Analyzing Wisconsin’s Eligibility to Vote in the Referendum

It doesn’t seem like a big change.

At first glance, the state referendum question on the November 5 ballot appears to ask only whether the Wisconsin state constitution should allow “only citizens” to vote, rather than allowing “all citizens” to vote, and spells out that it applies to all types of citizens. of election.

Since noncitizens can’t vote now, the amendment wouldn’t immediately change anything if it passed, experts say.

And yet, opponents warn, the deceptively simple language approved by the state’s Republican-led Legislature carries with it the baggage of right-wing conspiracy theories about immigration and voter fraud, potentially weakening voting rights in the long term and possibly complicating future efforts to expand youth voting.

Federal law already prohibits noncitizens from voting in federal elections. No state allows them to vote in state elections. And fewer than two dozen U.S. communities, none of them in Wisconsin, allow noncitizens to vote in local elections.

Supporters of this change and similar measures elsewhere point to those 17 communities and say they want to close the door on any attempt to do the same in Wisconsin. But that door has been closed for over a century, and no one has tried much to open it in that time.

Allowing noncitizens to vote “would dilute the rights of United States citizens,” the amendment’s original sponsor in the Assembly, then-Republican Majority Leader Jim Steineke, told the Senate elections committee in 2001. However, courts typically reject that argument if they find that municipal governments have rationally decided that noncitizens have a legitimate interest in local affairs, wrote Joshua Douglas, a law professor at the University of Kentucky, in a 2017 article.

By pushing this change, Republicans are “going into a national frenzy” around false claims about immigration and voter fraud, says Beloit Sen. Mark Spreitzer, the committee’s top Democrat.

Former President Donald Trump, now the Republican Party’s presidential candidate, has exaggerated the crimes committed by undocumented immigrants from the moment he declared his candidacy in 2016. Trump also baselessly claims that he lost the 2020 race because of voter fraud. Now he has merged those positions into a baseless conspiracy theory that Democrats are bringing in undocumented immigrants to illegally vote against him.

“We’re seeing a lot of xenophobic, fear-mongering language and lies about immigrants,” says Christine Neumann-Ortiz, executive director of the Milwaukee-based immigrant advocacy organization Voces de la Frontera. She says Trump is using “false xenophobic rhetoric to incite his followers to profile people” and question their citizenship to try to stop them from voting.

Spreitzer and Bree Grossi Wilde, executive director of the State Democracy Research Initiative at the University of Wisconsin Law School, also say the election language is misleading by suggesting that the current constitution allows noncitizens to vote or does not address the question.

In reality, noncitizen voting is extremely rare and is typically a mistake rather than part of an organized conspiracy, according to studies conducted by liberal and conservative organizations and individual states. The Wisconsin Elections Commission’s annual reports show just two cases in the spring 2023 election and none in most previous years.

But if this change passes, Spreitzer and Neumann-Ortiz worry that Republican lawmakers will try to pass a law that would require proof of citizenship to vote. Neumann-Ortiz warns that such a measure could prevent voting not only by non-citizens but also by citizens who cannot easily find their birth certificates or other documents, a problem that previously arose when Wisconsin tightened voter ID requirements., from 2016.

The U.S. Supreme Court blocked a similar Arizona law from being applied to federal elections, leading Arizona officials to create separate voter lists and ballots for federal and state elections until the state’s highest court threw out that system this month past. In Wisconsin, such legislation could be vetoed by Democratic Gov. Evers or face a challenge at the state Supreme Court, which currently has a liberal majority.

The amendment’s current Senate sponsor, Sen. Julian Bradley (R-New Berlin), did not respond to requests for comment, while the current Assembly sponsor, Majority Leader Tyler August (R-Walworth), was unavailable for comment .

Debates over immigration and voting were very different early in the country’s history. About 40 states and territories have allowed voting without citizenship as an incentive to attract European immigrants, according to research by Ron Hayduk, a professor of political science at San Francisco State University. When Wisconsin became a state in 1848, its original constitution granted voting rights to immigrants who declared their intention to become citizens, a provision copied by other states.

This all changed at the beginning of the 20th century against immigration from southern and eastern European countries, Hayduk writes. States began changing their constitutions to prohibit noncitizens from voting, including Wisconsin, where a 1908 amendment took effect in 1912. By the 1928 presidential election, noncitizens were no longer allowed to vote anywhere. of this country.

As part of the crackdown on illegal immigration, Congress voted in 1996 to impose criminal sanctions on any noncitizens who voted in presidential or congressional elections.

But four years earlier, the Washington, D.C., suburb of Takoma Park, Maryland, had extended voting rights to noncitizens in municipal elections, arguing that all city residents had an equal interest in local affairs. Another 10 Maryland suburbs followed suit.

Progressive activist Austin King advanced a similar proposal in his successful 2003 campaign for a seat on the Madison Common Council, according to Hayduk’s 2006 book, “Democracy for All: Restoring Immigrant Voting Rights in the United States.” United.” However, King apparently never introduced an ordinance to legalize non-citizen voting in Wisconsin’s capital. The state Legislative Reference Office also says it is not aware of any state legislator who has introduced any bills on the issue.

Trump’s 2016 campaign rhetoric demonizing immigrants heated up the issue. On the same day he won the White House, San Francisco voters allowed noncitizens to vote in school board elections, after defeating similar proposals in 2004 and 2010.

Most communities couldn’t do that, Douglas found. He analyzed the constitutions and laws of every state and concluded that only 14 states – including Wisconsin, Illinois, California and Maryland – and the District of Columbia “did not have clear impediments” at that time for local governments to allow no vote. citizens on their own.

Other experts disagree that Wisconsin communities have that power. Analyzes by the LRB and the State Democracy Research Initiative conclude that noncitizen voting is prohibited by state law, although non-lawyers may think that the legal language reflects the constitutional provision that is not considered an explicit prohibition.

And although Takoma Park relied on the home rule authority granted by the Maryland state constitution, the Wisconsin Supreme Court weakened home rule guarantees, allowing state law to take precedence, the LRB says.

In the wake of the San Francisco vote, right-wing activists launched a national campaign to ban noncitizens from voting in state constitutions. At the time, only Arizona’s constitution explicitly limited voting to citizens, while Wisconsin and all other states allowed “every” or “any” citizen to vote.

North Dakota voters approved a noncitizen voting ban in 2018, followed by Alabama, Florida and Colorado in 2020 and by Ohio and Louisiana in 2022. This year, Wisconsin is one of eight states with similar referendums, along with Iowa , Missouri, Idaho, Kentucky, North Carolina, Oklahoma and South Carolina. Of these 14 states, only Wisconsin, Ohio, Colorado and Oklahoma were on Douglas’s list of states where communities could allow noncitizens to vote.

Meanwhile, a few more cities have allowed noncitizens to vote in local elections, including Washington, D.C., and Oakland, Calif., (the latter only for school board races) in 2022. In Vermont, the Democratic-controlled state Legislature granted requests of three communities allow non-citizens to vote, overriding the vetoes of the state’s Republican governor. A similar measure from New York City is awaiting a decision from that state’s highest court, after lower courts found noncitizen voting unconstitutional and faulted the city council for failing to hold a mandatory referendum.

Wilde’s analysis also questions whether the amendment’s wording could undermine future efforts to expand youth voting. Newark, NJ, allows 16-year-olds to vote in school board elections, while similar measures have been passed but not implemented in Berkeley and Oakland, California. Takoma Park, three other Maryland communities and Brattleboro, Vermont, have also allowed 16-year-old children to vote in local elections.

Perhaps most significantly, Wilde notes, 20 states—including Illinois and Iowa—and the District of Columbia allow 17-year-olds to vote in at least some primary elections if they are 18 at the time of the general election, and Democrats in four other states allow 17-year-olds to vote in presidential primaries and conventions under the same conditions. Spreitzer was among the Democratic co-sponsors of a recent bill to allow 17-year-olds to vote in Wisconsin primaries, but most Republicans let it die in committee.

However, it is still possible that the youth vote could be expanded, under a separate constitutional provision that allows the legislature to extend “the right of suffrage to additional classes” if voters agree in a binding referendum, says Wilde. This provision was first used to grant voting rights to black people in the 19th century.

Douglas supports efforts by local governments to expand voting rights to noncitizens, 16-year-olds and others, writing that they should “grant rights to anyone who has a sufficient interest in local affairs and has the appropriate incentives and ability to make informed choices about who should lead them.” He says this could be an experiment in broader reforms, noting that women have won the right to vote in school board elections for the first time in some states, including Wisconsin.

This is the fifth Republican-backed constitutional amendment on the Wisconsin ballot this year. In August, voters defeated two other amendments to restrict the governor’s power over federal funds.

But these changes were the subject of a well-funded “vote no” campaign. This is not the case this time, with presidential, congressional and legislative candidates withdrawing all available funding. Without such campaigns, Wisconsin voters have approved most constitutional changes in recent years.

Neumann-Ortiz hopes that doesn’t happen, saying, “Our constitution should be about expanding rights, not limiting rights, and not being used cynically to disenfranchise voters.”