Actually, It’s Not Unconstitutional for Noncitizens to Vote in Federal Elections

On the November 4 episode of Akhil Amar’s Amarica’s Constitution podcast, guest Steven Calabresi, Northwestern law professor and co-founder of the Federalist Society, made a point that might surprise some people: nothing in the Constitution requires voters in federal elections to be U.S. citizens. The notion that one must be a citizen to vote, he said, “is contrary to the text of the Constitution.” ¹ A federal judge in Miami confirmed this in a ruling a month earlier.

Related:

• “Concurrent Review and Judicial Supremacy” (2025)
• “Libertarian Centralists” (2009)
• “Federal Judges Aren’t Real Judges” (2023)
• “Akhil Amar on Jury Nullification and State Nullification (Converse-§1983 Laws)” (PFS, 2026)
• “A Simple Libertarian Argument Against Unrestricted Immigration and Open Borders” (2005)
• “Armoutidis, Who Owns Public Property? Libertarian Property Theory and the Problem of Immigration” (2025)
• “Hoppe’s Democracy with Stephan Kinsella” (Human Action Podcast, 2020)
• Kinsella, Isgur on Pre-Confirming Supreme Court Justices: Why Not All Nine?

1. What the Constitution Says

The key provision is the one Calabresi led with. Article I, Section 2 provides that House electors “shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature” (i.e., usually the lower house), and the Seventeenth Amendment copies that rule for Senate elections. Presidential electors are appointed however each state legislature “may direct.” ² Notice what the House clause does: it sets no federal voter qualifications at all. Instead it borrows each state’s rule for electing the lower house of its own legislature.

Madison explained why in Federalist No. 52. Leaving suffrage to Congress would have been “improper,” and one national rule “would probably have been as dissatisfactory to some of the States as it would have been difficult to the convention.” So the convention tied the federal electorate to “the standard already established, or which may be established, by the State itself.” ³ The two electorates are locked together. As Calabresi put it, whoever a state lets vote for its lower house is, “by operation of the Constitution,” automatically eligible to vote for Congress.

That is how many Americans voted in federal elections long before any constitutional amendment protected their right to. Montana gave women the vote in 1914, so Montana women voted for Congress and helped elect Jeannette Rankin, the first woman in Congress, who took her seat in 1917, three years before the Nineteenth Amendment. ⁴ Georgia lowered its voting age to 18 in 1943, so eighteen-year-old Georgians voted for Congress and President for almost three decades before the Twenty-sixth Amendment. ⁵

The same logic applies to noncitizens. If California amended its constitution tomorrow to let green-card holders vote for the State Assembly, they would automatically be qualified to vote for California’s Representatives and Senators. (However, note that the clause looks only at the state legislature. When Takoma Park, Maryland, lets noncitizens vote for its city council, that doesn’t make them eligible to vote for Congress, because a city council isn’t “the most numerous Branch of the State Legislature.”)

Nothing else in the Constitution prevents noncitizens from voting in such a case. The Framers knew how to require citizenship: a Representative must have been a citizen for seven years, a Senator for nine, and the President must be a “natural born Citizen.” ⁶ But they imposed no such requirement on voters. The Fifteenth, Nineteenth, Twenty-fourth, and Twenty-sixth Amendments forbid denying “citizens” the vote on certain grounds, but none says only citizens may vote. Congress may alter the “Times, Places and Manner” of federal elections. But as Justice Scalia wrote for the Court in 2013, that clause “empowers Congress to regulate how federal elections are held, but not who may vote in them.” ⁷

2. Noncitizens Used to Vote

This isn’t just a textual curiosity. Calabresi noted that through the 1870s, states let noncitizens who had declared their intent to naturalize vote, and therefore vote for Congress too. In fact the practice lasted much longer. In Minor v. Happersett the Supreme Court observed that “citizenship has not in all cases been made a condition precedent to the enjoyment of the right of suffrage,” pointing to Missouri and eight other states that let declarant aliens vote. ⁸ At one time or another as many as forty states and territories allowed it. It died out amid World War I–era nativism, and Arkansas was the last holdout, in 1926. ⁹ Today a handful of towns, mostly in Maryland and Vermont, let noncitizens vote in local elections. Meanwhile, states keep adding explicit citizens-only language to their constitutions; all fifteen such amendments put to voters from 2018 through 2025 passed. ¹⁰ So noncitizens can’t vote for Congress anywhere. That’s not because the federal Constitution forbids it. It’s because no state lets them vote for its legislature.

3. But It Is Still Illegal (For Now)

So is it “not illegal” for noncitizens to vote? Not quite. Since 1996, federal law has made it a crime, punishable by up to a year in prison, for “any alien” to vote for President, Senator, or Representative. There are narrow exceptions for local-only ballots and for people raised here by citizen parents who reasonably thought they were citizens. A noncitizen who votes unlawfully is also deportable. ¹¹ So when Calabresi says Congress “could pass a law” deporting aliens who vote, it already has. State law matters too: California’s constitution provides that “A United States citizen 18 years of age and resident in this State may vote.” ¹² A noncitizen who slips through California’s “porous” registration system isn’t qualified under California law; he’s breaking it. Calabresi’s real point is about who enforces these rules: California, not the President. Amar added that Washington can’t commandeer state officials, and the courts agreed. The Ninth Circuit refused to order California to segregate the ballots of the 20,000-odd people DOJ claimed were noncitizens. On November 2 the Supreme Court declined to intervene, with no noted dissents, just as Amar had predicted. ¹³

4. Is the Federal Ban Itself Unconstitutional?

Here’s where it gets interesting. If the Constitution commits voter qualifications to the states, then § 611, which bars aliens from voting for federal office whatever state law says, looks like Congress setting a qualification. On October 1, a federal judge in Miami agreed. Judge David Leibowitz, with help from court-appointed amicus Paul Clement, dismissed a § 611 prosecution of a noncitizen accused of voting in 2020. He held the statute unconstitutional as applied because “Congress has no power to say who can vote or who cannot vote in federal elections.” ¹⁴ The ruling is narrow and binds no other court, Florida can still prosecute under its own law, and DOJ says it “deeply disagree[s].” But Ohio State’s Ned Foley makes the same argument: § 611 “sets a voter qualification—which only the states may do,” and could be saved only by tying it to state law. ¹⁵ Amar, “hilariously” to Calabresi’s right (his word), would let Congress use its “plenary power” over aliens, which he roots in the Foreign Commerce Clause. He thinks Congress could at least make it a crime for enemy aliens to interfere in federal elections, preempting state law. Calabresi agrees Congress could deport alien voters. I’m not so sure. The “plenary power” over immigration is a nineteenth-century judicial invention, ¹⁶ and reading “Commerce … with foreign Nations” to cover who casts ballots in California is the same move that turned the Interstate Commerce Clause into a general police power.

Conclusion

I don’t think this is a good thing, just surprising. As Hoppe shows in Democracy: The God That Failed, democracy turns the state into a commons that every voter is free to loot, and widening the franchise just widens the pool of looters. ¹⁷ The point is structural. Whatever its other faults, the Constitution left suffrage to the states. It’s amusing to watch a Federalist Society co-founder remind a Republican President of that, while self-described originalists cheer federal lawyers demanding that California set aside ballots. Decentralization is a check on federal power only if we let it work, even when we don’t like what Sacramento does with it. ¹⁸

1. Akhil Reed Amar & Andy Lipka, “Preserving Voting, in Booths and on Juries – Special Guest Steven Calabresi,” Amarica’s Constitution (Nov. 4, 2026), at about 4:44–7:00 and 1:18:35–1:25:20. [↩]
2. U.S. Const. art. I, § 2, cl. 1; amend. XVII; art. II, § 1, cl. 2. [↩]
3. James Madison, “The Federalist No. 52” (1788). [↩]
4. Brandon J. Murrill, “The Nineteenth Amendment and Women’s Suffrage Part 4: The Progressive Era and Ratification,” CRS Legal Sidebar LSB10899 (Jan. 13, 2023). [↩]
5. “The Twenty-Sixth Amendment and Reduction of the Voting Age (Part 2): History of Voter Age Qualifications,” CRS Legal Sidebar LSB11287 (Apr. 23, 2025). [↩]
6. U.S. Const. art. I, § 2, cl. 2; art. I, § 3, cl. 3; art. II, § 1, cl. 5. [↩]
7. Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. 1 (2013), quoting Hamilton in Federalist No. 60 that prescribing voter qualifications “forms no part of the power to be conferred upon the national government.” But see Oregon v. Mitchell, 400 U.S. 112 (1970), where a fractured Court let Congress lower the voting age to 18 in federal but not state elections; the Twenty-sixth Amendment overtook it the next year. [↩]
8. Minor v. Happersett, 88 U.S. 162, 177 (1874). [↩]
9. See “Non-citizen suffrage in the United States,” Wikipedia; Jamin B. Raskin, “Legal Aliens, Local Citizens: The Historical, Constitutional and Theoretical Meanings of Alien Suffrage,” University of Pennsylvania Law Review 141 (1993): 1391. [↩]
10. Ryan Byrne, “Six Citizenship Voting Measures on the Ballot in 2026 Continue Historical Trend,” Ballotpedia News (July 8, 2026). [↩]
11. 18 U.S.C. § 611, added by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208; 8 U.S.C. § 1227(a)(6). [↩]
12. Cal. Const. art. II, § 2. [↩]
13. Amy Howe, “Supreme Court Declines Trump Administration’s Request to Intervene in California Ballot Dispute,” SCOTUSblog (Nov. 2, 2026), discussing United States v. California, No. 26A624. [↩]
14. United States v. Cox, No. 25-cr-60249 (S.D. Fla. Oct. 1, 2026); see Alex Ebert, “Migrant Voting Case Tossed, Judge Calls Law Unconstitutional,” Bloomberg Law (Oct. 2, 2026); Stephen Richer, “A Noncitizen Voting Ruling With Big Implications for the SAVE America Act,” Cato at Liberty (Oct. 2, 2026). [↩]
15. Edward B. Foley, “The Trump Administration’s Attempt to Prevent Noncitizen Voting and the Role of the Supreme Court,” SCOTUSblog (Oct. 27, 2026); see also Stephen Mortellaro, “The Unconstitutionality of the Federal Ban on Noncitizen Voting and Congressionally-Imposed Voter Qualifications,” Loyola Law Review (forthcoming), discussed at Election Law Blog. [↩]
16. See Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581 (1889). [↩]
17. Hans-Hermann Hoppe, Democracy: The God That Failed (New Brunswick, N.J.: Transaction, 2001). [↩]
18. See Kinsella, “Concurrent Review and Judicial Supremacy,” StephanKinsella.com (Mar. 14, 2025); idem, “Libertarian Centralists,” StephanKinsella.com (Sept. 17, 2009). [↩]