Right to Participation and Representation
Government policies and court rulings play a significant role in shaping the right to participate and be represented. Contractions in the voting rights of US citizens and immigrants have emerged through many types of policies. State and local policies, especially in the heyday of Jim Crow segregation and exclusion, disenfranchised eligible voters through literacy testing, poll taxes, early registration, and residency requirements for voting. Today, states constrain the right to participate through voter-ID laws and policies that require proof of US citizenship, reduce early voting access, restrict same-day registration, restrict voter registration drives, purge voter files, restrict voting among felons and ex-felons, limit voter assistance, and limit student voter registration efforts on college campuses.
The right to vote can be expanded to US noncitizens and, indeed, there is a storied history of states in the Midwest and the South during the 1800s and early 1900s that allowed noncitizens to vote, as long as they declared their intention to become US citizens. Federal territories, states, and localities in early America attracted immigrants by expanding them access to suffrage and holding political office, while enacting policies that contracted these same rights for non-Whites and women. Until the 1920s, many states granted voting to white immigrants who were “declarant aliens,” meaning that they had declared their intent to become U.S. citizens. Importantly, the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIR-IRA) prohibited, for the first time, noncitizens from being able to vote in national elections. At the same time, the law continued to allow states to provide for noncitizen voting in state elections, as provided in the US Code (18 USC 611).
More broadly, states can expand the right to participate and be represented by passing more inclusive election laws, allow legal immigrant to serve as elections officials, elect or appoint undocumented immigrants to state or local public offices and boards, and ensure that immigrants are represented on policing task forces. The US Constitution stipulated that apportionment would be based on a count of persons. The Supreme Court has also upheld the principle of equality of representation based on one person, one vote in Reynolds v. Sims (1964) and upheld recently in Evenwel v. Abbott (2016) that maps would be based on all individuals and not merely US citizens. In addition to Congressional apportionment and redistricting based on a count of persons, all individuals in the United States who are not incarcerated have the right to engage in acts of political participation such as encouraging others to vote, educating them about the political process, and engaging in protest activity. In addition, legal permanent residents are allowed to make campaign contributions, even as they are not allowed to vote in federal elections. Finally, a few municipalities and school boards today provide the right to vote to residents and parents, respectively, regardless of their legal or immigration status.
Immigrant Rights: Top 5 States
3 states have local jurisdictions that have expanded voting rights on local election and/or school board elections to undocumented residents.
1 state passed a law that formalizes the political inclusion of undocumented immigrants with regard to serving on state and local boards and commissions.