Can a state legally let non-citizens vote?

[America Needs a 13-6 Progressive SCOTUS]

Topic Title

[SteveRogers]

Yes.

[True Federalist (진정한 연방 주의자)]

Yes. While not common, there have been jurisdictions that only required residency rather than citizenship to vote, especially in local elections. Arkansas was the the last State that allowed non-citizens to vote in State (or Federal) elections, and that was back in 1926.

Right now, non-citizen residents only have the right to vote in local elections in a handful of Maryland municipalities, and for the San Francisco School Board, tho without further action the 2022 School Board elections will be the last in which non-citizens can vote. (Maryland allows local governments to decide for themselves whether non-citizens can vote. In a few other States, local governments have authorized it, but need State legislature approval which hasn't been given.)

[StateBoiler]

For local stuff, yes.

HOWEVER, states would be required to keep two separate election rolls, which is a reason why the 26th Amendment (lowering voting age from 21 to 18) exists. From Wikipedia:

Oregon v. Mitchell

During debate of the 1970 extension of the Voting Rights Act, Senator Ted Kennedy argued that the Equal Protection Clause of the Fourteenth Amendment allowed Congress to pass national legislation lowering the voting age.[17] In Katzenbach v. Morgan (1966), the Supreme Court had ruled that if Congress acts to enforce the 14th Amendment by passing a law declaring that a type of state law discriminates against a certain class of persons, the Supreme Court will let the law stand if the justices can "perceive a basis" for Congress's actions.[18]

President Nixon disagreed with Kennedy in a letter to the Speaker of the House and the House minority and majority leaders, asserting that the issue is not whether the voting age should be lowered, but how. In his own interpretation of Katzenbach, Nixon argued that to include age as something discriminatory would be too big of a stretch and voiced concerns that the damage of a Supreme Court decision to overturn the Voting Rights Act could be disastrous.[19]

In Oregon v. Mitchell (1970), the Supreme Court considered whether the voting-age provisions Congress added to the Voting Rights Act in 1970 were constitutional. The Court struck down the provisions that established 18 as the voting age in state and local elections. However, the Court upheld the provision establishing the voting age as 18 in federal elections. The Court was deeply divided in this case, and a majority of justices did not agree on a rationale for the holding.[20][21]

The decision resulted in states being able to maintain 21 as the voting age in state and local elections, but being required to establish separate voter rolls so that voters between 18 and 21 years old could vote in federal elections.[22]

...

James J. Kilpatrick, a political columnist, asserted that the states were "extorted" into ratifying the Twenty-sixth Amendment.[27] In his article, he claims that by passing the 1970 extension to the Voting Rights Act, Congress effectively forced the States to ratify the amendment lest they be forced to financially and bureaucratically cope with maintaining two voting registers.

[True Federalist (진정한 연방 주의자)]

For local stuff, yes.

HOWEVER, states would be required to keep two separate election rolls

Actually, they wouldn't. There is no Constitutional requirement that only U.S. citizens be allowed to vote for Federal office holders, only that U.S. citizens over the age of 18 be allowed to vote in any election.  Indeed, given the way Article I and the XVIIth Amendment are worded, if a State chose to allow non-citizen residents to vote for that State's legislature, they would be required to allow them to vote for Congress as well.

Similarly, if a State gave 16-year-olds the right to vote in State legislative elections, they'd automatically gain the right to vote for Congress in that State.

[brucejoel99]

For local stuff, yes.

HOWEVER, states would be required to keep two separate election rolls

Actually, they wouldn't. There is no Constitutional requirement that only U.S. citizens be allowed to vote for Federal office holders, only that U.S. citizens over the age of 18 be allowed to vote in any election.  Indeed, given the way Article I and the XVIIth Amendment are worded, if a State chose to allow non-citizen residents to vote for that State's legislature, they would be required to allow them to vote for Congress as well.

Similarly, if a State gave 16-year-olds the right to vote in State legislative elections, they'd automatically gain the right to vote for Congress in that State.

Doesn't federal law state that it's unlawful for non-citizens to vote in federal elections, though? If a state chose to allow non-citizens living therein to vote in elections for their legislature, would their doing so render the applicability of the federal law unconstitutional in their state, even though the Constitution grants the federal government the power to regulate federal elections.

[True Federalist (진정한 연방 주의자)]

Doesn't federal law state that it's unlawful for non-citizens to vote in federal elections, though? If a state chose to allow non-citizens living therein to vote in elections for their legislature, would their doing so render the applicability of the federal law unconstitutional in their state, even though the Constitution grants the federal government the power to regulate federal elections.

You're thinking of 18 USC 611, which was added by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.  However, it was a moot provision at the time of passage as no State in 1996 allowed non-citizens to vote in Federal elections, so it has never been tested in court, despite the obvious conflict with the Constitutional provisions as to who gets to vote in Federal elections if a State did allow non-citizens to vote in State legislative elections. Until a State gives non-citizens the ability to vote in State legislative elections, it won't be tested, but Oregon v. Mitchell clearly held that power of the Federal government to regulate Federal elections doesn't extend to determining who can vote in non-Federal elections, absent a Constitutional provision to the contrary, which is why we got Amendment XXVI.

There is no Constitutional provision restricting the vote to citizens and there are Constitutional provisions requiring that voters for the largest State legislative house be the voters for U.S. Representatives, voters for the smallest State legislative house be the voters for U.S. Senators, and that States may choose any method they like to select Electors. Without overturning Oregon v. Mitchell, 18 USC 611 is clearly unconstitutional if a State chooses to allow non-citizen residents to vote in State legislative elections. As a true federalist, I think Oregon v. Mitchell was an excellent decision. Indeed, the whole series of events that led to the passage of the Twenty-sixth Amendment is a textbook example of how federalism should work, albeit aggravating to those seeking to give the vote to 18-year-olds.

Note that even without 18 USC 611, a State would not be able to give non-citizens the right to vote for Congress without giving them the right to vote for their State legislature as well.

[jimrtex]

For local stuff, yes.

HOWEVER, states would be required to keep two separate election rolls, which is a reason why the 26th Amendment (lowering voting age from 21 to 18) exists. From Wikipedia:

Oregon v. Mitchell

During debate of the 1970 extension of the Voting Rights Act, Senator Ted Kennedy argued that the Equal Protection Clause of the Fourteenth Amendment allowed Congress to pass national legislation lowering the voting age.[17] In Katzenbach v. Morgan (1966), the Supreme Court had ruled that if Congress acts to enforce the 14th Amendment by passing a law declaring that a type of state law discriminates against a certain class of persons, the Supreme Court will let the law stand if the justices can "perceive a basis" for Congress's actions.[18]

President Nixon disagreed with Kennedy in a letter to the Speaker of the House and the House minority and majority leaders, asserting that the issue is not whether the voting age should be lowered, but how. In his own interpretation of Katzenbach, Nixon argued that to include age as something discriminatory would be too big of a stretch and voiced concerns that the damage of a Supreme Court decision to overturn the Voting Rights Act could be disastrous.[19]

In Oregon v. Mitchell (1970), the Supreme Court considered whether the voting-age provisions Congress added to the Voting Rights Act in 1970 were constitutional. The Court struck down the provisions that established 18 as the voting age in state and local elections. However, the Court upheld the provision establishing the voting age as 18 in federal elections. The Court was deeply divided in this case, and a majority of justices did not agree on a rationale for the holding.[20][21]

The decision resulted in states being able to maintain 21 as the voting age in state and local elections, but being required to establish separate voter rolls so that voters between 18 and 21 years old could vote in federal elections.[22]

...

James J. Kilpatrick, a political columnist, asserted that the states were "extorted" into ratifying the Twenty-sixth Amendment.[27] In his article, he claims that by passing the 1970 extension to the Voting Rights Act, Congress effectively forced the States to ratify the amendment lest they be forced to financially and bureaucratically cope with maintaining two voting registers.

Oregon v Mitchell was a mess at least as far as the 18 Year Old Vote.

Only Justice Black agreed that Congress could set the voting age for federal elections (even though this is a direct contradiction to the Constitution that says the franchise for Congress is based on that for the legislature). Though Congress may define the manner of congressional elections, who may vote is not the manner of how that voting occurs,

Four justices believed that equal protection applied, and would have (or might have) ruled based on a lawsuit by an individual plaintiff that requiring a person to be 21 YO was arbitrary and capricious.

So it ended up with 5 votes for permitting 18 YO to vote in federal elections. The rationale does not matter. The score was 5:4.

This led to ratification of the 26th Amendment. I'm not sure it would qualify as extortion. I don't think the legislative intent was to have Justice Black make a boneheaded political decision.

In Tashjian, this issue came up. The Connecticut Republican party wanted to invite independents to vote in Congressional primaries (but not legislative primaries). Justice Stevens argued in his dissent that the SCOTUS should not have even gotten to the substantive political association issue since the franchise would be broader for federal elections than legislative elections.

Justice Marshall who wrote the majority opinion disagreed. Perhaps because he wanted to rule on the substantive issue, or perhaps because he was senile or a political hack or wanted to preserve his successful argument as a lawyer in ruling that voting rights applied to primaries.

If you read Justice Steven's dissent, you will say, "that makes sense". If you read Justice Marshall's Part IV, you will say, "that makes my head hurt".

The Tashjian decision was applied to Nebraska. The Nebraska legislature is elected in non-partisan elections in which every voter may vote in a primary, from which the Top 2 advance.

Nebraska holds conventional partisan primaries for Congress. A legislator asked the Attorney General whether Nebraska could have a broader franchise for legislative elections than it does for congressional elections. The AG issued an opinion that they could not - though he did qualify it by saying that he couldn't be sure how a court such as the SCOTUS might rule.

Nebraska permitted independents to vote in congressional primaries based on the AG's opinion, which was subsequently codified.

When some politicians suggest making the unicameral partisan, it may be out of a desire to close congressional primaries. In a Republican-dominated state you never know whether those independents are sleeper cells.