The Supreme Court may soon see another clash between the original public meaning of the Constitution and President Donald Trump’s wishes. The birthright citizenship case, Trump v. Barbara, is one previous example of this. The next instance, which looms on the horizon, involves the issue of noncitizen voting.
The Trump administration has been aggressively undertaking efforts to get states to take steps aimed at preventing noncitizens from voting. The latest such effort is a lawsuit that Trump’s DOJ has filed against California seeking to force the state’s election officials to segregate mailed ballots cast by anyone on a list of 20,000 registered voters whom the Trump administration believes to be noncitizens. As of this writing, the suit is pending in the federal district court, after the U.S. Court of Appeals for the 9th Circuit denied DOJ’s emergency appeal for failing to give the district court an adequate chance to issue a ruling, but the merits of the case are likely to make their way to the Supreme Court very soon.
As authority for its suit against California, Trump’s DOJ is relying upon the federal statute that makes voting by noncitizens in federal elections a crime: 18 U.S.C. § 611. There are two fundamental problems, however, with DOJ’s reliance on this statute. First, the original public meaning of the Constitution does not give Congress the authority to make voting by noncitizens a crime; rather, the Constitution leaves it to the states to decide whether or not noncitizens may vote, and this is true even for federal elections.
Second, even assuming that 18 U.S.C. § 611 is a valid exercise of congressional power under the Constitution, it does not authorize DOJ to seek an injunction that would interfere with a state’s rules and procedures for conducting the “manner” of the current congressional elections. Article I, Section 4 of the Constitution provides that state law will govern the “manner” of administering congressional elections unless and until Congress enacts alternative procedures for their administration; 18 U.S.C. § 611 is a criminal law and does not regulate the “manner” of administering elections and thus offers no basis for DOJ or a federal court to supersede the state’s administration of the election.
As to the first problem, the Constitution creates a clear division of authority between determining who can vote in congressional elections and regulating how the voting process occurs. As to the how, as noted, Article I, Section 4 of the Constitution empowers Congress to override state regulations if Congress so wishes. But as to the who, the Constitution lodges the power to determine the qualifications for voting in congressional elections to the states, with Congress having no authority to change those qualifications.
To be sure, a series of important constitutional amendments constrains the degree to which states can set those qualifications. The 15th Amendment prohibits racial discrimination in doing so. The 19th Amendment similarly prohibits sex discrimination with respect to voting rights. The 24th Amendment prohibits a state from making payment of a poll tax a qualification for voting in a federal election. And the 26th Amendment prohibits states from denying an equal opportunity to vote based on age to any citizen at least 18 years old.
But none of these amendments prevent states from setting other qualifications or extending the right to vote. States, for example, could grant 16-year-old citizens the right to vote in congressional elections, and Congress cannot override a state’s decision to do this. The Constitution is explicit on this point. Article I, Section 2, clause 1 provides for the House of Representatives that “the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” The 17th Amendment contains the same provision for elections to the U.S. Senate. Thus, if a state were to grant 16-year-old citizens the right to vote for the lower house of the state legislature, the Constitution requires that 16-year-old citizens in that state must have the right to vote for that state’s Representatives and Senators in Congress. No Act of Congress could take away this right to vote in congressional elections granted to 16-year-olds by the state.
The same point applies to voting by noncitizens. Currently, no state chooses to let noncitizens vote for the lower house of the state’s legislature. But if a state decided to let resident aliens vote in these elections, then resident aliens would also be eligible to vote in the state’s congressional elections.
The Supreme Court previously has made clear this distinction between who and how. In 2013’s Arizona v. Inter Tribal Council of Arizona, Inc., which involved the National Voter Registration Act, Justice Antonin Scalia wrote in the opinion for the court (with its own emphasis on the two key words): “Arizona is correct that the Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them.” Scalia elaborated: “Prescribing voting qualifications, therefore, ‘forms no part of the power to be conferred upon the national government’ by the Elections Clause, which is ‘expressly restricted to the regulation of the times, the places, and the manner of elections’” (quoting Alexander Hamilton in The Federalist No. 60). Scalia then explained why: “This allocation of authority sprang from the Framers’ aversion to concentrated power. A Congress empowered to regulate the qualifications of its own electorate, Madison warned, could ‘by degrees subvert the Constitution.’”
The prohibition on noncitizen voting in 18 U.S.C. § 611 contravenes this constitutional division of authority. This congressional statute makes it “unlawful for any alien to vote in any election held solely or in part for the purpose of electing a candidate for … Member of the Senate [or] Member of the House of Representatives,” and it does so regardless of whether the state in question permits noncitizens to vote in these elections. The statute lets states allow noncitizens to vote for state or local offices, but a state must do so “in such a manner that an alien has the opportunity to vote for such other purpose, but not an opportunity to vote for a candidate for any one or more of such Federal offices.” Thus, according to this federal statute, a state has no choice in the matter of whether or not a noncitizen can vote in a congressional election. This makes 18 U.S.C. § 611 unconstitutional.
I am not the first to reach this conclusion. A federal district court in Florida did so recently. More significantly, that district court had asked Paul Clement, the distinguished former U.S. solicitor general in President George W. Bush’s administration, to write an amicus brief on the issue. After undertaking a thorough analysis of the matter, Clement concluded “the better view is that because §611 was intended to criminalize alien suffrage in federal elections, regardless of state law, it sets a voter qualification—which only the states may do.”
To be clear, Congress can make noncitizen voting a crime if (but only if) that criminality is contingent on noncitizen voting also being unlawful in the applicable state. In that context, the congressional statute could be understood as merely regulating procedures for implementing congressional elections, and not determining who is permitted to vote in them. One might then try to argue that 18 U.S.C. § 611 can be sustained as this kind of statute as long as the relevant state currently criminalizes noncitizen voting. The difficulty with this argument, as Clement explained, is that § 611 is not written that way; instead, it emphatically makes noncitizen voting in congressional elections a federal crime regardless of what the state wants.
In any event, let’s assume that 18 U.S.C § 611 could be construed to be constitutional in the way just described. That still doesn’t give Trump’s DOJ the authority to seek an injunction in federal court to force California to change its procedures for administering the current congressional election. Congress would have needed to enact a different law, exercising its authority under the Constitution’s Article I, Section 4 to “alter” the “manner” by which California has chosen to regulate the voting process.
There was a time in American history when Congress enacted a statute to provide federal oversight of a state’s procedures for conducting congressional elections. In the wake of the Civil War, the first Enforcement Act of 1871 empowered two federal “supervisors” in each of the state’s voting precincts, who were appointed from “different political parties” by the federal circuit court for their state, to monitor the voting process for congressional elections. This statute gave these supervisors authority similar to what Trump’s DOJ is currently seeking. The supervisors, for example, could “challenge any vote offered by any person whose legal qualifications the supervisors, or either of them, shall doubt.” To be sure, these supervisors were not part of the Department of Justice, which Congress had created the previous year. Rather, the requirement that these two supervisors be from “different political parties” and appointed by the judiciary was designed to keep them insulated from a cabinet department under the control of a partisan president.
In any event, in 1894 Congress repealed all the provisions of the 1871 Act that had created these supervisors for congressional elections. Nothing like them existed until the Voting Rights Act of 1965, when Congress enacted new provisions for monitoring elections and enforcing the prohibition against racial discrimination in voting. These new provisions did give some significant enforcement powers to the DOJ and federal courts, but they were focused on guaranteeing the equal opportunity to vote regardless of race. These new provisions did not give DOJ or the federal courts any authority to interfere with the counting of ballots in a congressional election in order to prevent ballots cast by noncitizens from being counted.
Indeed, throughout the 20th century, the prevailing understanding was that federal courts lacked the power to intervene in a state’s procedures for counting votes in a congressional election, even if a suit was brought by a candidate with a direct stake in the matter. The most famous example of this is the 1948 Senate race that Lyndon Johnson won by 87 votes. His opponent, former Texas governor Coke Stevenson, sued in federal court to block the counting of votes believed to be fraudulent in the infamous Ballot Box 13. In an exercise of the Supreme Court’s emergency docket, however, Justice Hugo Black ordered that the federal court refrain from interfering with the state’s counting process. After an unusual four-hour oral argument held in Black’s chambers, which he permitted members of the press to attend, he announced his ruling orally. The New York Times reported that he stated that “before a court interfered with an election there must be a statute clearly authorizing this.” The Times also quoted Black as saying, “I think it is impossible to interpret present statutes that Federal courts may go into a state and suspend its process of electing a Senator.” (For more details on the fight over Ballot Box 13, see chapter 8 of my 2024 book “Ballot Battles: The History of Disputed Elections in the United States.”)
There is one caveat. In Bush v. Gore, the court modified Black’s understanding of the federal judiciary’s power insofar as that unusual (and controversial) case permitted a candidate to assert an equal protection claim as grounds for constraining a state’s election procedures. But Bush v. Gore did not involve a suit by the federal DOJ. Indeed, President Bill Clinton insisted that his administration refrain from any involvement in the litigation between the two candidates in the 2000 presidential election. The idea that the federal DOJ could have brought suit in federal court to control the counting process in that election – contrary to Florida’s own procedures – would have astonished even those who supported the idea that the candidates themselves could invoke the authority of the federal courts to enforce Florida’s compliance with constitutional requirements respecting the electoral process.
The bottom line is this: In a congressional election, the state administers the electoral process according to its own laws, subject to the prerogative granted to each congressional chamber by Article I, Section 5 to be the “Judge of the Election … of its own Members.” If Congress wants to add DOJ-initiated federal court proceedings to the overall process of counting, canvassing, and certifying the votes in a congressional election – which would still be subject to being overridden by the ultimate authority of each chamber to adjudicate any disputes over the outcome pursuant to Article I, Section 5 – Congress can do by exercising its Article I, Section 4 authority. But unless and until Congress does that, DOJ has no role to play.
Trump and his DOJ clearly wish the situation were different. But it is the job of the Supreme Court to uphold the law as it is. That job may require the court to reject the effort by Trump’s DOJ to interfere with California’s procedures for conducting this year’s midterm elections.