Noncitizen voting and the extraconstitutional construction of the polity

International Journal of Constitutional Law

Volumn 8, Issue 1, 2010, Pages 30-49

  Rodríguez, Cristina M ^a  

^a NEW YORK UNIVERSITY SCHOOL OF LAW   (United States)

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[No Author keywords available]

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EID: 77953555642     PISSN: 14742640     EISSN: 14742659     Source Type: Journal    
DOI: 10.1093/icon/mop032     Document Type: Article

References (79)

1. In this essay, unless otherwise specified, when I invoke noncitizen voting, I refer to voting by permanent residents.
2. For a discussion of this literature and an argument that the lack of voting rights for noncitizens weakens the political power that certain groups ought to have, see Cristina M. Rodríguez, From Litigation, Legislation, 117 YALE L.J. 1132, 1173 - 78 (2008).
3. David Earnest has conducted the most comprehensive empirical analysis of alien suffrage, and his work has shown that the national culture of specific settings, particularly the extent to which a society conceives of itself as a multiethnic union, rather than pressure from an international or transnational human rights regime, has determined willingness to extend the franchise. In an extremely helpful typology, he identifies four different nationalist and three different transnationalist explanations scholars have advanced for why nation-states adopt particular strategies for incorporating noncitizens into their political life, including alien suffrage.
4. See David C. Earnest, Neither Citizen Nor Stranger: Why States Enfranchise Resident Aliens, 58 WORLD POL. 242 (2006) (reviewing the extensive literature explaining why societies choose particular strategies to incorporate noncitizens).
5. The nationalist points of view explain that the decision to extend political rights is a function of: a society's historical understanding of how the nation has been constituted, id. at 248; the state's institutions, id. at 249 - 250; a trade-off for ensuring that more expensive social and economic rights not be granted to noncitizens, id. at 250; and, finally, the political parties in power, where either left-or right-of-center parties are more likely to enfranchise or extend rights to noncitizens, id. at 251. The transnationalist explanations include that international human rights norms and international governmental organizations pressure states into adopting incorporationist practices, see id. at 253 - 254, and that, in some cases, resident aliens " organize across borders" ensuring that in settings where migrants come from geographically proximate countries, the pressure to incorporate will be higher.
6. This definition occurs at a high, national level, with broad participation by the people's representatives, because the immigration laws, which determine who will have the legal status necessary to claim the right to vote, are formulated largely at the national level. But the process is also often decentralized and localized, because subfederal governments and voters are in control of many alien suffrage regimes.
7. The alien suffrage guarantees that exist in each of these jurisdictions are also " non-discriminatory, " a term used in the literature to describe regimes that do not impose nationality qualifications for access to the franchise.
8. See, e.g., DAVID C. EARNEST, OLD NATIONS, NEW VOTERS: NATIONALISM, TRANSNATIONALISM, AND DEMOCRACY IN THE ERA OF GLOBAL MIGRATION 29 (State Univ. of New York Press 2008).
9. " Discriminatory" regimes, on the other hand, extend voting rights only to noncitizens of particular nationalities, usually for historical reasons that relate to the country's colonial history.
10. Historically, for example, the United Kingdom granted voting rights in parliamentary elections to citizens of Commonwealth nations and to the Republic of Ireland, and citizens of Brazil have special voting rights in Portugal
11. For a detailed history of alien suffrage in the United States, see Gerald Rosberg, Aliens and the Right to Vote, 75 MICH. L. REV. 1092, 1093 - 1100 (1977).
12. For a discussion of contemporary efforts to extend the franchise to noncitizens in various states in the United States, see RON HAYDUK, DEMOCRACY FOR ALL: RESTORING IMMIGRANT VOTING RIGHTS IN THE UNITED STATES 15, 15 - 40 (Routledge 2006).
13. In addition, in the postwar period, a number of states either have considered alien suffrage and declined to adopt the practice (France, Japan, Latvia, and subfederal jurisdictions within Switzerland and the United States) or rescinded noncitizen voting guarantees (Australia, Canada, and the United States).
14. See Cristina M. Rodríguez, The Citizenship Paradox in a Transnational Age, 106 MICH. L. REV. 1111, 1122 - 1126 (2008).
15. Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Oct. 31, 1990, BVerfGE 83, 37.
16. The assembly of this German Land voted to allow resident aliens from Denmark, Ireland, the Netherlands, Norway, Sweden, and Switzerland to vote in local and district elections in an act of reciprocity - in recognition that German citizens residing in those states also were permitted to vote in local elections.
17. See Daniel Munro, Integration Through Participation: Non-Citizen Resident Voting Rights in an Era of Globalization, 9 INT. MIGRATION & INTEGRATION 42, 68 (2008).
18. A number of noncitizen voting regimes are based on this sort of principle of reciprocity. Still others reflect the decision by a former colonial power to permit citizens of former colonies to have status as electors. Portugal, for example, grants citizens of Brazil residing in Portugal the right to vote.
19. For an excellent analysis of the Court's opinion and a discussion of the alien suffrage movement in Germany written in the immediate aftermath of the Court's decision, see Gerald L. Neuman, We Are the People: Alien Suffrage in German and American Perspective, 13 MICH. J. INT'L. L. 259 (1991 - 1992).
20. Neuman argues, among other things, that the German Court's conceptualization of the polity reflects a particular conception of nationhood formed in the nineteenth century when " linguistic and cultural nationalism... led to an emphasis on nationality rather than residence as a crucial factor in defining a polity."
21. See Rainer Bauböck, Expansive Citizenship - Voting Beyond Territory and Membership, 38 PS: POL. SCI. & POL. 683 - 687 (2005).
22. Chile, Malawi, New Zealand, and Uruguay permit noncitizens to vote, after a period of permanent residence, in national elections.
23. (Citing lower socioeconomic status and lack of official-language mastery of noncitizens as the primary explanations for lower voter turnout).
24. Cf. J. M. Mancini & Graham Finlay, " Citizenship Matters" : Lessons from the Irish Citizenship Referendum, 60 AMER. QUART. 575, 585 (2008) (noting that the rise of the temporary work system in Ireland and the proscription of birthright citizenship for children of nonpermanent residents, will lead to emergence of two classes of noncitizens and workers - one with full social and economic benefits and one with " minimal recourse to even basic protections" ). The United States, similarly, has become increasingly reliant on temporary and undocumented immigrants, who are not eligible for naturalization under current law, to serve its labor needs at both the high and low end of the markets.
25. One possible solution to this bureaucratic " end run" around the extension of the franchise to persons with a meaningful stake in the society is to grant automatic voting rights or naturalization to anyone, regardless of status, after a certain number of years of residence.
26. See RUTH RUBIO-MARÍN, IMMIGRATION AS DEMOCRATIC CHALLENGE: CITIZENSHIP AND INCLUSION IN THE UNITED STATES AND GERMANY (Cambridge Univ. Press 2000) (advancing such a proposal).
27. Yick Wo v. Hopkins, 118 U.S. 356 (1886) (establishing that the equal protection clause applies to persons, not just citizens, and emphasizing that the right to the fruits of one's labor is protected regardless of citizenship, in the process of declaring San Francisco's denial of permits to operate laundries to Chinese residents a violation of the equal protection clause).
28. See also Graham v. Richardson, 403 U.S. 365 (1971) (striking down Arizona law denying noncitizens access to welfare benefits on the ground that noncitizens were entitled to heightened protection under the equal protection clause and that the state's interest in saving money by reserving social service expenditures for its own citizens was not compelling).
29. Zadvydas v. Davis, 533 U.S. 678 (2001) (noting that due process protections apply to noncitizens).
30. Bridges v. Wixon, 326 U.S. 135, 161 - 162 (1945) (Murphy, J., concurring) (noting that the First and Fifth Amendments " extend their inalienable privileges to all persons and guard against any encroachment on those rights by federal or state authority" ). T. H. Marshall elaborated the now-classic paradigm followed by states in their extension of various types of rights to the people - a process he argued occurred in parallel to the development of the modern state itself: states moved from extending various civil rights, to protecting political rights, which ultimately enabled rights holders to demand for themselves social and economic rights.
31. See T. H. MARSHALL, CLASS, CITIZENSHIP AND SOCIAL DEVELOPMENT: ESSAYS, WITH AN INTRODUCTION BY SEYMOUR MARTIN LIPSET (Doubleday 1964).
32. As David Earnest, among other scholars, has pointed out, " noncitizens have won their rights in a reversed sequence." For noncitizens, the protection of civil rights has been followed by the extension of social and economic rights, both in the United States and Europe, though in the U.S., those rights at the federal level have been more precarious. The political rights of voting and officeholding, by contrast, represent the final stage of evolution.
33. ALEXANDER BICKEL, THE MORALITY OF CONSENT 53 - 54 (Yale Univ. Press 1975).
34. Peter Schuck has argued that the " marginal benefits to most aliens of moving from legal resident status to full membership are slight" and that " the right to vote is probably unimportant to most aliens." .
35. Peter Schuck, Membership in the Liberal Polity: The Devaluation of American Citizenship, in IMMIGRATION AND THE POLITICS OF CITIZENSHIP IN EUROPE AND NORTH AMERICA 58 (William Rogers Brubaker ed., 1989).
36. See United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) (holding that the Fourth Amendment, which protects the " right of the people" to be free from unreasonable searches and seizures, did not apply to a Mexican national in Mexico whose home was searched by U.S. officials).
37. Cabell v. Chavez-Salido, 454 U.S. 432, 439 - 40 (1982).
38. (Noting that article I of the Constitution, which provides that members of the House of Representatives shall be " chosen every second Year by the People of the several States" could be interpreted to prohibit alien suffrage, as could the references to the " People" in the Preamble and the Tenth Amendment, but that it appears to be settled that alien suffrage is " neither constitutionally compelled nor constitutionally forbidden").
39. (Noting that states in which courts have assertively extended civil and social protections to noncitizens have been less likely to extend voting rights to the same populations than states with less " activist" judiciaries, thus disproving the assumption made by some scholars that voting rights are likely to be the product of activist judiciaries). He explores this finding with relation to case studies of Germany, the Netherlands, and Belgium.
40. See Michael Castagna et al., Securing Non-Citizen Voting Rights: Determining the Feasibility of Enabling Legislation in Massachusetts 1 - 2 (2005), available at http://ase.tufts.edu/uep/Degrees/field_project_reports/2005/4-securing_noncitizen_voting_rights.pdf.
41. Chavez-Salido, 454 U.S. at 439 - 440.
42. The Court also notes that " judicial incursions in this area may interfere with those aspects of democratic self-government that are most essential to it." .
43. For a discussion of these efforts in this decade, see Cristina M. Rodríguez, The Significance of the Local in Immigration Regulation 106 MICH. L. REV. 567, 581 - 609 (2008) (describing state-based strategies for immigrant incorporation).
44. See also IRENE BLOEMRAAD, BECOMING A CITIZEN: INCORPORATING IMMIGRANTS AND REFUGEES IN THE UNITED STATES AND CANADA 10 (Univ. California Press 2006) (noting that citizenship requirements for social services, licensing, and employment have been disappearing).
45. Compare PETER SPIRO, BEYOND CITIZENSHIP: AMERICAN IDENTITY AFTER GLOBALIZATION 18 - 21 (Oxford Univ. Press 2008) (arguing that we fetishize the right to vote and that other mechanisms, such as ability to donate to political parties and the incentive for politicians to pay attention to the interests of future voters, ensure that noncitizens have a voice in the political process).
46. With Cristina M. Rodríguez, Book Review, Peter Spiro, Beyond Citizenship: American Identity after Globalization, 103 AM. J. INT'L. L. 180, 194 - 195 (2009) (critiquing the view that formal citizenship status has lost its significance, in part on the ground that lack of access to the franchise is politically significant for noncitizens).
47. This sort of distinction is arguably present in the Fourteenth Amendment itself. The equal protection and due process of law guarantees apply to persons, exerting a baseline restraint on arbitrary action by the state, whereas the privileges and immunities clause, which was intended as the centerpiece of the Fourteenth Amendment even though it means little today, makes clear that certain entitlements beyond the baseline belong to citizens only.
48. Alan McRobie, The Electoral System, in ESSAYS ON THE CONSTITUTION 312, 323 (Philip A. Joseph ed., 1995).
49. See NEILL ATKINSON, ADVENTURES IN DEMOCRACY: A HISTORY OF THE VOTE IN NEW ZEALAND 10 (Univ. Otago Press 2003).
50. (Detailing the history of the adoption of proportional representation, likening the reform to the adoption of women's suffrage, and attributing it to a concern for equality and fairness, a general " crusade for the moral reform of politics, " and the machinations of particular individuals and parties).
51. See, e.g., Matthew S. Palmer, New Zealand Constitutional Culture, 22 N.Z. UNIV. L. REV. 565, 574 - 576 (2007).
52. Elizabeth McLeay, Evolving Rules in a Parliamentary Democracy, 6 Election L.J. 421, 421 (2007).
53. (Discussing whether American conceptions of popular sovereignty and federalism would preclude voting rights at the state level, concluding that " this history of federalism supports the view that the Constitution does not make national citizenship a prerequisite for voting in the states, " and that federalism would not preclude local voting rights in any case).
54. See BRYAN FANNING ET AL., IRISH POLITICAL PARTIES, IMMIGRATION, AND INTEGRATION IN 2007, at 14 (2007), available at http://www.law.ed.ac.uk/staff/joshaw/files/immigrationandintegrationinparties2007.pdf.
55. In the Matter of Article 26 of the Constitution and in the Matter of The Electoral (Amendment) Bill, 1983, [1984] I.R. 268 (Ir.), available at http://www.supremecourt.ie/supremecourt/sclibrary3.nsf/(WebFiles)/3B9009F8586D9528802575F3002DA959/$FILE/Electoral1983_[1984]IE268.htm.
56. For a sweeping account of how the United States has used its immigration and citizenship laws to construct itself as a nation, see ARISTIDE ZOLBERG, A NATION BY DESIGN: IMMIGRATION POLICY IN THE FASHIONING OF AMERICA (Harvard Univ. Press 2006).
57. (Noting that jus soli states are more likely to extend noncitizen voting rights than jus sanguinis states).
58. It should be noted, however, that New Zealand is self-consciously bicultural, given the place the indigenous Maori population occupies in the society's politics
59. (Noting the practice of alien suffrage in various territories and its continuation after those territories became states)
60. Cf. Cristina M. Rodríguez, Clearing the Smoke-Filled Room: Women Jurors and the Disruption of an Old-Boys ' Network in Nineteenth-Century America, 108 YALE L.J. 1805 (1999) (noting that the granting to women of political rights such as voting and the right to sit on juries in the territories of Washington and Wyoming was considered a means of attracting women to the Western territories).
61. Jamin Raskin has advanced a different historical argument for the disappearance of alien suffrage, contending that suffrage has always been exclusive in some way in U.S. history. Whereas race, gender, property, and wealth used to serve as bases for exclusion, today citizenship status performs that role.
62. See Jamin Raskin, Legal Aliens, Local Citizens: The Historical, Constitutional and Theoretical Meanings of Alien Suffrage, 141 U. PENN. L. REV. 1391, 1395 (1993).
63. See also HIROSHI MOTOMURA, AMERICANS IN WAITING: THE LOST STORY OF IMMIGRATION AND CITIZENSHIP IN THE UNITED STATES (Oxford Univ. Press 2006) (discussing a forgotten tradition of treating immigrants as citizens-in-waiting, entitled to access to the same rights and privileges as citizens).
64. See Richard Bedford, New Zealand: The Politicization of Immigration (2003), available at http://www.migrationinformationorg/Profiles/display.cfm?ID=86.
65. For a discussion of this history, see Elizabeth McLeay, Democratic Experiments in New Zealand, Dept. of Senate Occasional Lecture Series, Parliament House 93 (2005), available at http://www.aph.gov.au/senate/pubs/pops/pop44/mcleay.pdf.
66. (Noting wide participation as a value but acknowledging that more scholarly attention should be given to understanding New Zealand's unusual alien suffrage practice within that context).
67. See REPORT OF THE ROYAL COMMISSION ON THE ELECTORAL SYSTEM § 9.5 (1986), available at http://www.elections.org.nz/voting/mmp/royal-commission-report-1986.html.
68. In 2002, approximately 54 percent of new immigration approvals were of citizens of countries in Asia
69. See 56 SEANAD DEB. Col. 1067 (Jul. 10, 1963).
70. (" I wonder whether it is not a matter of justice that we should treat British residents in this country on similar terms.... In my view the British acted with considerable generosity after 1948 in the matter of giving citizenship to our people" ). Debates in the Irish Seanad also suggest that some lawmakers were motivated by the fact that " British citizens living here contribute to taxes and to rates. They perform jury service. They contribute in every way as citizens, but they are restricted from voting." .
71. See 56 SEANAD DEB. Col. 1069 (Jul. 10, 1963).
72. Alexandra Starr, Ireland Transformed, SLATE, Oct. 16, 2008, http://www.slate.com/toolbar.aspx?action+print&id=2201909.
73. See infra note 71 and accompanying text
74. see also John A. Harrington, Citizenship and the Biopolitics of Post-nationalist Ireland, 32 J. L. & SOC'Y. 424, 443 - 445 (2005) (detailing government arguments in defense of the referendum, including the claim that citizenship " tourism" was burdening the health care system).
75. See Bryan Fanning, Racism, rules and rights, in IMMIGRATION AND SOCIAL CHANGE IN THE REPUBLIC OF IRELAND 6, 17 - 21 (Bryan Fanning ed., Manchester Univ. Press 2007).
76. One assessment of the referendum as compatible with open immigration policy emphasizes Ireland's increased reliance on temporary workers, suggesting that the citizenship referendum represents a means of continuing immigration while policing entry into citizenship in a way that facilitates the emergence of two workforces, or two classes of membership.
77. BRYAN FANNING, NEIL O'BOYLE & JO SHAW, NEW IRISH POLITICS: POLITICAL PARTIES AND IMMIGRANTS IN 2009 (2009), available at http://www.ucd.ie/mcri/resources/new_irish_politics_report_final.pdf (drawing this observation from the reports of immigrant candidates, members of political parties, and individuals active in voter registration campaigns claim).
78. see also Bryan Fanning & Fidele Mutwarasibo, Nationals/non-nationals: Immigration, citizenship and politics in the Republic of Ireland, 30 ETHNIC & RACIAL STUD. 439, 444 (2007) (" Concerns raised by NGOs months in advance of the election that non-citizen immigrants entitled to vote in the local government elections would encounter difficulties in registering to vote proved justified" ).
79. (Emphasizing that political incorporation works better when " government extends a hand, " offering " concrete settlement assistance" and recognizing " diverse identities" )