In the 19th Century, Non-Citizens in the US Could Vote in 22 States and Territories
In a Mises Daily column last summer, I suggested that the proper strategy for addressing the immigration issue is to begin decentralizing decision-making and political jurisdictions.
I noted that the immigration issue had been taken over by the Federal government in the courts, but that it is really a state and local matter. As Andrew P. Napolitano has noted, "[T]he Constitution itself — from which all federal powers derive — does not delegate to the federal government power over immigration, only over naturalization." Nevertheless, the Federal courts over the past century have attempted to make immigration a strictly federal issue.
Historically, however, this has not been the case at all. Through much of the 19th century, and into the early 20th century, matters of voting rights — and by extension, citizenship — were the domain of the states and of state constitutions.
A Low Bar For Citizenship and Voting in State Constitutions
When I wrote my column on the need to decentralize immigration policy, some readers may have assumed that this was just an anti-immigrant bluff, and that I was laboring under the assumption that, if allowed, states would go much farther than the federal government in restricting immigration. While it is no doubt true that some states would do this, it is also likely that many states would not.
In fact, research by Huyen Pham and Pham Hoang Van demonstrates quite clearly that there are wide variations in how different states approach the immigration issue. This is true across geographies, but it's also true across time periods.
Throughout much of the 19th century, numerous state governments were extremely open to immigration, and immigrants. The drive to ease entry for immigrants was so widespread, that it led to the legal phenomenon known as "declarant alien" voting.
Specifically, states that welcomed declarant alien voting explicitly noted in their constitutions that non-US citizens were eligible to vote in elections if they declared their intent to become citizens within a certain time frame before the election. That's all that was required to become an eligible voter. In the case of Colorado, for example, the state's original 1876 constitution reads (Article VII section 1):
[The voter] shall be a citizen of the United States, or not being a citizen of the United States, he shall have declared his intention, according to law, to become such citizen, not less than four months before he offers to vote.
There was nothing innovative about this position, however. This standard for voting rights was simply continuing what was the status quo in Colorado since declarant alien voting rights had already been established years before within the Kansas Terroritory, out of which Colorado was eventually formed.
[RELATED: "Immigrants Aren't The Only Ones Who Shouldn't Be Voting"]
Declarant alien voting in state constitutions goes back at least to the Wisconsin constitution of 1848. By the mid 19th century, it had spread to numerous Western territories via Congressional approval. And, as Gerald Neuman notes:
Congress enfranchised declarant aliens in the [Oregon, Minnesota,] Washington, Kansas, Nebraska, Nevada, Dakota, Wyoming, and Oklahoma Territories. In all nine of these territories, Congress imposed the additional requirement of an oath to support the United States Constitution.
Some, though not all, of the territories that permitted alien suffrage retained it when they achieved statehood. Older states joined the trend. When Indiana and Michigan adopted new constitution in the early 1850s, they enfranchised declarant aliens. Reportedly, the change reflected competition for immigrants among the Midwestern states. Numerous former Confederate states adopted the same tactic, at least temporarily, after the civil war.
Texas was among those states that adopted declarant alien voting during Reconstruction, but it was not eliminated at the end of Reconstruction. Alien voting was retained in weakened form until 1921. Ron Hayduk writes:
Like several other southern states, Texas formally adopted declarant alien voting during the Reconstruction era. The Texas Constitution of 1868 provided that: “Every free male person who shall have attained the age of twenty-one years, and who shall be (or who shall have declared his intention to become) a citizen of the United States, or who is at the time of the acceptance of this constitution by Congress a citizen of Texas, and shall have resided in this State one year next preceding an election, and the last six months within the district or county in which he offers to vote, and is duly registered (Indians not taxed excepted,) shall be deemed a qualified elector.”
The Constitution of 1876 retained declarant alien voting, providing suffrage to “every male person of foreign birth [not subject to a list of disqualifications] who, at any time before an election, shall have declared his intentions to become a citizen of the United States, in accordance with the Federal naturalization laws, … shall also be deemed a qualified elector.” In 1896 the declarant alien voting provision was amended to require a declaration of intent to naturalize not less than six months before the election. As late as 1916, a Texas appellate court reprimanded officials in Bee county for wrongly denying the vote to declarant aliens during an election over a county-wide prohibition on liquor; the election officials had announced that “no man not born in the United States would be allowed to vote unless he had his final naturalization papers, and that it would be necessary for him to produce them in order to be entitled to vote.”
Declarant alien voting eventually died out in the 1920s as new immigrants from Eastern and Southern Europe were deemed insufficiently "white" and the anti-immigration policies became more popular for a variety of reasons. Anti-German hysteria during World War I, for example, was one cause.
In many states of the far west, however (such as Colorado) voting requirement had been very weak, even when there was a risk of non-whites voting. The 1876 Colorado constitution even stipulates that all new laws be published in English, Spanish, and German, so as to be intelligible to both Mexican-American and German-American immigrants.
Citizenship Became (Indirectly) a State Matter
In the 19th century, in a time of no income tax and few federal laws, citizenship was largely synonymous with voting rights. In the declarant alien tradition, aliens could effectively become state citizens with minimal effort outside declaring an intent to become citizens, paying taxes, and submitting to local laws. The federal government implicitly recognized this fact when it concluded during the Civil War that declarant aliens were close enough to citizens to be drafted into the army.
James Raskin, in "Legal Aliens, Local Citizens" finds that "white male aliens ... exercised the right to vote in at least twenty-two states and territories during the 19th century."
Given the central role of state law in granting access to federal elections (see below), states thus had the power to indirectly determine who could act as US citizens in terms of political participation:
As a chapter in the history of American federalism, the period of alien suffrage reflected a conception of states as sovereign political entities. The states with alien suffrage allowed non-US citizens to participate in voting at all levels of American government, thereby turning them, explicitly or implicitly, into "citizens" of the state itself. Participant states were thus exercising independence from the national government for the purposes of communal political self-definition.
The emergence of voting policies peculiar to certain states grew naturally out of the fact that during the 19th century, there was a distinction between citizenship in a particular state, and citizenship in the United States overall. In her book on the Illinois state Constitution written in 1818, Ann Lousin discussed the requirements for voting in Illinois. (Virtually all adult white men could vote.) But she then adds: “as was typical in early state constitutions, there was no requirement of United States citizenship.”
In fact, by the late 19th century, there arose a legal phenomenon of multi-level citizenship that did not assume that all state citizens were also US citizens.
In Neuman's legal analysis, he finds that the state courts in several cases concluded that "alien voters were citizens of the state, though not of the United States.”
Specifically, according to Neuman, the Wisconsin Supreme Court "described the independence of state citizenship from US citizenship as an acceptable consequence of the dual-sovereign system of federalism...A few other state courts similarly construed declarant alien voters as citizens of the state." Essentially, the Wisconsin Supreme Court declared that “declarant aliens were citizens of Wisconsin” regardless of what the federal courts might say.
As voting was a central indicator of citizenship at the time, it should be noted that this followed logically from the fact that the states and not the central government were recognized as the proper instrument for regulating elections and voting rights. After all, in the text of the US constitution (ignoring later case law) it is clear that the states decide who is eligible to vote, and not the federal government. In fact, the federal constitution rarely mentions voting at all. Joshua Douglas writes "unlike virtually every state constitution, the US constitution does not actually confer the right to vote on anyone." There are only negative mandates as to who may not be disenfranchised. Even the US Supreme court admits this, and in 2013, the court's majority wrote: "Congress ... regulate[s] how federal elections are held, but not who may vote in them. The latter is the province of the States."
In state constitutions, voting and voting eligibility is a central topic, and this is a relic of 19th century decentralist attitudes in which voting rights and thus citizenship (practically speaking) were well within the territory of the state legislatures.
Douglas goes on to note that frequent claims by federal courts that voting rights are "fundamental" to federal law cite no actual text in the US constitution, but appear to be based on nebulous philosophical claims. Only the state constitutions treat voting rights as fundamental. Historically, it has been states and state constitutions that decide who can and who cannot exercise the prerogatives of a full citizen.
The Illinois Supreme court concluded that its constitution extended “the right of suffrage to those who, having by habitation and residence identified their interests and feelings with the citizen, are upon the just principles of reciprocity between the governed and governing, entitled to a voice in the choice of the officers of the government, although they may be neither native nor adopted citizens.”