***** LEGAL ALIENS, LOCAL CITIZENS: THE HISTORICAL, CONSTITUTIONAL AND THEORETICAL MEANINGS OF ALIEN SUFFRAGE. JAMIN B. RASKIN [141 University of Pennsylvania Law Review 1391 (1993)]
INTRODUCTION
. . . In American history, the desire to exclude people from political membership on the basis of property, wealth, race, and gender has been overcome by the radical demand to grant the vote to all inhabitants of the governed community. n6 Taking the form of progressive waves of popular struggle, the political imperative of "universal suffrage" has moved the various levels of the American regime ever closer to the ideal of becoming what I want to call "polities of presence," communities governed by all adults living within them. The circle of voting membership in the democracy has so far widened to incorporate: people without taxable property or [*1393] income, n7 African-Americans, n8 women, n9 and eighteen-year-olds, n10 to take the four most prominent categories of those enfranchised after political struggle. n11
But if the story of expanding American suffrage captures a significant part of our history, there is somewhat more to the picture than meets the eye. As the franchise has expanded over the centuries to take in nearly all adult citizens, one group which voted and participated, at various points over a 150-year period, in at least twenty-two states and territories, lost its historic access to the ballot: inhabitants of individual states who are not citizens of the United States or, to use the reifying but inescapable idiom of immigration law, resident aliens. n12 Today, with the extraordinary, though still largely unwritten, n13 history of alien suffrage safely hidden from [*1394] view, the U.S. citizenship voting qualification ropes off the franchise in every American state from participation by non-U.S. citizens. As a marker at the perimeter of the American body politic, the citizenship qualification carries the aura of inevitability that once attached to property, race, and gender qualifications.
In this Article, I will argue that the current blanket exclusion of noncitizens from the ballot is neither constitutionally required nor historically normal. . . .
[*1395] Part I sketches the role alien suffrage has played in American history. The practice figured importantly in our nation-building process n16 until it was finally undone by the xenophobic nationalism preceding and accompanying World War I. n17 The state legislatures which enacted alien suffrage policies operated from a paradigm of strong federalism; most believed that, just as the United States had citizens, individual states could have citizens of their own. n18 Their motivation for extending the ballot to aliens varied according to place and time, but it was always a mixture of instrumental policy and democratic principle. In the eighteenth century, alien voting occupied a logical place in a self-defined immigrant republic of propertied white men: It reflected both an openness to newcomers and the idea that the defining principle for political membership was not American citizenship but the exclusionary categories of race, gender, property, and wealth. n19 Later, especially in the mid-nineteenth century, many states hoped to encourage rapid settlement by enfranchising aliens; n20 they knew that aliens were seeking the opportunity to participate in local affairs and the sense of belonging and respect that the ballot symbolized, the sense Judith Shklar has called "citizenship as standing." n21
From the beginning, however, proponents of alien suffrage also justified the practice on the higher ground of democratic principle, especially natural-rights arguments. The state judicial opinions upholding alien suffrage, n22 the supportive speeches made in state constitutional conventions, n23 and various remarks made in the United States Senate thus provide a rich source of principled arguments for reviving alien suffrage today.
Part II provides a constitutional analysis concluding that state enfranchisement of noncitizens is neither forbidden by the Constitution, as is commonly assumed, n24 nor compelled by it, n25 as was argued by Gerald Rosberg in an important article published in [*1396] 1977. n26 Rather, this Article shows that noncitizen suffrage is a franchise issue reserved to the states by Article I of the Constitution. n27 Furthermore, granting the vote to aliens does not offend the Equal Protection Clause, n28 the Naturalization Clause, n29 or any other constitutional principle. n30
Part III presents the normative argument for reviving alien suffrage at the local level. The argument begins by generalizing old-fashioned democratic principles which were used to justify white male alien suffrage in the American past. n31 Although these principles did not provide enough armor for alien suffrage to withstand the rise of anti-immigration sentiment at the turn of the century and militant nationalism at the time of World War I, they may yet reemerge in the contemporary context of heavy immigration and international movement toward "[c]ommunity-based democracy." n32 This movement, following the emergence of a global market and the corresponding dilution of national boundaries, would invite us to treat local governments as "polities of presence" in which all community inhabitants, not just those who are citizens of the superordinate nation-state, form the electorate. Alien suffrage would thus become part of a basic human right to democracy. This logic is already partially at work in Europe, as the proposed Maastricht Treaty for the European community contains a provision for local voting by European nationals in their city of residence regardless of state citizenship. n33
Part IV canvasses the current status of noncitizen voting in the United States and describes in some detail the experience of the City of Takoma Park, Maryland, which in 1992 became the first American municipality in decades to amend its charter specifically to extend the franchise to noncitizens in local elections. n34 Takoma Park's experience embodies the cluster of legal and theoretical issues which can emerge when localities attempt to effect this local constitutional change. If the democratic argument for alien suffrage [*1397] in our history can be recaptured and reconstructed, it is possible that Takoma Park will become an early precedent for grass-roots constitutional politics in the twenty-first century.
I. ALIEN SUFFRAGE AND THE COMPLEX MEANINGS OF CITIZENSHIP UNDER FEDERALISM: A HISTORICAL SKETCH
Until it was finally undone by the xenophobic nationalism attending World War I, alien suffrage figured importantly in America's nation-building process and in its struggle to define the dimensions and scope of democratic membership. Where alien suffrage was adopted, the practice was seen as conducive to a desired immigration (and assimilation) of foreigners and consistent with basic principles of democratic government. Moreover, the enactment of noncitizen voting laws was widely recognized as permissible within the constitutional regime of electoral federalism. n35 The class of aliens -- or, more precisely, white male aliens -- exercised the right to vote in at least twenty-two states or territories during the nineteenth century. n36 After a surge in anti-immigrant emotion at the turn of the century, there was a steady decline in alien suffrage and Arkansas became the last state to abandon noncitizen suffrage in 1926. n37
As a chapter in the history of American federalism, the period of alien suffrage reflected a conception of states as sovereign political entities. The states with alien suffrage allowed non-U.S. citizens to participate in voting at all levels of American government, thereby turning them, explicitly or implicitly, into "citizens" of the state itself. n38 Participant states were thus exercising independence [*1398] from the national government for the purposes of communal political self-definition.
In choosing to confer the rights of political membership on aliens, these states were recognizing meanings of citizenship apart from the notion of mere membership in the nation-state. One meaning, which I would call "citizenship as presence," defined citizens as all those people actually present and participating in the life of the local and state community. In this sense, alien suffrage was simply a recognition of the continuing presence and importance of aliens in American social life. A second meaning, which I would call a "citizenship of integration," reflects the intentional public policy of assimilating aliens to local values and practices. Finally, alien suffrage jurisdictions were acting on a theory of "citizenship as standing." n39 According to the theory of "citizenship as standing," the right to vote is an emblem of public recognition and respect even more than it is an instrument for exercising political power. n40 Alien suffrage represented a victory for aliens seeking recognition and an improved place in American society. For, as Shklar writes, the "ballot has always been a certificate of full membership in society, and its value depends primarily on its capacity to confer a minimum of social dignity." n41
War has exercised powerful effects on the franchise. Yet, while foreign wars broadened suffrage opportunities for women and African-Americans, n42 aliens lost ground in two war-related periods of nationalism and anti-immigrant emotion. The War of 1812 reversed the spread of alien suffrage, and the xenophobia surrounding World War I, for all intents and purposes, closed the curtain on the practice. In the wake of World War I, the vertical primacy of [*1399] nation-state citizenship was firmly established over citizenship's other possible meanings. There was, however, an exception to the constraining effects of war on alien suffrage: for complex reasons, the North's victory in the Civil War acted as a catalyst for the spread of alien suffrage in the late nineteenth century.
A. Voting Rights for All White Men of Property: Alien Suffrage in the Early Republic
The practice of noncitizen voting first appeared in the colonies, which generally required only that voters be local "inhabitants or residents," and not British citizens. n43 This early liberalism did not reflect universal tolerance, but simply the fact that "the ethnocentrism of the colonial period was primarily religious and only secondarily nationalistic." n44 Thus, many alien "inhabitants" who met the appropriate property, wealth, race, religion, and gender tests possessed the right to vote in the colonies. For example, French Huguenots voted in South Carolina, where the "electoral law had been so loosely drawn, it was said, that with only a property qualification every pirate of the Red Sea operating from a Carolina base could vote if he wanted to." n45 There was widespread alien voting in the colony's 1701 election, and despite conservative protests, the South Carolina Assembly in 1704 enacted an electoral law which formally allowed voting by aliens. n46 . . .
[The full text is available at <http://www.sou.edu/polisci/pavlich/Raskin_Aliens.htm>.] *****
Jamin B. Raskin: <http://library.wcl.american.edu/FacBib/ProfBib.php3?ProfID=44>
Ronald Hayduk, "Non-Citizen Voting: Pipe Dream or Possibility," _Drum Major Institute E-Journal_ (October 2002): <http://www.drummajorinstitute.org/plugin/template/dmi/55/1694>
