With ballot question, Wisconsin voters will decide the limits on noncitizen voting

This article was originally published by Votebeat, a nonprofit news organization covering local election administration and voting access.

Alexander Shur, Votebeat

Sep 17, 2024 at 4:30am EDT

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A proposal on November’s ballot to ban voting by noncitizens across Wisconsin would have little practical effect on who can vote under existing laws. But it would shut the door on an option that some advocates of wider voting access want to retain: letting municipalities open their local elections to noncitizens or younger voters.

Current laws already bar anyone who is not a U.S. citizen from voting in elections for federal or statewide Wisconsin offices. But supporters of the proposed constitutional amendment have pointed to municipalities in other states that let noncitizens vote in races for city council or school board, for instance. They say the amendment is key to making sure that such a thing doesn’t take hold in Wisconsin.

They also say heading off noncitizen voting at the local level would free local clerks from having to prepare separate ballots for those voters without the federal and state races, which could complicate election administration and lead to more errors.

The proposed amendment is part of a movement by Republicans nationwide to raise concerns about large-scale illegal voting by noncitizens in state and federal elections, even though experts say that’s not happening.

Similar measures are coming before voters in North Carolina, Iowa, and several other states this November.

The measure is also the latest example of Republicans who control the Wisconsin Legislature using constitutional amendments to enact election-related policies and bypass Gov. Tony Evers, a Democrat. Unlike normal bills, constitutional amendments can’t be vetoed by the governor.

“Practically speaking, it doesn’t seem like there’s going to really be an impact, other than to cut off the possibility that a locality would allow for noncitizens to vote,” said Bree Grossi Wilde, executive director of the State Democracy Research Initiative at the University of Wisconsin Law School.

Experts say there are no Wisconsin municipalities that currently extend voting rights to noncitizens or people younger than 18.

Opponents of the amendment say it could be the first step toward future legislation requiring proof of citizenship to register to vote, a move that could disenfranchise some voters. Some also object to the state potentially blocking municipal experiments in extending the franchise to 17-year-olds and noncitizens who want to have a say in their community.

The current constitutional language on voting says that “every” U.S. citizen 18 or older has a right to vote. Under the proposed amendment, it would instead say that “only” a U.S. citizen 18 or older can vote in national, state, and local elections — language that opponents say is less inclusive.

Bans on noncitizen voting have been proliferating around the country since 2020, when false claims of widespread noncitizen voter fraud spread across conservative circles and to the highest levels of the Republican Party. Former President Donald Trump, the GOP presidential nominee, urged House Republicans recently to force a shutdown of the federal government if Congress can’t pass legislation that would require all Americans to provide proof of citizenship to register to vote in federal elections.

The broad category of noncitizens can include immigrants who are in the country illegally, people on work visas, as well as legal permanent residents, some of whom have lived in the U.S. for decades. Some are brand new to the communities they live in, while others raised their children and owned businesses in them.

Noncitizen voting in federal elections is already illegal, and rare, because of robust systems at the state and local levels to check the eligibility of potential voters, and the high risks for anyone who tries: Noncitizens who attempt to vote illegally — including legal permanent residents — can face felony charges, loss of residency status, and deportation.

A Brennan Center for Justice analysis found that election officials overseeing 23.5 million votes across 42 jurisdictions in the 2016 general election referred about 30 incidents of potential noncitizen voting for further investigation or prosecution. A Heritage Foundation analysis of election fraud cases found two dozen prosecuted cases of noncitizens voting in the last 20 years.

But some areas do let noncitizens vote in local elections. Washington, D.C., for example, allows it, and over 500 registered to vote in a recent district council election, The Washington Post reported. In San Francisco, some noncitizens can vote in school board elections. Some cities in Vermont and Maryland also offer noncitizens the chance to vote in local elections.

In Wisconsin, some Democrats have voiced support for letting local governments allow noncitizen voting.

Christine Neumann-Ortiz, the executive director of the immigrant rights group Voces de la Frontera Action, also supports extending the franchise to noncitizens in some local elections, saying, “it makes our democracy stronger, the more people are involved.”

Supporters of the amendment argue that every ballot cast by a noncitizen’s ballot serves to cancel out a citizen’s.

Such measures “dilute the rights of United States citizens by extending the scope of qualified electors to non-citizens and discouraging the naturalization process,” Jim Steineke, a Republican former lawmaker and Assembly majority leader, said in a public comment about the proposal.

“Addressing this issue now will ensure votes are not diluted in the future,” he said.

Sen. Julian Bradley, R-Franklin, who was the lead Senate author on the measure for its latest passage, said, “It’s best for the government to address this concern before it becomes a problem.”

Bradley disagreed with the premise voiced by some amendment opponents that some noncitizens should be able to vote in local elections because they’re tax-paying residents of their communities. Spending money in a place doesn’t entitle people to voting in that place if they’re not citizens, he said.

For 60 years after its founding, Wisconsin did allow noncitizens with a stated intention of becoming citizens to vote. In 1908, during one of the peaks of immigration into the U.S., voters approved an amendment rescinding voting rights for that demographic. That amendment didn’t explicitly ban municipalities from allowing noncitizen voting in local elections, as the current proposal would.

So far, neither opponents nor supporters of the amendment have engaged in major mail or ad campaigns to publicize the issue. Without the public attention, many political observers predict the measure will pass, as constitutional amendment ballot questions typically do.

“I think it’s very important that more be done,” Neumann-Ortiz said. “In the absence of more public education, voters are going to vote against their own interests.”

During its two passages through the Legislature, just one group, Wisconsin Family Action, registered in favor of it.

“Wisconsin Family Action, along with the vast majority of people, believe that voting should only be eligible for U.S. citizens,” Daniel Degner, the group’s interim president, said in a statement, referencing a 2021 poll.

Groups fear citizenship proof requirement to vote

Amid a broader debate over whether noncitizens should have any right to vote, opponents of the amendment are calling attention to how it could affect current voters.

The League of Women Voters of Wisconsin and Neumann-Ortiz said the measure could be laying the groundwork for a future proposal requiring proof of citizenship at the polls. Such a measure at a national level could disenfranchise up to 10% of U.S. citizens, who don’t have readily available documents proving their citizenship, a Brennan Center analysis states.

In Wisconsin, people registering to vote are required to attest, under oath, that they are U.S. citizens and that they’ll be 18 by the time of the next election. They’re not required to show or send in proof of citizenship, but lying on the registration form is a felony. Wisconsin state agencies have additional checks designed to keep noncitizens from getting state-issued IDs to vote.

State law allows clerks challenging a voter’s registration form to ask that person to provide proof of naturalization, Wilde added, but it doesn’t require them to seek proof.

Proponents of the amendment dismissed the idea that the proposed constitutional amendment is a precursor to a stricter law on citizenship proof. And it’s not clear the amendment would be required for such a law to pass.

Nothing precludes the Legislature from enacting a citizenship proof requirement even now, before the amendment is passed, said Rick Esenberg, founder of the conservative Wisconsin Institute for Law & Liberty.

“It is up to the [Legislature] whether and to what extent it wishes to require proof,” he said. “And it will continue to be up to them once this is passed.”

Bradley, the Senate author, said he believes that Wisconsities should have to prove their U.S. citizenship to vote, but that the amendment has nothing to do with that.

“We will address the next question in the next legislature,” he said.

Federal law does not require documented proof of citizenship to vote in federal elections. So any new requirement would set up a conflict like the one that has played out in Arizona for over 10 years.

Arizona passed a law that requires documented proof of U.S. citizenship when registering to vote, but the U.S. Supreme Court blocked Arizona’s citizenship proof requirement from taking hold in federal elections. That means Arizona keeps a separate set of rolls for voters who haven’t provided such proof and who can cast ballots only in federal contests — for president and Congress.

A Votebeat analysis found that federal-only voters are disproportionately young adults living on or near college campuses — many of them likely college students from out of state who don’t have documents proving their citizenship readily available.

Would the new language weaken voter protections?

Some groups promoting voting access have raised another concern — that the new constitutional provision, if Wisconsinites approve it, would weaken voter protections. They point to the language of the proposed amendment, which would say “only” U.S. citizens can vote, compared with what they see as more inclusive language in the current constitution stating that “every” citizen can vote.

“From there, there could be further limitations to the right to vote, and if there’s any legal challenges on those limitations, we won’t be able to go back to the constitution and say, ‘Well, the constitution guarantees that every citizen can vote.’ So it will not have the protection that it currently has,” said Eileen Newcomer, voter education manager of the League of Women Voters of Wisconsin.

Dan Lenz, staff counsel at Law Forward, a group that seeks more inclusive voting policies, said there are other constitutional provisions that protect voting rights in Wisconsin. But he said the potential change to this one “makes it exclusive. And, however you look at it, that is something less than what we have now.”

Lenz said constitutional amendments are an improper vehicle for passing election policy because subsequent legislatures can’t quickly fix unintended consequences since the policy is enshrined in the constitution, not just state law.

“Instead, they have to restart the amendment process,” Lenz said, “and that takes a minimum of a number of years.”

Esenberg, from the Wisconsin Institute for Law & Liberty, said he was skeptical that the amendment’s passage would authorize another voting restriction that couldn’t be enacted now.

“Given the history of the amendment (which is clearly aimed at noncitizen voting), it’s hard to imagine what limitation that is not possible today would sneak in,” he said. “This [viewpoint] seems like an effort to make the issue something other than noncitizen voting.”

It’s possible that the provision could be challenged in court in the future, with the Wisconsin Supreme Court getting the final word on whether the change from “every” to “only” is legally substantive, Wilde said.

Constitutional amendment proposals have to pass the Legislature in two successive sessions before going to voters for a final say. Republicans say the amendment process helps them protect and advance conservative policies that they fear the Wisconsin Supreme Court, currently with a liberal majority, or a future Legislature with a Democratic majority could otherwise reverse.

They’ve also used it to pass policies that Evers would almost certainly veto.

In April, voters approved two GOP-written constitutional amendments banning private grants for elections and restricting outside assistance for election officials during the conduct of elections. In August, voters rejected two GOP amendments that would have given the governor less control over federal funds.

Some voting rights advocates have criticized Republicans for backing constitutional changes to enact narrow policy changes.

“That’s not the way to do business. It’s not the way to legislate and make policy,” Newcomer said. “The constitution is a sacred document that protects our rights, and like any change that’s going to be made to the constitution, we need to take it really, really seriously.”

Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Alexander at [email protected].

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