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Only Citizens Should Hold Voting Rights

San Francisco initiative is a misguided step.

August 01, 2004|Peter H. Schuck

In November, San Francisco voters will be asked to decide whether to allow noncitizens to vote in school board elections, a complicated, controversial question that merits substantial discussion. But in the end, though it is important to encourage immigrants to involve themselves in their children's schools, giving them voting rights is more doubtful.

Certainly, San Francisco's proposal targets a genuine problem. Many immigrant children attend schools that are shockingly inadequate, and their parents face many obstacles in improving them. Lack of English fluency is a major disability. Many work several jobs, have long commutes and are left with little time to supervise homework, much less participate in school governance.

The stakes are high not only for the immigrants themselves but for the rest of America. Their U.S.-born children, after all, are automatically citizens even if the parents are not, and these children will constitute a steadily growing share of the electorate that will shape our future.

Fairness and equality concerns might also justify giving the vote to noncitizens. After all, they are taxpayers; even the undocumented pay sales taxes and often payroll taxes. Since noncitizens, like everyone else, are vitally affected by official decisions, the argument goes, they should also be able to choose those who govern them.

History too might reinforce noncitizens' claim to the franchise. Until the 1920s, some states allowed noncitizens to vote in state and local elections. (None allows it today, though states still have the power to do so; the San Francisco ballot proposal would challenge state law.) Even now, some municipalities permit noncitizens to vote for school board members; a few extend the vote to all local elections.

To these arguments favoring noncitizen voting, however, there are serious responses. On the evidence, voting is a low priority for most immigrants, just as it is for the 18-year-olds enfranchised by the 26th Amendment. Only a small fraction of the immigrants eligible for citizenship seek it quickly; they wait more than eight years on average, and Mexicans, the largest group by far, wait much longer. Relatively few immigrants are likely to vote in a school board election even if they can; indeed, only a small fraction of eligible voters now vote in these elections.

This is not, in itself, a conclusive reason to deny them the vote. It would be wrong to withhold such a fundamental right solely on the ground that people are unlikely to exercise it. Why not give noncitizens the same choice that citizens possess?

This is precisely the point. Recently arrived immigrants, and others who are eligible to naturalize but have chosen not to do so, are not yet citizens -- and may never be. In a self-governing democracy, it is not unfair to recognize and maintain this distinction so long as legal immigrants are offered the opportunity to become citizens on an equal basis without undue obstacles or unreasonable delay. Current naturalization law meets these conditions.

Today, the vote is one of the few significant remaining differences between the status of citizen and noncitizen. (Others are that citizens enjoy higher priority in gaining admission for immigrant relatives; that not all immigrants receive the same welfare benefits that citizens get; and that noncitizens can be deported, though this is very rare unless the noncitizen is a criminal or undocumented.)

In my view, the right to vote should be predicated on citizenship, and the right to citizenship should continue to require a significant period of legal residence. Newcomers need time to acquire the very minimal political knowledge conducive to rational voting.

But some legal changes might make the distinction easier to justify. Our five-year waiting period for citizenship, which dates back to the 19th century, may not be optimal. (The period is three years in Canada and also here for those with a U.S. citizen spouse; Australia's period is even shorter.) Our naturalization tests, now being revised, may not measure political knowledge effectively.

We should also consider extending the vote to immigrants who have met the naturalization requirements but are delayed by long bureaucratic backlogs; their vote should not have to wait until the government gets around to scheduling their ceremonies.

That said, however, the line between citizen and noncitizen defined by the right to vote is worth preserving. Before newcomers receive full political equality, they should have to make the basic commitment to American democracy that our minimal, nondiscriminatory preconditions for naturalization now require. My guess is that the vast majority of immigrants would agree.

Peter H. Schuck teaches law at Yale Law School and is the author, most recently, of "Diversity in America: Keeping Government at a Safe Distance" (Harvard University Press, 2003).

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