New York City has made some waves by–over the opposition to Mayor Bloomberg–moving forward with a law that would allow non-citizens to vote in local, but not state or federal elections. There are some issues about whether New York City has the authority to enact this law under the New York Constitution, which I don’t have any thoughts on. The more interesting question is whether a city could constitutionally enact a law that would allow a non-citizen to vote in a federal election (put aside for the moment any statutory voting provisions).

Contrary to what many think, the Constitution does not provide an affirmative grant of the right to vote. It appears nowhere in the Constitution. Rather, through a series of Amendments, the Constitution places limitations on who and how the state and federal government can exclude from the franchise–race, gender, poll taxes, and age. Most noteworthy, all of these provisions speak of denying the right to vote of “citizen[s].”

Amendment 15 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Amendment 19 The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Amendment 24 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

(For a history of why the 24th Amendment only applies to federal elections, see here).

Amendment 26 1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

Indeed, other than the voting provisions, the Constitution only uses the term citizen to define the qualifications for the House of Representatives, the Senate, the Presidency, guarantee of Privileges and Immunities (Article IV), the 11th Amendment (“citizens of another state”), and the 14th Amendment (naturalization and “privileges or immunities”). There isn’t much that the Constitution favors Citizens and not persons, but the right to vote is one of them.

Of course, nothing in the text of the Constitution would *stop* a state from giving noncitizens the right to vote. But what are the cultural or philosophical issues about extending the franchise in this manner?

This seems to be part of a broader trend, as evidenced by California’s decision to allow noncitizens to serve on a jury, to break down the divisions between citizens and noncitizens–except for campaign donations. They can’t do that. Too dangerous. Wouldn’t that be a bitch? Benny Bluman could vote for local candidate in New York, speak about him, but not donate to his campaign.

Update: My friend Derek Muller addresses this issue in his article in the Arizona State Law Journal, titled, “Invisible Federalism and the Electoral College.”

“Alien suffrage was quite common during the nineteenth century, coming to a peak in 1875 when twenty-two states and territories granted aliens the right to vote.”237 That ended in the 1920s, at which point all states required citizenship as a condition to voter eligibility.238 Today, every state prohibits noncitizens from voting in federal elections.239 Federal law, too, prohibits aliens from voting in federal elections.240 There are, however, jurisdictions that allow,241 or seek to allow,242 noncitizens to vote in local elections. And as resident aliens have a significant interest in the locales where they reside, and are subject to other political obligations like taxation, there have been particularly strong arguments in favor of extending suffrage to at least a set of them.243