Abstract

Excerpted From: Ron Hayduk, Immigrant Voting Rights and the Quest for Universal Suffrage, 60 Harvard Civil Rights-Civil Liberties Law Review 317 (Winter, 2025) (165 Footnotes) (Full Document)

The acquisition of political rights--including voting rights--has been a vital tool for disempowered groups in American history to achieve economic, social, and civil rights. Because legislative bodies confer rights and make public policy, it is critical for all members of a polity to possess the capacity to select representatives. Otherwise, those without the vote are at risk of discrimination and bias because policy makers can more easily ignore their interests. The experiences of marginalized groups in the United States demonstrate that discriminatory public policies and private practices in employment, housing, education, health care, welfare, and criminal justice are inevitable by-products of political exclusion.

Previously excluded groups gained access to the franchise principally through political struggle, sometimes with the support of factions within political parties or via third parties, through social movements and independent organizations, or by using the courts. Ultimately, these groups needed the support of other sectors in society to win political rights. Agitation expressed by the property-less encouraged propertied men to extend the franchise to the former by 1856; the Abolitionist Movement and Reconstruction culminated in the ratification of the Fifteenth Amendment in 1870, which enfranchised black men; the Women's Suffrage Movement led men to enact the Nineteenth Amendment in 1920, which gave women the right to vote; the creative protests and urban rebellions by African Americans during the 1950s and 1960s drove a primarily white Congress to pass the Civil Rights Act of 1964 (CRA), which prohibits discrimination on the basis of race, color, religion, sex or national origin, and the Voting Rights Act of 1965 (VRA), which bans discriminatory voting laws and practices; and protests by younger adults during the 1960s led older adults to lower the voting age from twenty-one to eighteen in 1971 with the passage of the Twenty-sixth Amendment.

The VRA is the quintessential product in this lineage and represents one of the crowning achievements of the Civil Rights Movement: eliminating poll taxes, literacy tests, and other barriers to the vote that effectively disenfranchised African Americans and other poor people. The VRA established new mechanisms to ensure that these eligible voters are able to cast ballots, further entrenching the principle of “one person, one vote” in federal law and our national lexicon. In addition, the Civil Rights Movement fueled a “rights revolution” that has continued to secure other gains into the present. For example, millions of people with disabilities successfully advocated for the passage of the 1990 Americans with Disabilities Act (ADA), which includes voting protections for people with disabilities; and since 1997, twenty-six states and the District of Columbia have won voting rights for people with felony convictions.

Yet, the VRA did not produce suffrage for all. The quest for full inclusion remains unfulfilled. Today, approximately 22 million adults are excluded from the franchise--namely, immigrants who are not U.S. citizens. As of 2022, approximately 46.2 million immigrants live in the United States (i.e., ““foreign-born” persons). Of these individuals, 24.5 million have become U.S. citizens, leaving almost 22 million noncitizens, of which about 11 million are undocumented.

These noncitizens are subject to all the laws, work in every sector of the economy, own businesses, send their children to schools, revitalize neighborhoods in hundreds of cities in the country, contribute billions of dollars in taxes each year, serve in the military, and even die defending this country. Yet they cannot vote on issues crucial to the quality of their daily lives. Excluding such a significant portion of the population from political participation closes off a proven pathway to promote civic education and citizenship. Even worse, it undermines the legitimacy of our laws and policies. The political exclusion of these noncitizen residents poses a significant challenge to the democratic ideal of inclusion, and it poses key questions and has important implications for any reassessment of the VRA and our democratic practices.

In this essay, I argue that the rise and fall--and reemergence--of immigrant voting rights in the United States represents a microcosm of the broader “voting wars” and debates about immigration embroiling the nation. Like the VRA, the case of immigrant voting rights provides valuable insights into the contested nature of democracy in America, and it holds important lessons for election reformers and advocates of equality and justice.

At the federal level, noncitizens are counted for districting purposes and affect the apportionment of seats in the House of Representatives. Because Electoral College votes for president are allocated based on representation in Congress, and government budget allocations are calculated using the total number of residents merely citizens-- noncitizens can significantly impact the political landscape.

At state and local levels, where noncitizens make up a larger proportion of the potential electorate in many places, immigrant political exclusion can have a much bigger impact. Immigrants comprise over 10 percent of the voting-age population in Texas, Florida, and New York, and over 20 percent in California, but only about 49 percent of the overall immigrant population in the country are naturalized citizens with the right to vote. At the local level, immigrants who are noncitizens, whether documented or undocumented, are more highly concentrated. For example, adult noncitizens in Los Angeles make up more than 33 percent of the voting-age population; in New York City, they comprise 22 percent of the voting-age population. In some cities and towns, noncitizens make up one quarter to one half of the population; political exclusion therefore precludes a staggering proportion of the population from selecting representatives who make policies that affect their daily lives. And immigrants are here to stay. In fact, their numbers are likely to increase, according to population projections.

Much like the marginalization faced by other excluded groups, immigrant political exclusion exacerbates their marginalization. Although highly heterogeneous as a group, immigrants rank at the bottom of the social and economic order. While immigrants work more hours than do most U.S. citizens, pay billions of dollars in taxes, and contribute in countless ways economically, socially, and culturally, an alarming number of immigrants and their families score low on indicators of well-being, including income, education, housing, and health. One in four low-income children is the child of an immigrant, and one in four low-wage workers is foreign-born. Undocumented immigrant families are more likely to lack health insurance, have poor health, and be “food-insecure” than native-born families. Latinos, the largest pan-ethnic group of immigrants, experience challenging conditions and have poor outcomes compared with other pan-ethnic groups, and Mexicans, the largest group of Latinos in the United States, face the biggest obstacles. Such deleterious circumstances are the inevitable by-product of immigrant political exclusion, reflecting dynamics embodied in the age-old maxim of politics: if you don't have the vote, you can be easily ignored. This unfortunate reality sheds light on why elected officials might enact public policies that disregard the interests of nonvoters.

Even as the number of elected representatives from diverse immigrant backgrounds has increased, their number lags far behind that of other groups. While gerrymandering, racial bloc voting in at-large elections, and single-member districts contribute to this “representation gap,” social science shows the lack of voting rights for immigrants is also a factor, as their patterns of low voter registration and participation are highly correlated with underrepresentation in government and biased public policy outcomes. The cumulative lack of political power--from fewer votes to fewer representatives--translates into discriminatory government policy and attendant marginalization.

What do these conditions mean for such basic democratic principles as “government rests on the consent of the governed,” “no taxation without representation,” and “one person, one vote”? The level of political exclusion of immigrants approximates the level of disenfranchisement associated with past practices that excluded early groups blocked from voting, including the poor, African Americans, women, and young people. As such, immigrant political exclusion challenges the ideals of a modern democracy, cutting to the heart of American political practice.

In response to resultant political exclusion, and in light of stalled federal immigration reform (save for increased enforcement measures), immigrant advocates have focused reform efforts at the state and local levels where expansion of rights and services are more easily attained. Immigrant activists have launched dozens of initiatives to enact policies that provide a range of rights and services to immigrants, such as access to driver's licenses, health care, legal services, translation assistance, labor rights, living wages, and voting rights.

Contemporary immigrant advocates regard acquisition of noncitizen voting rights as a tool for noncitizens to defend themselves from attacks, as well as a means to exercise collective power that can advance their equitable inclusion. Just as the Civil Rights Movement sought to extend the franchise to African Americans, renewed efforts to extend the franchise to noncitizens seek to advance their equitable representation and human rights more broadly.

[. . .]

The CRA and the VRA laid the basis for other groups to claim rights and challenge discrimination. Subsequent legislation and court decisions affirmed new rights, from workplace protections and gender equality to marriage equality and access to health care. Every marginalized group--whether Asian Americans, Latinos, Native Americans, or LGBTQ Americans--can trace the gains they have achieved to the CRA and the VRA. Yet, after the Supreme Court's 2013 Shelby v. Holder decision, where a 5-4 conservative majority gutted core VRA provisions, dozens of states have passed retrograde legislation rolling back hard-fought gains.

The quest for universal suffrage and full inclusion continues, no more so than for the millions of immigrants who remain disenfranchised. Imagine if, instead of being consigned to the shadows, the more than 22 million non-citizen immigrants in the United States were heading to the polls? Restoring immigrant voting rights would help align our democratic ideals with our election practice. It can bring us closer to achieving the ideals the VRA sought to achieve almost sixty years ago.

As Maryland Congressman and then law professor Jamie Raskin once said, “immigrants' rights are the civil rights” of the day, and “[b]y that logic, noncitizen voting is the suffrage movement” of our time.

Ron Hayduk is a Professor of Political Science at San Francisco State University.