If I’m not too late about seeing and responding to this thread: 

I don’t know whether many people deliberating about the National Popular Vote  Plan are likely to think about the distributive consequences of non-citizen voting.  But I have to pipe up to agree with Mark Scarberry on his constitutional interpretation.  

Mark’s analysis of the unconstitutionality of the federal ban on alien voting is spot-on to me.  And not only from the long historical perspective.  I don’t think the U.S. Supreme Court’s Election Clause jurisprudence can be pushed so far as to justify a congressional power for this legislation (notwithstanding Justice Black’s confused opinion in Oregon v. Mitchell).   

Granted, Congress’s 1/4/1 power has been described many times as “plenary”.  But even with “emanations and penumbrae”, it remains a plenary power over times, places, and manner (roughly what we think of as “procedural” law), and not a substantive power over formal qualifications.  Majority opinions like Cook v. Gralike have recognized as much. 

Perhaps the federal ban could be construed (through the canon of constitutional avoidance) as inapplicable to any future scenario where a state has authorized non-citizen voting.  But--reading the ban for the first time just now (section 216 of the “Illegal Immigration Reform and Immigrant Responsibility Act”)--I am struck by how aggressively it is drafted.  

Taken literally (w/o the convolutions of the avoidance canon), it blatantly interferes with a state’s power to define voter qualifications for its own legislature to the extent these are pegged to the congressional qualifications via the qualifications clause of 1/2/1.   

Arguably, this statute also trenches on a state’s ability to enfranchise non-citizens for even offices that aren’t constitutionally pegged to the congressional qualifications.  It does not directly prohibit a state from such enfranchisement, but it seems like it could really burden that choice since it requires any such voting to be conducted in an “independent[]” way that doesn’t create “opportunity” for federal voting.  

Whether this means separate ballots or some more dramatic separation--this sounds like it could significantly tax the states (in a choice about qualifications that goes to the heart of their self-governance) since joint administration of federal and state or local elections is so common and expedient.  I am left with the impression that federalism was not an important value when it came up against “Immigrant Responsibility”!

Kirsten

(IIRIRA text pasted below)

Sec. 611. Voting by aliens    (a) It shall be 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, unless - (1) the election is held partly for some other purpose;(2) aliens are authorized to vote for such other purpose under a State constitution or statute or a local ordinance; and (3) voting for such other purpose is conducted independently of voting for a candidate for such Federal offices, in such a manner that an alien has the opportunity to vote for such other purpose, but not an opportunity to vote for a candidate for any one or more of such Federal offices.