It doesn’t look like much of a change.
At first glance, the statewide referendum question on the Nov. 5 ballot seems to ask only if Wisconsin’s state constitution should permit “only citizens” to vote, instead of allowing “every citizen” to vote, and spells out that it applies to every kind of election.
Because non-citizens can’t vote now, the amendment wouldn’t change anything right away if it passed, experts say.
And yet, opponents warn, the seemingly simple wording approved by the state’s Republican-led Legislature carries with it the baggage of right-wing conspiracy theories about immigration and voter fraud, potentially weakening voting rights in the long term and possibly complicating future efforts to expand youth voting.
Federal law already prohibits non-citizens from voting in federal elections. No state lets them vote in state elections. And less than two dozen U.S. communities, none of them in Wisconsin, allow non-citizens to vote in local elections.
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Supporters of this amendment and similar measures elsewhere point to those 17 communities and say they want to slam the door on any attempt to do the same in Wisconsin. But that door has been closed for more than a century, and nobody has tried very hard to open it in that time.
Allowing non-citizens to vote would “dilute the rights of United States citizens,” the amendment’s original Assembly sponsor, then-GOP Majority Leader Jim Steineke, told the Senate elections committee in 2001. However, courts typically reject that argument if they find that municipal governments rationally decided that non-citizens have a legitimate interest in local affairs, University of Kentucky law professor Joshua Douglas wrote in a 2017 article.
By pushing this amendment, Republicans are “playing into a national feeding frenzy” around false claims about immigration and election fraud, says Beloit Sen. Mark Spreitzer, the committee’s ranking Democrat.
Former President Donald Trump, now the GOP’s presidential nominee, has exaggerated crime committed by undocumented immigrants from the moment he declared his candidacy in 2016. Trump also baselessly claims that he lost the 2020 race because of voter fraud. Now he has merged those positions into a groundless conspiracy theory that Democrats are bringing in undocumented immigrants to illegally vote against him.
“We’re seeing a lot of xenophobic language, fear-mongering, lies about immigrants,” says Christine Neumann-Ortiz, executive director of the Milwaukee-based immigrant advocacy organization Voces de la Frontera. She says Trump is using “false xenophobic rhetoric to gin up his followers to profile people” and question their citizenship to try to stop them from voting.
Spreitzer and Bree Grossi Wilde, executive director of the University of Wisconsin Law School’s State Democracy Research Initiative, also say the ballot language is misleading, by implying that the current constitution either allows non-citizens to vote or doesn’t address the issue.
In reality, voting by non-citizens is extremely rare and typically a mistake rather than part of an organized conspiracy, according to studies by both liberal and conservative organizations and individual states. Annual reports from the Wisconsin Elections Commission show just two cases in 2023 spring elections and none in most previous years.
But if this amendment passes, Spreitzer and Neumann-Ortiz fear Republican legislators would try to push through a law requiring proof of citizenship to vote. Neumann-Ortiz warns such a measure could prevent voting not just by non-citizens but also by citizens who can’t easily find their birth certificates or other papers, an issue that previously arose when Wisconsin tightened voter identification requirements, starting in 2016.
The U.S. Supreme Court blocked a similar Arizona law from applying to federal elections, leading Arizona officials to create separate voter rolls and separate ballots for federal and state elections until the state’s highest court threw out that system last month. In Wisconsin, such legislation could be vetoed by Democratic Gov. Evers or face a challenge in the state Supreme Court, which currently has a liberal majority.
The amendment’s current Senate sponsor, Sen. Julian Bradley (R-New Berlin), did not respond to requests for comment, while the current Assembly sponsor, Majority Leader Tyler August (R-Walworth), was not available for comment.
Debates about immigration and voting were very different earlier in the nation’s history. As many as 40 states and territories allowed voting without citizenship, as an incentive to attract European immigrants, according to research by Ron Hayduk, professor of political science at San Francisco State University. When Wisconsin became a state in 1848, its original constitution granted voting rights to immigrants who declared their intention to become citizens, a provision copied by other states.
All that changed in an early 20th-century backlash against immigration from southern and eastern European nations, Hayduk writes. States started to change their constitutions to prohibit non-citizen voting, including Wisconsin, where a 1908 amendment took effect in 1912. By the 1928 presidential election, non-citizens were no longer allowed to vote anywhere in this country.
As part of a crackdown on illegal immigration, Congress voted in 1996 to impose criminal penalties on any non-citizens who voted in presidential or congressional elections.
But four years earlier, the Washington, D.C., suburb of Takoma Park, Md., had extended voting rights to non-citizens in municipal elections, contending that all city residents had an equal stake in local affairs. Another 10 Maryland suburbs eventually followed suit.
Progressive activist Austin King pushed a similar proposal in his successful 2003 campaign for a seat on the Madison Common Council, according to Hayduk’s 2006 book, “Democracy for All: Restoring Immigrant Voting Rights in the United States.” However, King apparently never introduced an ordinance to legalize non-citizen voting in Wisconsin’s capital city. The state’s Legislative Reference Bureau says it’s not aware of any state legislators ever introducing any bills on the subject, either.
Trump’s 2016 campaign rhetoric demonizing immigrants heated up the issue. On the same day that he won the White House, San Francisco voters authorized non-citizens to vote in school board elections, after defeating similar proposals in 2004 and 2010.
Most communities couldn’t do that, Douglas found. He analyzed every state’s constitutions and laws and concluded that only 14 states – including Wisconsin, Illinois, California and Maryland – and the District of Columbia had “no clear impediments” at that time to local governments allowing non-citizen voting on their own.
Other experts disagree that Wisconsin communities have that power. Analyses by the LRB and the State Democracy Research Initiative conclude that non-citizen voting is prohibited by state law, even though non-lawyers might think the statutory language mirrors the constitutional provision that is not considered an explicit ban.
And while Takoma Park relied on the home rule authority granted by Maryland’s state constitution, Wisconsin’s Supreme Court has weakened home rule guarantees, allowing state law to take precedence, the LRB says.
In the wake of San Francisco’s vote, right-wing activists launched a nationwide campaign to outlaw non-citizen voting in state constitutions. At the time, only Arizona’s constitution explicitly limited voting to citizens, while Wisconsin and every other state allowed “every” or “any” citizen to vote.
North Dakota voters approved a non-citizen voting ban in 2018, followed by Alabama, Florida and Colorado in 2020 and by Ohio and Louisiana in 2022. This year, Wisconsin is one of eight states with similar referendums, along with Iowa, Missouri, Idaho, Kentucky, North Carolina, Oklahoma and South Carolina. Of those 14 states, only Wisconsin, Ohio, Colorado and Oklahoma were on Douglas’s list of states where communities could let non-citizens vote.
Meanwhile, a few more cities authorized non-citizen voting in local elections, including Washington, D.C., and Oakland, Calif., (the latter for school board contests only) in 2022. In Vermont, the Democratic-controlled state Legislature granted requests from three communities to permit non-citizen voting, overriding vetoes by the state’s Republican governor. A similar New York City measure is awaiting a decision by that state’s highest court, after lower courts ruled non-citizen voting unconstitutional and faulted the city council for skipping a required referendum.
Wilde’s analysis also questions whether the wording of the amendment might hamper future efforts to expand youth voting. Newark, N.J., allows 16-year-olds to vote in school board elections, while similar measures have been approved but not implemented in Berkeley and Oakland, Calif. Takoma Park, three other Maryland communities and Brattleboro, Vt., also let 16-year-olds vote in local elections.
Perhaps more significantly, Wilde notes, 20 states – including Illinois and Iowa – and the District of Columbia allow 17-year-olds to vote in at least some primary elections if they will be 18 by the time of the general election, and Democrats in another four states allow 17-year-olds in vote in their presidential primaries and caucuses under the same conditions. Spreitzer was among the Democratic cosponsors of a recent bill to allow 17-year-old voting in Wisconsin primaries, but majority Republicans let it die in committee.
However, it’s still possible that youth voting could be expanded, under a separate constitutional provision that allows the Legislature to extend “the right of suffrage to additional classes” if voters agree in a binding referendum, Wilde says. That provision was first used to grant voting rights to Black people in the 19th century.
Douglas supports efforts by local governments to expand voting rights to noncitizens, 16-year-olds and others, writing that they should “enfranchise anyone who has a sufficient stake in local affairs and has the proper incentives and ability to make informed choices about who should lead them.” He says this could be an experiment in broader reforms, noting that women first won the right to vote in school board elections in some states, including Wisconsin.
This is the fifth GOP-backed constitutional amendment on the Wisconsin ballot this year. In August, voters defeated two other amendments to restrict the governor’s power over federal funds.
But those amendments were the subject of a well-funded “vote no” campaign. That’s not the case this time, with presidential, congressional and legislative candidates pulling in all available funding. Without such campaigns, Wisconsin voters have approved most constitutional amendments in recent years.
Neumann-Ortiz hopes that doesn’t happen, saying, “Our constitution should be about expanding rights, not limiting rights, and not being cynically used to disenfranchise voters.”
