I went to write an article about how guns and voting are similar because they’re both Constitutional rights… then discovered that the Constitution doesn’t actually give or protect a right to vote. Call me flabbergasted.
What the Constitution does say:
Article I, Section 2: Members of the House of Representatives are “chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”
This ties federal voting qualifications for the House to whatever qualifications a state sets for its own largest legislative body (typically the lower house). States originally set their own rules, often limiting voting to white male property owners (or similar restrictions).
Article I, Section 4 (Elections Clause): “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”
States primarily control the “times, places, and manner” of congressional elections, but Congress can override or add rules.
Article II, Section 1: States appoint presidential electors “in such Manner as the Legislature thereof may direct.” Congress sets the uniform day for choosing electors and for them to cast votes. (This allows states flexibility in how they select electors; all now use popular vote, but the Constitution does not require it.)
Other early provisions (e.g., original Senate selection by state legislatures, later changed) and the 12th Amendment (1804) refined the Electoral College process but did not address voter qualifications.
15th Amendment (1870): Prohibits denying or abridging the right to vote “on account of race, color, or previous condition of servitude.” (Primarily aimed at protecting Black men after the Civil War.)
19th Amendment (1920): Prohibits denying or abridging the right to vote “on account of sex.” (Women’s suffrage.)
24th Amendment (1964): Prohibits denying or abridging the right to vote in federal elections (President, Vice President, Congress) “by reason of failure to pay any poll tax or other tax.” (Banned poll taxes used to suppress voting.)
26th Amendment (1971): Prohibits denying or abridging the right to vote for citizens “who are eighteen years of age or older… on account of age.” (Lowered the voting age from 21 during the Vietnam era.)
14th Amendment, Section 2 (1868): Reduces a state’s representation in Congress if it denies the vote to eligible male citizens (age 21+ at the time) for reasons other than “participation in rebellion, or other crime.” (This was a penalty mechanism, rarely enforced, and used “male” language that was later superseded.)
The Constitution also requires a “Republican Form of Government” for states (Article IV, Section 4), which implies elections, but courts have rarely used this to broadly define voting rights.
Voter qualifications (e.g., citizenship, residency, age minimums, felony disenfranchisement in some cases, registration rules) are still primarily set by states, as long as they do not violate the amendments above or other constitutional protections (like equal protection under the 14th Amendment).
Thank you Grok. Well that was a bit of an education. Every citizen of the United States of America is entitled to the right to keep and bear arms, with only a very few caveats (for instance, you’re in jail, or you’re going into a Federal building where they accept the burden of protecting you, etc.). I realize not everyone upholds it, but that’s what it says. Fair enough.
Apparently, that’s just not true with voting. Color me surprised. If the above is true (and it does appear to be), then California and NYC should legally be able to decide they want to ignore citizenship as a requirement for voting. It certainly seems to imply that there is currently a strong argument for ID-less voting in those states. That was not what I expected to be writing in this missive.
Looking at the above, I have to say that while I disagree with it and think it should be codified to be voting for citizens only, it appears that the Constitution does, at the moment, appear to uphold the states that choose not to check ID. So at this point, I urge you all to go talk to your Senators and Congress critters and demand they offer up an Amendment to the Constitution which allows only for citizen voters. If that is added to the Constitution, all the other stuff goes away.
I have to ask myself, why didn’t our Framers insist on having only citizens vote? Was citizenship so difficult to prove that it was egregious and impossible to enforce? I find myself at a hella loss for words right now. I’ll leave the information with you, and hopefully someone will be able to tell me I just read something wrong. Because … I’m currently confused and upset.
The specific amendments about female and 18+ voting don’t otherwise change the fact that states set the rules. For example, property qualifications are still Constitutional, because they don’t deny anyone the right to vote based on sex, or age >= 18.
And yes, it’s pretty clear that a state could give the vote to people under 18, or to non-citizens. To do that for votes for Congress, all they have to do is set the corresponding rule for their state legislature. For the vote for President (technically, for Electors), they don’t even have to do that; determining how electors are chosen is basically entirely open (other than, again, not allowing sex or age if >= 18 to be a factor). It will be fascinating to see if any state tests this at some point. Some states have already started to allow non-citizen voting for a few cases, like local elections, but not yet for the state legislature.
I would expect an attempt to pull such a stunt to trigger a new Amendment saying that only citizens can vote. Such an amendment really is needed now, and I think it should be worded to say that it applies to every election and referendum at any level, and that it also sets a minimum requirement for elected office.
What about “States primarily control the “times, places, and manner” of congressional elections, but Congress can override or add rules.” – and have Congress add a rule that only citizens can vote in national elections, and must provide photo ID to do so instead of going the ammendment route which is 2/3 vote of both houses and then 2/3 of the states ratifying it
I think “manner” is interpreted to mean the mechanics of how the voting is done. So a mandate for paper ballots would be valid, but a requirement to be a citizen is not “manner”. Note that the Constitution says “make or alter such regulations” — meaning those about time, place, and manner — it does not say “add” and doesn’t give any authority to make up other rules.
This sort of issue has come up before. At one point a term limit was imposed by law, and it was struck down on the grounds that Congress has no Constitutional power to add qualifications for office, only the ones enumerated in the Constitution are valid.
BTW, it’s 3/4 of the states ratifying (by vote of the legislature, or vote of a Convention called for the purpose, depending on what the proposed amendment calls for).
I’d like to see an amendment mandating citizenship for every election and every vote (e.g., ballot question) at every level, not just national elections. The argument against non-citizens voting (or being elected, for that matter) are every bit as valid at the state and local level as they are at the Federal level.
“why didn’t our Framers insist on having only citizens vote?”
Because they probably never considered that non citizens could ever be allowed to vote. And voters had to meet stringent qualifications too, so they might actually have been fine with a non citizen voting, as long as he was a white, male property owner resident in the district. I don’t know this to be true though.
Consider that even in the largest cities in 1790, all the voters would have known each other or they had a friend who knew the person. Only about 6% of the population qualified to vote and Philadelphia had a population of 28,000, giving only about 1,700 voters in the largest city at the time. Makes it harder to stuff ballot boxes…
If you will indulge me in a few seconds of editorializing…
Rights are fundamental and exist whether you have free exercise of them, or if authorities/forces prevent you from freely exercising them. You, as a human, have a fundamental human right to self defense against threats, both personal and political. You also have a fundamental human right to have a voice in how you are governed. Even if you are told you do not have the proper credentials to vote, that right still exists.
And… thanks for indulging me.
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So… The US Constitution does not require proof of citizenship to vote. Of course it didn’t. At the time it was ratified, the US was all of about a decade old. Who was a citizen? How did you prove it? The authors of our founding documents were smart enough to recognize times will change and they wrote a document that covered as many of the possibilities as they could think of. Photo ID was not one of them apparently.
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Which means that just because the Constitution does not specifically does not state citizenship (and proof thereof) is a requirement does not mean it is NOT a requirement. If someone can provide a supportable and rational justification for allowing someone who is not a citizen to vote, I am interested in hearing it. Here I am, born and raise in NY, currently living in a different state, and potentially vacationing in a 3rd state on election day. So… which district should I vote in? Do I really have a fundamental human right to add my voice to a governance that is not where I live? I was born in NY, but I should not be allowed to vote in NY without demonstrating I have the residency required to express my voice in the local, State and national representation of that State. Further to that point, if I am vacationing in France, I should have no say in who the French want in their government.
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Currently, in MN (correct me if I got the state wrong), a registered voter can “vouch” for up to eight people without any form of ID. No proof they are voting in the correct district except for the word of one individual. Will that change the outcome of the Presidency? Doubtful, but can it alter the makeup of the city Assembly? Absolutely.
Make that make sense to me.