Only Citizens Vote, the Case for Proof of Citizenship When Registering

Here is a rule almost nobody in America opposes: only citizens may vote in federal elections. Pollsters would struggle to find a dissenter, and politicians of both parties will recite it on demand. So why does the argument over checking the rule get treated like an act of aggression?

I'd like to take the temperature down and the logic up. This is a post about verification, not accusation. It does not claim that large numbers of noncitizens vote, and it does not need to. It claims that a rule everyone accepts deserves a check that matches its importance, and that the check we mostly use today is a box on a form. Let me define the terms, state the law, give the other side its best case, and then answer it.

The terms, and the law as it stands

Start with definitions, because this fight is usually conducted without them.

Citizen: a person who is a citizen of the United States by birth or by naturalization. Noncitizen: everyone else, including lawful permanent residents (green card holders), visa holders and people in the country unlawfully. Registration: the act of being placed on the list of eligible voters, which in nearly every state must happen before Election Day. Documentary proof of citizenship: a record, such as a birth certificate, passport or naturalization certificate, that a registrar can examine. Attestation: a sworn statement, here a signed claim of citizenship made under penalty of perjury.

Now the law. In 1996, as part of the Illegal Immigration Reform and Immigrant Responsibility Act, Congress enacted 18 U.S.C. 611. It makes it a federal crime for a person who is not a citizen to vote in an election for federal office. The same legislation added a provision, 18 U.S.C. 1015(f), making it a crime to falsely claim citizenship in order to register or vote. Before 1996 the federal code was oddly quiet on the point, partly because it had been assumed, for most of American history, that states would handle it. The conclusion is plain: federal law already says noncitizens may not vote in federal elections, and it attaches criminal penalties, including potential deportation consequences for those who are not citizens, to breaking the rule.

Who decides who votes? The Constitution answers in Article I, Section 2, which says that electors for the House shall have "the Qualifications requisite for Electors of the most numerous Branch of the State Legislature." States set voter qualifications, and states historically set them differently. In the nineteenth century a number of states, especially newer ones eager for settlers, allowed some noncitizens who had declared an intention to naturalize to vote. That practice faded as the century turned, and in the 1920s the last of those laws were repealed. By then the settled understanding was that the franchise belongs to citizens. Many states in recent years have amended their own constitutions to say it in so many words.

So the principle is not in dispute. What is in dispute is the mechanism.

How registration works now

The federal baseline is the National Voter Registration Act of 1993, the "motor voter" law, which I discuss in Clean Voter Rolls Are a Legal Duty, What the 1993 Motor Voter Law Requires. It created a national mail-in registration form, the federal form. That form asks the applicant to check a box answering whether they are a citizen, and it requires the applicant to sign an attestation, under penalty of perjury, that they meet the eligibility requirements. The form lists the penalty for a false statement. That is the verification step at the point of registration in most of the country: a box, a signature, and a warning.

States layer other checks on top. Driver's license agencies collect proof of lawful presence when issuing licenses, and motor voter means that people who register at those counters are already in a database that holds those records. Some states cross-check registrations against such databases. Many do not do it systematically at the moment of registration. And a person who registers by mail, through a voter-registration drive or on the federal form has, in the ordinary course, been verified by the box and the signature.

Notice what that system rests on. It rests on deterrence by threat. We trust the box because lying on it is a crime. That is not a ridiculous design. Plenty of the law runs on attestation: you swear to a tax return, you swear to a loan application. But we also audit tax returns, and lenders ask for pay stubs. Attestation alone is the lightest tool in the box, and we typically reserve it for matters where the stakes are low or where a second check exists elsewhere in the process.

The stakes here are not low. A vote is the unit of self-government. One sentence from Article I tells you the framers' view of how seriously to take the composition of the electorate: the House is to be chosen by "the People of the several States," and the Constitution leaves it to the people, through their states, to define themselves. A rule is only as good as the confidence that it is enforced.

What the Supreme Court actually held in 2013

The proof-of-citizenship debate in the courts runs through Arizona v. Inter Tribal Council of Arizona (2013). Arizona voters had adopted a measure requiring documentary proof of citizenship with a registration application. Arizona then rejected federal-form applications that arrived without that proof. The question was whether the National Voter Registration Act, which requires states to "accept and use" the federal form, preempted the state requirement.

Justice Scalia wrote for a 7-2 Court that it did. His reasoning was about statutory text and about the Elections Clause of Article I, Section 4, which gives states the power to prescribe the "Times, Places and Manner" of congressional elections and gives Congress the power to "make or alter such Regulations." Where Congress has spoken, the state rule yields. Arizona could not demand more than the federal form asked for from people who used the federal form.

Two things about that decision deserve more attention than they get. First, it was a holding about who has the authority, not about whether the requirement is wise or constitutional. The Court did not say states may never ask for proof. Scalia's opinion noted that a state could ask the federal Election Assistance Commission to include a state-specific instruction on the federal form, and if the Commission refused, the state could go to court and argue that the Constitution lets it insist on proof as a qualification for voting. The opinion explicitly left that door open, pointing out that the power to establish voting requirements is distinct from the power to regulate how elections are conducted.

Second, the decision means the real lever is Congress. The same body that wrote the 1993 form can change what the form requires. If you think proof of citizenship is a sensible check, the target is a bill, not a lawsuit. I will come back to that in the last section.

The municipal question

The "only citizens vote" principle has been quietly eroded in a different place: city and school-board elections. Takoma Park, Maryland, began allowing noncitizen residents to vote in local elections in the early 1990s, and a few other Maryland towns followed. Vermont communities and some others have adopted charter changes of their own, and the District of Columbia enacted a law letting noncitizen residents vote in local elections. Several of these laws have faced legal challenges under state constitutions, and some have been struck down on state-law grounds.

I am not here to call those communities villains. Their argument is that people who pay local taxes and send children to local schools should have a say in how those schools are run. That is a real argument, and it has a distinguished ancestor in the colonists' complaint about taxation without representation. But I would answer it in two ways. First, the Constitution and the long American practice treat the vote as the prerogative of the citizen, and citizenship is the thing naturalization offers. A person who wants the franchise has a path to it. Second, mixed rolls create an operational problem. A registrar who maintains two classes of voters, some eligible for local races only, must keep them apart on the same system, on the same Election Day, in a country where federal and local races often appear on the same ballot. Every added category is another chance for a clerical error to put a name on the wrong list. Proof of citizenship at registration is, among other things, a way of keeping the categories clean.

The strongest objection

Now the steelman, because I owe it to the other side and because it is a serious point.

The objection runs like this. Documentary proof requirements, however well-meant, burden eligible citizens who lack easy access to documents. Millions of Americans do not carry a passport. A birth certificate may be in another state, or lost in a fire, or issued under a name that has since changed, as it often has for married women. Elderly voters born at home decades ago may have no certificate at all. Rural residents may live far from the office that issues the records. Fees, travel and bureaucracy are costs, and costs fall hardest on the poor. Meanwhile, proven noncitizen voting is extremely rare, so a blanket requirement trades a small, hypothetical harm for a larger, real one: eligible citizens turned away. A rule that keeps out one ineligible voter and one hundred eligible ones fails its own test.

That is the best version, and I take its moral core seriously. A check that disenfranchises the people it is meant to protect would be a bad check. If I thought the objection could not be answered, I would not hold my position.

The answer, in five points

One: the burden is a design choice, not a law of nature. A proof-of-citizenship rule can be written broadly or narrowly. It can accept many kinds of evidence: a passport, a birth certificate, a naturalization certificate, or a state record that already shows citizenship, such as a driver's license issued after a citizenship check. A well-drafted rule has a long list of acceptable documents and a fallback for people who have none.

Two: the state already holds most of the records. The strongest design asks the citizen to supply nothing at all when the government can verify the fact from its own files. Driver's license agencies, vital-records offices and federal naturalization records already contain much of what a registrar needs. The right reform spends the state's effort, not the voter's. The more the rule is a database match and the less it is a scavenger hunt, the more the objection loses its force.

Three: free replacement and a safety valve are the price of a fair rule. If the state is going to demand proof, the state should offer a free route to obtain it. Check your own state's vital-records office to see what it charges and whether it waives fees for voting purposes, because the rules differ, and hold to the principle: no one should pay a poll tax in the form of a records fee. The Twenty-Fourth Amendment forbade poll taxes in federal elections in 1964, and the sound reading of that history is that the cost of proving eligibility should not fall on the voter. Pair that with an affidavit route for the genuinely paperless, backed by a check against state records, and the burden for the elderly and the displaced shrinks to something manageable.

Four: "rare" is not the same as "verified." The objection leans on the claim that noncitizen voting almost never happens. Whether or not that is true, the assertion is difficult to test because the main check is a signed box. When the check is a box, a low count of detected cases tells you little, since the system is not built to detect much. I am not claiming widespread violations, and I will not. I am saying that confidence in a result should not depend on an assumption nobody can audit. The rule deserves a check that produces evidence.

Five: the cost of eligible-citizen error can be measured, and it should be. If a state adopts documentary proof, it should publish how many applications were pending for lack of documents, how many were cured, and how long it took. That is how you find out whether the objection is describing your state or not. A conservative should be the first to demand that a government program, including an election-security program, be judged by its results.

I'll add the cheap joke that I owe the reader. We ask for ID to board a flight, to open a bank account and to buy cold medicine, and we call all of that ordinary. The one transaction in which a mistake changes who governs us is, in many places, handled by a signature on a form that arrives in an envelope. If a pharmacist asked for less proof than the registrar, we'd find that funny. We'd also find it an odd order of priorities.

Measuring it against the Founding

The Founders spent a good deal of ink on the question of who belongs to the political community. Naturalization was one of the few powers the Constitution assigned expressly to Congress: the power "to establish an uniform Rule of Naturalization." The first Congress used it in 1790, and the early Naturalization Acts required residency and an oath, a formal ceremony in which a person becomes a citizen. One Uniform Rule, How the First Congresses Wrote America's Naturalization Laws tells that story. The point is that the American tradition does not treat citizenship as a casual status. It has a front door, and the franchise lives behind it.

That tradition is generous, and I say so with pride. We admit more people to citizenship each year than most nations do, and the person who walks out of a naturalization ceremony holding a certificate holds the same vote as someone whose family has been here since the Mayflower. For that reason, a proof requirement is not hostile to immigrants. It honors them. A naturalized citizen's certificate is the document that says the process was real. A system that lets the box stand in for the certificate treats the whole front door as optional.

What to do about it

Three practical conclusions follow.

1. Make it a federal question. Because of the 2013 decision, the cleanest route is for Congress to amend the federal form's requirements, or for the Election Assistance Commission to consider state requests. State legislators who want a documentary rule should draft it with the 2013 opinion open on the desk.
2. Match the burden to the record. Verify against existing state and federal records first, and ask the voter only when the records are silent.
3. Fund the free path. Waive fees, publish the list of acceptable documents, and measure the results.

For the wider context on how the rules and the myths fit together, see Eight Myths About Election Rules That Both Parties Repeat Every Cycle, and for the constitutional structure that divides these powers between the states and Congress, The Elections Clause Lets States Run Elections and Lets Congress Step In. If you want to test your own knowledge of what the citizenship oath and test involve, Twelve Questions From the Citizenship Civics Test and the Answers Behind Them is a good place to start. And since any reform of registration rules must land well before voting begins, the logic of Purcell v. Gonzalez and Why Judges Should Not Rewrite Election Rules Late applies to the calendar.

The case in brief

1. Federal law, 18 U.S.C. 611 (1996), already makes it a crime for a noncitizen to vote in a federal election; the principle is settled, and the argument is about how to verify it.
2. Most registration relies on a checked box signed under penalty of perjury, the lightest verification tool we have, applied to the most consequential act in a republic.
3. Arizona v. Inter Tribal Council of Arizona (2013) held that the federal form preempts a state's added proof demand, but left open a route for states through the Election Assistance Commission and the courts, and left the larger power with Congress.
4. The strongest objection, that proof rules burden eligible citizens who lack documents, is answered by drafting: many acceptable records, database matching first, free replacement, an affidavit fallback, and published results.
5. Citizenship has a front door in American law, and a rule that verifies it honors every immigrant who walked through it.

What you can do: read your own state's registration form and its list of acceptable documents, then write your state legislator and your member of Congress to ask whether the rule verifies citizenship from existing records, and who pays if you need a replacement document.