Originally Published in Time
David Litt - September 11, 2020
How many states have, at some point in their history, allowed noncitizens to vote? Take a moment. Guess the answer. Now guess higher.
The answer is 38. Nearly 80% of states at one time extended voting rights to immigrants, without regard to whether they eventually became citizens or not.
Today, the number of states who allow noncitizens to vote is zero. But on Thursday, a three-judge panel unanimously rejected President Trump’s latest attempt to exclude noncitizens from the United States Census. The Administration could not, they ruled, ignore undocumented immigrants when conducting America’s once-per-decade reapportionment—the population count that determines how many Congressional representatives each state receives.
The judges’ ruling was a blow to Republicans, the party that would likely benefit from the attempt to change the way the count was made. But no less important, the panel’s decision was a reassertion of one of America’s most enduring and least-well known democratic values. For the vast majority of the past 230 years, immigrants—both authorized and not—have been allowed to play an important role in the U.S. political process.
In our modern political climate, this lack of concern might seem strange. How can you be in favor of restrictions on voting and not care if newly arrived immigrants vote? Yet at the time, this attitude made perfect sense. After all, when your country is brand new, everyone is brand new to your country. Moreover, as political scientist Ron Hayduk points out, the revolutionary slogan “no taxation without representation” applied in reverse. It was widely accepted that anyone who paid taxes deserved a say in how their money was spent; their birthplace was irrelevant.
For these reasons, nearly all the original 13 states allowed new immigrants to vote. A few of them changed their minds as populations grew, but these older states were offset by newer ones, which offered noncitizens voting rights as enticement to move west. In 1848, for example, the new state of Wisconsin permitted all “declarants”—immigrants who publicly expressed a wish to become citizens in the future—to cast ballots.
So why can’t noncitizens vote today? The answer depends on the state, but generally speaking, a combination of factors was at work. The number of immigrants arriving in America gradually increased, which spooked those already here. Newcomers often moved to cities, and state legislatures favored the countryside. There were also the usual accusations of fraud as recent arrivals became associated—not always unfairly, it must be said—with corrupt political machines. Finally, don’t discount good old-fashioned prejudice; as immigrants began showing up from places other than England, Americans became less eager to enfranchise them.
Yet despite all this, it wasn’t until 1926 that noncitizen voting in America ceased completely. To put it slightly differently, every President prior to Herbert Hoover was elected with noncitizen help. And for many decades after, nothing prevented states from welcoming immigrants back into the presidential electorate if they chose to. Congress didn’t officially ban noncitizen voting for federal offices until 1996. Friends has been around longer than that.
More importantly, in light of President Trump’s attempt to shut undocumented immigrants out of the apportionment count, nothing in the Constitution prohibits immigrants from voting once again. While it seems highly unlikely, it is theoretically possible that sometime between now and 2030 Congress could allow immigrants – particularly green card holders, who arrived here legally and who have publicly pledged to remain – to once again vote in federal elections. Were that to happen, and were the President’s order to go into effect, it would deny millions of eligible voters equal representation in Congress.
A far more likely possibility—one with historical precedent, and one which a vast majority of Americans support—would be to restrict the vote to citizens, but to streamline our legal immigration process while providing undocumented immigrants with a pathway to citizenship via immigration reform. As of 2017, nearly 7 million people—a population roughly the size of Massachusetts—had arrived in the U.S. illegally but had lived here for ten years or more. The average unauthorized immigrant arrived in America around the time Finding Nemo arrived in theaters.
By every possible definition, these long-term undocumented immigrants have made America their home. Their careers and families are here. Like all immigrants, they pay taxes—well more than $10 billion in taxes each year. They’re part of this country. They’re just not part of the part of this country that can vote.
For all these reasons, it makes sense that over the last century, the alternative to noncitizen voting has not been mass disenfranchisement, but mass citizenship. In 1929, almost the exact same time immigrant voting ceased, Congress allowed any unauthorized person to retroactively gain legal status. The government legalized large groups of immigrants again in 1958, and again in 1965. It legalized 2.7 million undocumented immigrants under Reagan and a million more under Clinton.
President Trump claims that his executive order is designed to benefit American citizens. But what happens if immigration reform passes in 2021, or 2022 or 2023? In that case, millions of American citizens would be denied equal representation in Congress. That’s hardly putting America first.
Politically, it’s not hard to see why such as strategy would appeal to President Trump. But as his rejected order demonstrates, immigration is not just a cultural or economic issue—it’s a voting-rights issue, and targeting voting rights comes at a tremendous cost to American democracy. By seeking to exclude millions of people living in America from our politics, the Trump Administration and its allies attempted to sever the link between power and accountability, without which our republic cannot function.
In the statement accompanying his executive order, President Trump promised that he was acting “consistent with the principles of our representative democracy.” But this simply isn’t true. Even at a time when “we, the people” was defined in an unconscionably narrow way, our founders understood that non-citizens contributed to this country, and deserved to be represented. As a matter of principle—and now, officially, of law as well—the same holds true today.
David Litt, a former senior speechwriter for President Barack Obama, is the author of Democracy in One Book or Less: How It Works, Why It Doesn’t, and Why Fixing It Is Easier Than You Think and Thanks, Obama: My Hopey, Changey White House Years.