Simone Lawson
The right to vote in the United States is a fundamental political right, and while the US Constitution does not explicitly require citizenship for voting, it also does not address the issue in detail. The responsibility for overseeing federal elections falls to individual states, and while all states currently limit voting rights to citizens, some states and municipalities have allowed non-citizens to vote in local elections. The Supreme Court has ruled that states may impose residency requirements for voting, and voters must often present identification when voting, but the specific requirements vary from state to state.
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What You'll Learn
Non-citizen voting in local elections
The US Constitution does not explicitly address citizenship requirements for voting, but it grants states the power to set voting qualifications. While most states require citizenship for voting in federal and state elections, some areas allow non-citizens to vote in local elections.
In Maryland, the state constitution gives municipalities the authority to decide voter qualifications for local elections without requiring state approval. The City of Takoma Park, Maryland, became the first municipality to restore non-citizen voting in local elections in 1992. It argued that Maryland's constitution delegates the power to determine suffrage qualifications for municipal elections to municipalities. Additionally, Takoma Park contended that citizenship is irrelevant when voting for local officials dealing with local responsibilities, such as parks, public transportation, and garbage collection.
Other municipalities in Maryland that allow non-citizen voting include Barnesville and Brentwood. In California, San Francisco voters passed Proposition N in 2016, giving non-citizens the right to vote in the city's school board elections. This decision was upheld by a California Court of Appeal in August 2023, permitting non-citizen parents of children in San Francisco to vote in Board of Education elections.
While non-citizen voting in local elections is permitted in some areas, it is essential to note that it is not a widespread practice, and most states require citizenship for voting in federal and state elections. Additionally, audits and studies have shown that voter fraud by non-citizens is rare, and in some cases, non-citizens may be mistakenly registered to vote due to automatic registration processes.
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The 14th Amendment's Equal Protection Clause
The 14th Amendment, passed by Congress on June 13, 1866, and ratified on July 9, 1868, addresses many aspects of citizenship and the rights of citizens. One of the most important provisions of the 14th Amendment is the Equal Protection Clause, which states that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
The Equal Protection Clause has been the subject of numerous landmark Supreme Court cases, including Brown v. Board of Education, which dealt with racial discrimination in education, Roe v. Wade on reproductive rights, Bush v. Gore on election recounts, Reed v. Reed on gender discrimination, and University of California v. Bakke on racial quotas in education. The clause has also been invoked in cases involving voting rights and qualifications, such as Dunn v. Blumstein, Purcell v. Gonzalez, and O'Brien v.
In addition to the Equal Protection Clause, the 14th Amendment also grants citizenship to "all persons born or naturalized in the United States," thereby extending citizenship to formerly enslaved people. This amendment changed a portion of Article I, Section 2, and was intended to nationalize the Bill of Rights by making it binding upon the states. However, it is important to note that the 14th Amendment does not explicitly mention voting rights or the requirement of citizenship to vote.
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Residency requirements
The definition of residency can vary, but it typically involves an individual's physical presence in a jurisdiction and their intention to be a resident of that area. In the context of voting, residency requirements are essential to establish eligibility and ensure that individuals are voting in the correct jurisdiction. The Supreme Court has affirmed that states have the right to impose residency requirements for voting, as long as these requirements serve a compelling governmental interest.
For example, in the case of Dunn v. Blumstein, the Court determined that a one-year residency requirement in a state and a three-month residency requirement in a county were not necessary to further a compelling governmental interest. This case set a precedent for evaluating the constitutionality of residency requirements in relation to the fundamental right to vote.
The specific residency requirements for voting can differ from state to state. For instance, Maryland's state constitution specifies that voters must be residents of the state by the time registration closes before an election. Additionally, some Maryland municipalities, such as Barnesville and Brentwood, allow non-citizens to vote in local elections if they have resided in the town for a certain period, such as six months in the case of Barnesville.
It is important to note that residency requirements are separate from voter registration requirements, which can also vary by state. While some states require voter registration, others, like North Dakota, do not. Individuals should consult their state or local election office to understand the specific residency and registration requirements that apply to them.
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The right to vote as a fundamental political right
The right to vote is widely recognised as a fundamental human right. However, this right is not fully enforced for millions of individuals around the world. The International Covenant on Civil and Political Rights (ICCPR), the European Convention for the Protection of Human Rights, the Charter of the Organization of American States, and many other international human rights documents enshrine the role that free elections play in ensuring respect for political rights.
Article 25 of the ICCPR is the key international guarantee of voting rights and free elections, stating that:
> Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country.
Despite the above, the right to vote is not explicitly recognised as a fundamental right in the US Constitution. However, the US Supreme Court has treated certain aspects of voting as a "fundamental political right" and applied strict scrutiny to instances where states have attempted to exclude qualified citizens from voting. For example, in Dunn v. Blumstein, the Court determined that a one-year residency requirement in a state and a three-month residency requirement in a county were not necessary to further a compelling governmental interest and therefore violated the right to vote.
The NAACP supports federal legislation, litigation, or a constitutional amendment making the right to vote a fundamental right. They argue that if voting were a fundamental right, any law, including electoral schemes like 'at-large' districts, would be subject to strict scrutiny and would need to fulfil a compelling state interest through narrowly tailored means.
In the US, non-citizens, including permanent legal residents, generally cannot vote in federal, state, and most local elections. However, some states and municipalities have passed laws allowing non-citizens to vote in certain local elections. For example, in 1992, the City of Takoma Park, Maryland, became the first municipality in the country to restore noncitizen voting in local elections. As of March 2025, 12 states have been identified as posing no clear impediments to noncitizen voting in local elections.
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The right to vote for prisoners
The right to vote is a fundamental political right in the United States, and the US Constitution protects citizens' right to vote, prohibiting disqualification due to age, gender, and race. However, the Constitution does not explicitly address the voting rights of prisoners. The 14th Amendment to the Constitution reserves the power to restrict a criminally convicted person's right to vote to the states. As a result, the rules regarding prisoners' voting rights vary across the country.
In the United States, more than half of the states continue to restrict voting rights post-incarceration. This means that individuals who have completed their sentences and paroles may still be disenfranchised and unable to vote. The laws and their implementation vary from state to state, and this variation creates a complex landscape of voting rights for prisoners.
Some states have taken steps to facilitate voting for incarcerated individuals. For example, as of 2022, eight jails have established on-site polling places, allowing detainees to vote while in custody. This has led to a significant increase in voter participation among the jail population, as seen at Cook County Jail in Illinois, where voter participation jumped from 7% to 37% after the introduction of on-site polling places.
The issue of voting rights for prisoners is not just a legal matter but also a moral and ethical one. Some organizations, such as Prison Fellowship, advocate for the automatic restoration of voting rights post-release, recognizing the human dignity of formerly incarcerated individuals and their potential contributions to society. They believe that removing the right to vote as a form of punishment should be an extraordinary circumstance reserved for those incarcerated and removed from the community.
Additionally, it is important to address the issue of racial discrimination in the context of voting rights for prisoners. The United States has a history of intentional discrimination against communities of color and people living in poverty through voter disenfranchisement. Black Americans and low-income Americans are overrepresented in the pretrial detainee population, and they are disproportionately affected by the denial of voting rights while incarcerated.
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Frequently asked questions
No, the US Constitution does not require citizenship to vote. The Supreme Court has asserted that nothing in the Constitution gives Congress the authority to set voting qualifications in federal elections. However, states may require proof of citizenship and duration of residency as a qualification to vote.
All states currently limit voting rights to citizens, but legal noncitizen voting is not without precedent. Some states and municipalities allow non-citizens to vote in local elections.
The City of Takoma Park in Maryland became the first municipality in the country to restore noncitizen voting in local elections in 1992. Other municipalities in Maryland that allow noncitizen voting include Barnesville and Brentwood. In 2016, voters in San Francisco passed a charter amendment that gave noncitizens the right to vote in the city's school board elections.
Federal laws that protect voting rights include the Voting Accessibility for the Elderly and Handicapped Act of 1984, the Uniformed and Overseas Citizens Absentee Voting Act of 1986, the Military and Overseas Voting Empowerment Act of 2009, the National Voter Registration Act of 1993, and the Help America Vote Act of 2002.
Constitutional amendments that protect voting rights include the 15th Amendment, which gave African American men the right to vote in 1870, the 19th Amendment, which gave women the right to vote in 1920, the 24th Amendment, which eliminated poll taxes in 1964, and the 26th Amendment, which lowered the voting age to 18 in 1971.
