[EL] let noncitizens vote?

Sun May 22 14:30:51 PDT 2011

One of the issues in the crafting of section 2 of the 14th Amendment was whether to base representation on eligible voters or on population. Some of the members of Congress who debated this question thought that basing it on number of eligible voters would let states manipulate the system by, inter alia, allowing aliens to vote (or alternatively, that it would encourage broader enfranchisement). Others pointed out that basing it on number of eligible voters would reduce the power of states with large numbers of women, children, and aliens, absent changes in voting eligibility laws, and would eliminate the virtual representation that such non-voters had (supposedly) enjoyed. Of course the end result was to base representation on population, with a percentage deduction (never enforced) for disenfranchisement of men who were 21 or older and who were citizens. The hope was that this would encourage the formerly rebellious states to enfranchise African Americans (and that it meanwhile would prevent southern whites from increasing their political power due to the 13th Amendment's interaction with the three-fifths clause). See, e.g., Mark S. Scarberry,  Historical Considerations and Congressional Representation for the District of Columbia: Constitutionality of the D.C. House Voting Rights Bill in Light of Section Two of the Fourteenth Amendment and the History of the Creation of the District, 60 Ala. L. Rev. 783, 820-22 (2009), http://ssrn.com/abstract=1345744.

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law
Malibu, CA 90263
(310) 506-4667

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Justin Levitt
Sent: Sunday, May 22, 2011 1:04 PM
To: law-election at department-lists.uci.edu
Subject: Re: [EL] let noncitizens vote?

Jamie Raskin also does a nice job addressing the history (and policy) in Legal Aliens, Local Citizens, 141 U. Pa. L. Rev. 1391 (1993).

On 5/22/2011 11:28 AM, Michael McDonald wrote:

Alexander Keyssar lists the states in his Right to Vote book. If I recall

correctly, the number of states allowing non-citizens to vote declined

mostly during the ascendency of the Know-Nothing Party in the mid-1850s. A

few straggler states continued to allow non-citizens to vote into the early

1900s.

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Subject: Re: [EL] equal numbers of VOTERS, rather than residents - let

noncitizens vote?

It was practiced.  I believe that Arkansas permitted non-citizens to

vote as late as 1926

Sent from my Verizon Wireless BlackBerry

-----Original Message-----

From: Doug Hess <douglasrhess at gmail.com><mailto:douglasrhess at gmail.com>

Sender: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>

Date: Sun, 22 May 2011 08:45:19

To: <law-election at department-lists.uci.edu><mailto:law-election at department-lists.uci.edu>

Subject: [EL]  equal numbers of VOTERS,

  rather than residents - let noncitizens vote?

"One way to encourage people, particularly those in the "west," to

feel that they were Americans was to allow non-citizens to vote if they

intended to become citizens."

That's really interesting. For how long did that go on? Or was it just

an argument, but not implemented?

Doug Hess

202-277-6400 (cell)

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Justin Levitt

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Loyola Law School | Los Angeles

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ssrn.com/author=698321
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