling that it violated the state's constitution.
While noncitizen voting in local elections is gaining traction in some areas, it is important to note that it is not widespread, and most states require citizenship for voting in any election. Audits and studies have shown that noncitizen voting is extremely rare, and voter fraud by noncitizens is minimal.
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Qualifications to be elected to Congress
The qualifications to be elected to Congress are outlined in Article I, Section 2, Clause 2 of the US Constitution. The requirements are age, citizenship, and residency in the state at the time of election.
The age requirement is a minimum of 25 years for the House of Representatives and 30 years for the Senate. Citizenship requirements state that one must be a US citizen for at least seven years to be eligible for the House of Representatives and nine years for the Senate.
The residency requirement mandates that the individual resides in the state they represent at the time of the election. This qualification has been a point of contention, with some states adding additional requirements, such as a 12-month residency mandate. However, the House of Representatives has, in the past, seated members who did not meet these additional state-level qualifications, deeming them unconstitutional.
While the Constitution sets these three qualifications, states have occasionally attempted to impose additional ones. Nevertheless, Congress has consistently rejected these efforts, upholding the exclusivity of the qualifications outlined in the Constitution.
Historically, non-citizens were allowed to vote in certain states and local elections, but this changed in the early 20th century. By 1931, non-citizen voting had become extremely rare, and in 1996, the Illegal Immigration Reform and Immigrant Responsibility Act was passed, further restricting non-citizen voting rights.
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Constitutional rights of noncitizens
The US Constitution does not explicitly outline the rights of noncitizens, but several court cases have affirmed that noncitizens are indeed entitled to certain constitutional rights. The Fifth and Fourteenth Amendments guarantee due process of law to all "persons", and the Supreme Court has interpreted "persons" to include noncitizens, regardless of their legal status. This means that noncitizens have the right to a fair hearing, and cannot be deported without an opportunity to be heard. They also have the right to remain silent, and the right to an attorney if they are facing criminal charges.
In addition to due process, noncitizens also have rights under the Fourth Amendment, which protects against unreasonable searches and seizures. While there is a border search exception, which deems searches at the border (including airports and other ports of entry) as reasonable, the Fourth Amendment still applies to noncitizens within the US.
The First Amendment guarantees freedom of speech, religion, and assembly, and these rights also extend to noncitizens. The Supreme Court has also ruled that undocumented immigrant children have the right to a free public education, based on the Fourteenth Amendment's guarantee of equal protection under the law.
While noncitizens do have some constitutional rights, the right to vote is generally reserved for citizens. By 1931, all states had passed laws barring noncitizens from voting, and a federal law passed in 1996 explicitly prohibited illegal immigrants from voting. However, some municipalities, such as San Francisco and Maryland, have allowed noncitizens to vote in local elections.
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Frequently asked questions
No, it does not. The Illegal Immigration Reform and Immigrant Responsibility Act, passed in 1996, prohibits noncitizens from voting in federal elections.
The US Constitution does not explicitly state that only citizens are entitled to vote. However, it does outline the requirements for being elected to the US Senate, which include being a citizen of the United States for nine years or more.
While noncitizens cannot vote in federal elections, some states and municipalities have allowed noncitizens to vote in local elections. Additionally, noncitizens have an interest in schools, public safety, and other issues that are addressed by Congress, so they may be indirectly affected by congressional decisions.
