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Noncitizen Voting Rights: A Survey of an Emerging Democratic Norm

September 2003

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David C. Earnest

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Noncitizen Voting Rights:

A Survey of an Emerging Democratic Norm

David C. Earnest

Department of Political Science

The George Washington University

Washington, DC

earnest@gwu.edu

August 29, 2003

This paper is prepared for delivery at the 2003 annual convention of

the American Political Science Association, Philadelphia, Pennsylvania,

August 28-31, 2003. Copyright by the American Political Science

Association.

I would like to thank Martha Finnemore, James N. Rosenau, Susan Sell

and Erik Voeten for their helpful comments on previous drafts of this

paper. I also thank Ragne Beiming, Andreas Carlgren, Brita Cronquist,

Christoph Meran, Carlos Orga, Claes Thorson, and Tomas Udden for

patiently responding to my many questions about their respective

states’ policies and practices.

Noncitizen Voting Rights: A Survey--Page 1

David C. Earnest

. . . the citizenship qualification carries the aura of

inevitability that once attached to the property, race and gender

[voter] qualifications.1

As Raskin (1993) suggests in the epigraph, to many observers it

seems only natural that citizenship is a prima facie qualification for

the right to vote. Yet, like previously “natural” qualifications for

voting such as race, gender or property, states and citizens of

democracies across the globe have questioned both the practicality and

the morality of limiting the franchise to those who are citizens. In

an era of large-scale migration, democracies today host populations of

aliens that reside within their borders for years—-if not decades or

lifetimes—-that pay taxes, face compulsory obligations like the draft,

and often share more political interests with their local neighbors

than they do with the citizens in their home countries.2 It is little

surprise, then, that in the last four decades governments and citizens

have come to embrace voting rights for aliens.

What is surprising, however, is the extent of alien suffrage

today. As this chapter shows, there are twenty-two states in which

resident aliens have at least some voting rights, and two others whose

constitutions explicitly permit their legislatures the discretion to

enfranchise resident aliens. Though rights in these states differ

widely in their scale--that is, the right to vote in local versus

national elections--and in their scope--the right belongs to specific

alien nationalities versus a general right for all resident aliens--

this variability raises important questions about the sources of these

rights. Why do some states limit rights to specific nationals, while

others extend the rights to all resident aliens? Why can resident

aliens vote in national elections in some states, and only in local

elections in others? Why can resident aliens within a given nation-

state vote in some municipalities, but those in other municipalities

have no voting rights? There are six states, furthermore, which have

considered alien suffrage but have rejected it. These six states—-plus

two others that “rolled back” or rescinded the rights—-offer important

opportunities for comparison. Why did the Netherlands enact alien

suffrage with nearly universal support, for example, but Belgium failed

to do so? Why did Australia roll back the rights it extended to

British nationals, but New Zealand expanded its voting rights for

resident aliens to become the most permissive state in the world?

1 Jamin B. Raskin, “Legal Aliens, Local Citizens: The Historical,

Constitutional, and Theoretical Meanings of Alien Suffrage.”

University of Pennsylvania Law Review, v. 141 (April 1993), p. 1394.

2 Again it is worth quoting Raskin: “While my Canadian and Brazilian

neighbors and I may have different interests or approaches on

international issues like acid rain or regional trade, we presumably

have identical interests in efficient garbage collection, good public

schools, speedy road repair, and so on.” (Raskin 1993, p. 1452)

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David C. Earnest

These cases are in addition to the consideration that international law

gives to the voting rights of resident aliens, in particular the

Maastricht Treaty of the European Union as amended by the Treaty of

Amsterdam. Taken together, there are 31 democratic states that have

alien franchise rights, have rescinded such rights, or have considered

but specifically rejected such rights. This represents one in four of

the world’s democracies, a substantial democratic practice that

deserves broader investigation.

This paper surveys the practice of voting rights for resident

aliens in the world today. It shows that although the practice is

surprisingly widespread--from Europe to South America, to Australia and

New Zealand--the specific institutions that each state has adopted vary

considerably. Some states have enacted rights that discriminate on the

basis of the resident alien’s nationality, others have

nondiscriminatory rights, and some have moved from a discriminatory

regime to a nondiscriminatory one. Some democracies allow resident

aliens to vote only in local elections, while others permit resident

aliens to vote in national or parliamentary elections. The paper

proceeds to develop a typology of voting rights on the basis of two

criteria--the discriminatory or nondiscriminatory nature of the right,

and the type of election in which resident aliens may vote. I conclude

the paper with a discussion of the implications of this typology for an

investigation of the reasons why states have adopted voting rights for

resident aliens.

It is important to note that while I attempt to be comprehensive,

the cases this paper identifies may not include every example of a

state that enfranchises resident aliens.3 There are a number of reasons

to suspect it is not exhaustive. For one, as this paper shows, some

states allow municipalities and sub-national jurisdictions to determine

their own qualifications for the franchise. This is typical of federal

states such as the United States and Switzerland. As a consequence

there may well be a number of cities, towns, or provinces in which

resident aliens can vote but may not participate in national elections.

Vienna, Austria just recently enfranchised its entire population of

resident aliens, for example, even though national law limits the right

to citizens of EU member states. (Meran 2003) As the case of the

United States shows, in which only a few small towns offer the

franchise to resident aliens, these cases may be obscure and easy to

overlook.4 Because the political rights of resident aliens may vary

within states as well as between them, can vary over time, and may even

vary on the basis of issues (such as the practice in Chicago and New

York City of allowing resident aliens to vote in school board

elections) one can reasonably surmise that a number of observations may

be omitted from this paper. Another reason to suspect this paper is

not exhaustive is that the practice of enfranchising resident aliens

remains controversial. The German Federal Constitutional Court argued

3 Jordan (1993) mentions Argentina as a state that allows all resident

aliens to vote, for example, though I have found no other sources to

confirm this.

4 Of the six towns in Maryland that allow resident aliens to vote in all

municipal elections, for example, by far the largest is Takoma Park,

with a population of 17,299 according to the 2000 census.

Noncitizen Voting Rights: A Survey--Page 3

David C. Earnest

that such rights undermined democratic legitimacy when it struck down

the voting rights which Schleswig-Holstein and Hamburg allotted to

their resident aliens. (Tomforde 1990) Negative observations by their

nature are difficult to observe; the controversy surrounding the

enfranchisement of resident aliens makes them more so.

A final reason to suspect this paper may overlook important

examples is that, at least in recent years, political scientists

largely have ignored “technical” issues like voter qualification

requirements. Most political science data on electoral systems today,

such as the Comparative Study of Electoral Systems dataset, collect

data only on electoral institutions such as legislative, executive and

judicial structures, electoral rules for the counting and casting of

votes, and apportionment. It seems as if political scientists treat

voter eligibility as an axiomatic, technical-legal issue that is

largely apolitical; if so, this is an ironic assumption since legal

scholars have argued that the reasons for and barriers to alien

enfranchisement, at least in the United States, are political rather

than legal (Neuman 1992, pp. 322-330; Raskin 1993, pp. 1431-1442;

Harper-Ho 2000). The issue of voting rights for resident aliens

reminds us that, just as in the era of suffragettes and the civil

rights movement, voter eligibility requirements remain a highly

contested political process that is centrally constitutive to politics,

since it defines the body politic. Alien suffrage is an important

example of an expansion of the franchise for another reason,

furthermore: resident aliens are perhaps the first social group to

receive voting rights in the absence of large-scale social unrest or

war. Unlike the women’s suffrage and civil rights movements, resident

aliens have received the franchise without an attendant social

upheaval. Voter eligibility requirements remain highly political, yet

at least for resident aliens the nature of this contestation has

changed.

Despite these reasons for possible oversights, the available

evidence shows that the practice of enfranchising resident aliens is

prevalent among democracies. As the timeline in Figure 1 shows,

furthermore, the practice is spreading. This growth begs important

questions that I address in another study (Earnest, forthcoming): does

the growth of these rights indicate an emerging norm of democratic

practice? If so, to what degree do states exercise discretion over the

institutional implementation of the norm? As this empirical overview

shows, furthermore, there is considerably variation in the scope and

scale of the rights that states have provided to resident aliens. This

variation itself is an important puzzle.

A Typology of Resident Alien Suffrage

The voting rights that aliens have vary widely from state to

state both in their scope and scale. For the purposes of this survey,

the “scope” of resident-alien voting rights refers to the size of the

alien population in a given state that has the franchise. Some states

extend voting rights to resident aliens of all nationalities, while

other states offer the franchise only to resident aliens who have

migrated from specific countries. The “scale” of voting rights refers

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David C. Earnest

to the types of elections in which resident aliens may vote. In some

states, resident aliens can vote only in municipal, local or state

Figure 1: Postwar timeline of resident-alien voting rights.

elections, while in others they have the right to vote in elections for

national executive or parliamentary office. Using the scope and scale

of voting rights as axes, one can typify the cases of states that

enfranchise resident aliens into different categories. This paper

categorizes the states that have considered or that allow voting rights

for resident aliens into six groups: (a) those states that have

considered but rejected such rights; (b) those states in which the

national government does not grant a right to vote, but localities,

cities, or provinces may offer voting rights to resident aliens for

local elections only; (c) states in which the national government

enfranchises specific nationalities only, but only for local elections;

(d) states in which the national government enfranchises specific

nationalities only, but these nationalities may vote in parliamentary

or national elections; (e) states in which the national government

enfranchises all resident aliens irrespective of nationality, but these

aliens may vote only in local elections; and (f) states in which the

national government enfranchises resident aliens irrespective of

nationality, and these resident aliens may vote in parliamentary or

national elections.5 It is important to note that states within these

5 This typology may be inexact, however. At least one state (Sweden)

has allowed resident aliens to vote in national referenda, even though

Switzerland (Jura;

Neuchatel since 1849)

Chile

Barbados

Colombia

Netherleands

EU (Maastrict Treaty)

Finland (since 1919) New Zealand Venezuela Takoma Park, MD

Estonia

Australia Portugal Ireland

Sweden (national) Bolivia

United Kingdom (local only) Arlington, VA

Denmark Spain (school board)

Israel

Uruguay (school board) Norway Iceland EU (Treaty of Amsterdam)

1945

1950

1960

1970

1980

1990

2000

Canada France Germany Belgium

Belgium Japan

Australia Washington, DC France

Los Angeles Latvia

Massachusetts

Italy

New York

YEAR

Ireland

Opted not to enfranchise

resident aliens Enfranchised resident aliens

Noncitizen Voting Rights: A Survey--Page 5

David C. Earnest

Figure 2: The scope and scale of resident-alien voting rights in 26

states. *National constitution provides for an act of law to enfranchise

resident aliens, but legislature has not enacted such a law.

categories vary as well. Uruguay and New Zealand each allow any

resident alien to vote in national elections, for example. Uruguay

requires the alien, however, to have resided in Uruguay for fifteen

years before qualifying for the franchise, a stark contrast to New

Zealand’s residency requirement of one year. Likewise, several states

have constitutional provisions the permit the legislature to enact law

that would enfranchise resident aliens, but have not done so. Figure 2

graphs those states that allow resident aliens to vote according to the

discriminatory nature of and scale of the rights.

it normally permits them to vote only in local elections. (Beiming and

Thorson, 2003)

Australia (before 1984)

Barbados

Canada (before 1975)

New Zealand (since 1967)

Uruguay

United Kingdom

Ireland (since 1984)

New Zealand (before 1967)

Portugal

Local Elections National Elections

Denmark (1977 to 1981)

Estonia

Finland (1981 to 1991)

Iceland (1920 to 1995)

Israel

Norway (1978 to 1982)

Localities only

Canada

Germany (1989-1990)

Switzerland

United States

Belize

Bolivia*

Chile

Colombia*

Denmark (since 1981)

Finland (since 1991)

Hungary

Ireland (1963 to 1984)

Netherlands

Norway (since 1982)

Spain

Sweden

Venezuela

Specific resident aliens

(Discriminatory)

All resident aliens

(Nondiscriminatory)

Scale of Rights

Scope of Rights

Page 6--Noncitizen Voting Rights: A Survey

David C. Earnest

Voting Rights Granted by Localities

In federal systems, local or provincial governments may enjoy the

constitutional authority to determine voter eligibility qualifications

for their own local elections, and may determine qualifications for

national elections as well (some may even have “citizens” who are not

citizens of the nation-state). In several of these federal states

municipalities or provinces have granted resident aliens the right to

vote. As a consequence, several federal states have produced a

variety of resident-alien voting regimes that differ not only from

other nation-states but from other jurisdictions within the federal

system as well. In this respect, the practice of enfranchising

resident aliens is a “bottom-up” phenomenon that emerges first at the

local level. There are four important examples of resident-alien

voting rights emerging at the local level in federal systems: the

Federal Republic of Germany, Switzerland, Canada and the United States.

In the Federal Republic of Germany, two states and West Berlin

established limited voting rights for resident aliens in 1989. Hamburg

enfranchised all resident aliens who had resided in the state for more

than eight years to vote in local elections, while Berlin required only

five years of residency (Neuman 1992; Soysal 1994, p. 128). Schleswig-

Holstein also limited the voting of resident aliens to local elections

only but further limited these rights to Danish, Irish, Dutch, Norse,

Swedish and Swiss residents who had five or more years of residency.

The franchise rights in these two German states were short-lived,

however; the Federal Constitutional Court ruled in 1990 that both the

Hamburg and Schleswig-Holstein laws violated the Basic Law (Neuman

1992).

Challenges to local resident alien voting laws in Switzerland, by

contrast, have survived constitutional scrutiny because Article 39(1)

of the Swiss constitution reserves for states the explicit power to

regulate the exercise of political rights in all cantonal and municipal

matter. Two cantons, Neuchâtel and Jura, have constitutions that

permit resident aliens to vote. Neuchâtel’s practice of alien

suffrage dates to 1849 and was restored after a decade-long suspension

in the late 19th century; Jura’s practice dates to its inception as the

twenty-third Swiss canton in 1979. Seven other cantons have considered

but rejected initiatives to enfranchise resident aliens.

In North America, resident aliens cannot vote in national

elections in either the United States or in Canada. But in both

nation-states a few jurisdictions have extended voting rights to

resident aliens. The Canadian constitution expressly limits voting

rights in federal elections to citizens, but in Saskatchewan and Nova

Scotia British citizens may vote in provincial elections.6 (Soysal 1994,

p. 128; Galloway 2001, p. 192) In the United States, there currently

are a few municipalities that allow resident aliens to vote in

municipal elections. In New York and Chicago, resident aliens with

children who attend public schools can vote in school board elections

(Raskin 1993, p. 1429; Harper-Ho 2000, p. 319 and fn. 3 and 4). In May

6 It is worth noting the discriminatory nature of these rights. See the

following section that identifies other regimes that discriminate on

the basis of the resident alien’s nationality.

Noncitizen Voting Rights: A Survey--Page 7

David C. Earnest

1994, Arlington, Virginia also allowed resident aliens with children in

public schools to vote in the county’s school board election (Chung

1996, p. 176). In Takoma Park, Maryland, by contrast, since 1991

resident aliens have had the right to vote in any civic election, a

practice that has since been adopted by five other townships in

Maryland.7 The Maryland state assembly has endorsed these initiatives

by passing the necessary home-rule legislation to make these practices

constitutional under state law (Raskin 1993). In Massachusetts,

citizens in both Cambridge and Amherst approved referenda in 1999 to

enfranchise resident aliens, though unlike in Maryland the state

legislature failed to pass the necessary home-rule legislation to

enable the Cambridge and Amherst laws (Harper-Ho 2000, p. 312-13). It

is important to note, furthermore, that the Takoma Park initiative

prompted a number of unsuccessful movements elsewhere in the United

States. In Washington, DC, San Francisco and Los Angeles, rights

activists sought to obtain civic voting rights for resident aliens, but

voters in all three municipalities rejected the initiatives. Most

recently, the city council of Rockville, Maryland also considered a

measure to allow resident aliens to vote, and the mayor of Washington,

DC once again raised the issue. (Gowen 2002; Washington Post October 1,

2002)

The current patchwork of resident-alien voting rights in the

United States is an historical anomaly only in the limits of its scale.

The member states of the United States have a rich tradition of

enfranchising resident aliens that dates from the founding of the

republic to the early 20th century. Raskin (1993) and Harper-Ho (1999)

both observe that historically, states have used alien suffrage to

serve a number of different political aims, particularly during the era

of weak federalism in which states had broader authority over matters

of citizenship. As westward expansion progressed, territories used the

offer of voting rights to encourage immigrants from Europe to settle

and thus speed the territory’s admittance to the Union. Similarly,

following the Civil War southern states offered resident aliens the

right to vote in order to attract the workers who would replace the

slave labor force and to expedite Reconstruction. A second goal was

political socialization. Following Wisconsin’s lead of enfranchising

aliens who had declared their intent to naturalize (so-called

“declarant aliens”), during the mid-19th century resident alien voting

became a means of educating aliens about the interests and issues of

their communities. Other political goals of alien suffrage were less

salutary, however, as the process became intertwined with the racial,

social and political divides of the country. Raskin notes that

Northern states sought to expand alien suffrage while Southern states

sought to limit it, since legislators on both sides believed most

immigrants were opposed to slavery. Similarly, Raskin and Harper-Ho

both note that the practice of resident alien suffrage was a subtle

form of discrimination against other disenfranchised groups like women

and African Americans. It is well known that during the 19th century

race, property and gender requirements prohibited most American

citizens from voting. By giving the vote to propertied immigrant white

men, the resident alien franchise underscored that voting was not a

right of citizenship (see Raskin 1993, pp. 1425-1430). It became an

7 These are Chevy Chase sections 3 and 5, Martin’s Additions, Somerset,

and Barnesville. See Raskin 1993, p. 1462.

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David C. Earnest

implicit means of reinforcing discriminatory voter eligibility

practices. For this reasons, states continued to discriminate not only

against citizens but between resident aliens as well, as they chose to

offer voting rights only to European immigrants but not to the

burgeoning Chinese immigrant population of California and other western

states. In these respects, the 19th century practice of enfranchising

resident aliens in the United States was as much about excluding groups

of citizens from political rights as it was about including resident

aliens.

Nevertheless, the 19th century practices in the various states of

the Union have left a case-law legacy that leads most legal scholars to

argue that alien suffrage is neither prohibited nor required by the

U.S. constitution. Since the Constitution reserves for states the

right to define “electors,” furthermore, past practices suggest

resident aliens in the United States may legally vote even in elections

for national office. By law, any voter in a state of the Union is a

federal elector. For this reason, in the past resident aliens in the

United States who voted at the state level could vote in federal

elections as well. Thus Aylsworth (1931) notes that resident aliens

voted in every presidential election until 1925. At the height of the

practice in the mid 1870s, 22 of the 37 states in the Union permitted

declarant resident aliens to vote. The Supreme Court has consistently

upheld, furthermore, the right of states to determine voter eligibility

requirements and has specifically ruled that alien suffrage violates no

constitutional provisions. In terms of the United States, then, the

question of alien suffrage is purely a political rather than legal one.

As the history of alien suffrage in the United States suggests,

the very nature of federalism produces some interesting patterns of

alien suffrage both between democracies and within the democratic

states themselves. The cases of Switzerland, Canada, Germany and the

United States suggest that geography provides few obvious explanations

for the patterns of passage or rejection of resident alien franchise

rights. Schleswig-Holstein’s and Hamburg’s proximity to the Baltic

suggests the influence of Scandinavian norms of resident alien voting

along the lines of regimes in Denmark, the Netherlands, Norway and

Sweden (see below), though this cannot explain either Berlin or the

Swiss cantons of Neuchâtel and Jura (though contiguous to each other,

both cantons border on France).8 Likewise, initiatives to enfranchise

legally resident aliens in the United States have sprung up in some of

the largest cities—-Chicago, New York and the suburbs of Boston and

Washington, DC (though interestingly they have failed in Los Angeles,

San Francisco and the District of Columbia itself). This is similar to

the pattern in the Federal Republic of Germany, where the initiatives

took hold in Berlin, Hamburg and the other Baltic ports of Schleswig-

Holstein. Another recent example is the city of Vienna, which

enfranchised its resident aliens irrespective of nationality. (Meran

2003) In Switzerland, by contrast, the cantons with the largest

cities--Geneva, Zurich, Vaud (where Lausanne is located) and Bern--all

8 One possible explanation for Jura’s enfranchisement, if not

Neuchâtel’s, is that Jura is the newest canton in the Swiss federation.

It was established in 1979, a time when several European states had

started to enfranchise resident aliens.

Noncitizen Voting Rights: A Survey--Page 9

David C. Earnest

rejected resident alien voting initiatives.9 These variations within

federal systems themselves are an interesting puzzle.

Discriminatory Regimes

Several states have enacted voting rights regimes that

discriminate on the basis of the resident alien’s nationality. In some

cases the nationality criterion reflects historical relationships

between a state and its former colonies, such as Portugal’s policy of

allowing Cape Verdean and Brazilian resident aliens to vote in

parliamentary elections.10 (Katz 2000, p. 174) Another important

example is Estonia’s enfranchisement of its Russian-speaking minority.

(Laitin 1998) It is important to note, however, that these

“discriminatory” regimes may themselves reflect a latent form of

postnational citizenship. The United Kingdom’s practice of allowing

citizens of Commonwealth nations and the Republic of Ireland to vote in

Parliamentary elections--a practice that several other Commonwealth

states follow or have followed--reflects the Commonwealth’s largely

unrealized goal of a common citizenship.11 (Soysal 1994, p. 127; Rath

1990, p. 136) Likewise, as I discuss later, the European Union’s

Treaty of Amsterdam ensconces voting rights that discriminate in favor

of EU nationals who reside in other member states. These examples show

that while rights may discriminate, the nationality criterion in fact

may reflect supranational organizations if not postnational norms of

inclusion. In this respect, even discriminatory voting rights for

resident aliens may foreshadow the eroding link between citizenship and

political incorporation.

Discriminatory Rights for Local Elections

Several states allow resident aliens from their former colonies

to vote, but only in local elections. In Portugal, for one, Article

15(4) of the constitution gives resident aliens the right to vote in

local elections “subject to reciprocity” (Flanz 2000, vol. XV). Katz

(2000) notes that these special voting rights are for citizens of

Brazil residing in Portugal. In a surprising reversal of the colonial

relationship, Estonia has created limited voting rights to accommodate

what Laitin (1998) calls a “beached diaspora” of native Estonians who

9 The three other Swiss cantons that considered but failed to pass alien

voting measures are Aargau, St. Gallen and Solothrun.

10 Colonial relationships created other unexpected voting rights as

well. Under the Fourth Republic (from 1946 to 1948) “residents of the

French Territoires d’Outre Mer and Territoires sous Tutelle were

allowed to elect representatives to the French parliament” (Katz 2000,

p. 174). In other words, resident aliens residing in French

possessions overseas elected representatives to Parliament. In

essence, they had resident-alien voting rights without migrating to

France, highlighting an implicit-—but neither necessary nor sufficient-

—relationship between migration and resident-alien voting rights.

11 Galloway (2001) argues by contrast that although Nova Scotia and

Saskatchewan allow British subjects to vote in provincial elections,

these rights are “anomalous” and should be considered a “legal

anachronism.”

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David C. Earnest

speak only Russian.12 Since the Estonian constitution does not

recognize such Russian speakers as citizens, the grant of resident-

alien voting rights is one way the government has sought to incorporate

this population. But the right is limited to local elections only and

requires the Russian-speaking resident aliens to have established

permanent residence. Such resident aliens are prohibited not only from

voting in national parliamentary elections, but are prohibited from

joining parties or holding office as well.13 These facts suggest the

voting rights of Russian-speaking aliens in Estonia are the result of

changes in Estonian citizenship law after the demise of the Soviet

Union, which in effect revoked the citizenship of Russian-speaking

residents.

Other states’ discriminatory practices may also reflect specific

nationality concerns. Since 1950, Israel has allowed resident aliens

to vote in local elections, for example, but only those immigrants who

come to Israel under the Law of Return but who refuse to take Israeli

citizenship. (Aleinikoff and Klusmeyer 2002, p. 49) While the Israeli

practice does not discriminate on the basis of nationality per se, its

dependence on the Law of Return indicates the franchise discriminates

on the basis of religion.

It is worth noting that in a number of the Scandinavian states,

all of which today have nondiscriminatory voting rights for resident

aliens, these rights emerged from practices that originally

discriminated in favor of only a few specific nationalities. When

they first enacted voting rights for resident aliens, Norway, Finland

and Denmark all permitted only resident aliens from other Nordic states

to vote in local elections. (Soysal 1994; Rath 1990, pp. 136-139;

Aleinikoff and Klusmeyer 2002, p. 48) Denmark expanded the right to

all resident aliens in 1981, Norway in 1982, and Finland in 1991.

All three now require resident aliens only to have lived in the country

for a specific time. Norway requires three years of continuous

residency, Finland stipulates four years of residency, while Denmark

requires only one year (see below).

Discriminatory Rights in National Elections

The voting rights of resident aliens in Portugal, Estonia and

Israel are circumscribed when compared to the broad rights enjoyed by

resident aliens from Commonwealth states who reside in the United

Kingdom. There citizens of Commonwealth nations and the Republic of

Ireland may register to vote in national parliamentary elections.

12 The ETA news agency reports that 194,525 resident aliens were

eligible to vote in the 1999 elections. In the October 1999 local

elections, resident aliens cast 11.7 percent of the total votes. (BBC

October 16, 1999)

13 Perhaps these rights have less to do with colonial relationships per

se than they have to do with the state’s formation. Much like Estonia,

Iceland and Finland also are secessionist states that originally made

the franchise available to nationals from the parent state. Since then,

however, both Iceland and Finland have broadened the franchise to all

resident aliens.

Noncitizen Voting Rights: A Survey--Page 11

David C. Earnest

Several other Commonwealth states or former British colonies make

similar provisions. Ireland reciprocates Britain’s extension of voting

rights to Irish citizens by allowing British citizens to vote in

national parliamentary elections (though Ireland also allows resident

aliens of any nation to vote in local elections after six months

residency) (Soysal 1994, p. 127-128; Rath 1990, p. 139). Until 1984,

Australia allowed British citizens to vote in parliamentary elections.

Though Australia has since rescinded this right, those British citizens

who were previously enfranchised were granted a grandfather exception,

which in 1999 amounted to about 17,000 (Slattery 1999). Similarly,

Barbados allows those Commonwealth citizens who have resided for at

least three years prior to the election to vote in parliamentary

elections (Election Process Information Collection 2002).

Nondiscriminatory Regimes

Nondiscriminatory voting rights regimes are those in which

resident aliens do not need to satisfy a nationality qualification for

the franchise. These nondiscriminatory rights typically have residency

qualifications, however, that in some cases are quite lengthy. Some

nondiscriminatory regimes provide the right to vote only in local

elections; others provide the right to vote in national and

parliamentary elections; and some regimes--like Ireland’s and

Portugal’s--are hybrids because they do not discriminate for the right

to vote in local elections, but only resident aliens from specific

states qualify to vote in national elections.

Nondiscriminatory Rights for Local Elections

The most common form of resident-alien voting rights today is a

nondiscriminatory right to vote in local elections only. Eleven states

allow aliens who satisfy a residency requirement to vote in municipal,

provincial or other local elections; two others (Bolivia and Colombia)

make explicit constitutional provision for the national legislature to

provide such rights at its discretion. The nondiscriminatory local-

rights model differs in important ways in both scale and scope from the

discriminatory national and local regimes of states like the United

Kingdom, Estonia or Israel: while it permits voting only in local

elections, it does not discriminate among the nationalities of the

states’ immigrant populations. It is also broader in scope than the

limited rights offered by jurisdictions in Federal states like

Switzerland and the United States, since it is a right provided by the

national government rather than sub-national ones, and applies to all

municipalities, boroughs, states or other localities in a given nation-

state. In this respect it is neither geographically discriminatory (as

in federal states) nor ethnically or nationally discriminatory. In all

cases of local nondiscriminatory voting rights, however (indeed in all

cases of voting rights for resident aliens irrespective of their scope

and scale), resident aliens must reside for a given number of years

before they can vote in local elections.

This model typifies the resident-alien voting rights regimes of

Sweden, Denmark, Norway, the Netherlands, Finland, Iceland, Ireland,

Hungary, Venezuela and perhaps Belize. With the obvious exceptions of

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David C. Earnest

Belize and Venezuela (more on Belize later), the states that utilize

this model of resident-alien voting rights are European democracies.

All except Ireland and Belize have proportional representation systems,

and of these all except Venezuela have party-list electoral rules.

Belize has a plurality first-past-the-post system, Ireland has a

single-transferable-vote proportional representation system, and

Venezuela has a mixed-member proportional representation system. The

Republic of Ireland first allowed resident aliens to vote in local

elections in 1963; today Ireland has the most permissive residency

requirement, allowing aliens to vote after only six months residency in

the Republic. Sweden enfranchised resident aliens for local elections

in 1976, requiring only that the alien voter have resided in Sweden for

three years. Denmark followed suit in 1977, requiring only one year of

residency, followed by Norway in 1978, which required three years of

residency (Soysal 1994). The Netherlands, in which Rotterdam and

Amsterdam first established resident-alien voting rights in 1979 and

1981 respectively,14 has a longer residency requirement of five years

(Rath 1990, p. 139). Another more recent example is Hungary. Upon the

collapse of the Soviet Union, the newly constituted legislature passed

the Local Elections Act of 1990, which Nagy (1995) notes provides

voting-rights in municipal elections for “non-citizen permanent

residents” (p. 125).

Interestingly, Iceland has a longer history of resident-alien

voting rights, perhaps reflecting its history as secession states

(Rokkan 1999). The history of alien voting rights in Iceland is

somewhat convoluted. Article 75 of the 1920 constitution granted

voting rights to Danish nationals resident in Iceland, rights that were

eventually expanded to other Nordic immigrants (Raskin 1993, p. 1459).

Article 33 of the Icelandic constitution of 1995 stipulates, however,

that only citizens can vote. Interestingly, the 1995 constitution

accommodates “foreign nationals” who had previous voting rights under

Article 75 of the 1920 constitution in a “Temporary Provisions” section

at the end of the document. This section effectively grandfathers the

resident-alien voting rights that foreign nationals had previously

received. In this respect, the Icelandic case is an interesting one:

although the 1995 constitution eliminates resident-alien voting rights,

it does so only prospectively for future immigrants to the country.

While Norway, Denmark and Finland today allow all resident aliens

to vote in local elections, it is important to recall that these states

originally discriminated among immigrants of different nationalities.

Just as Iceland limited the rights to immigrants from Nordic countries

only, Norway, Denmark and Finland originally extended the alien

franchise to immigrants from the Nordic states. In this respect, the

alien franchise rights in these states originally were discriminatory.

Two important questions are how and why these rights evolved in scope

14 It is interesting to note that alien suffrage in the Netherlands

first emerged in municipalities, suggesting a “bottom-up” evolution of

rights that evokes the current rights in municipalities in the United

States and Switzerland. How do rights evolve from localities to become

a nationwide right? This bottom-up process, particularly when compared

to the United States and Switzerland, may provide us with insights

about the evolution of resident alien rights in other states and in

other models.

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David C. Earnest

to encompass all alien residents, not merely those from Nordic states?

A related but equally important question is, why were Norway and

Denmark’s alien voting rules originally discriminatory, but the

Netherlands’ and Sweden’s were nondiscriminatory?

Belize, the last state that I have categorized as having

nondiscriminatory rights for local elections, offers the franchise in

municipal elections only to alien residents of three years or more

(United States Library of Congress). Unlike the northern European

parliamentary democracies, however, Belize’s government is a first-

past-the-post plurality parliamentary system, undoubtedly a reflection

of its historic relationship with the United Kingdom. Like these

institutional variables, Belize’s colonial history also begs an

important question: why did Belize opt for the local model instead of

the discriminatory national-rights model that typifies the United

Kingdom, Barbados, and (until 1984) Australia?15 For this reason,

Belize offers an interesting anomalous case: it neither fits the

institutional pattern of the northern European democracies, nor the

scale of rights typical of other states with historic colonial ties to

the United Kingdom.

Nondiscriminatory Rights for National Elections

Only one nation-state offers universal resident-alien voting

rights for all elections, local to national, with only a brief

residency requirements. Prior to 1975, New Zealand allowed immigrants

from the United Kingdom to vote in parliamentary elections. Since

then, however, any immigrant who has resided in New Zealand for one

year may register to vote in national elections (Soysal 1994, p. 128;

Katz 2000). The case of New Zealand therefore is the ideal type of

resident-alien voting rights: the residency requirement is minimal

(only Ireland’s six-month requirement is shorter); and the rights are

nondiscriminatory—-any resident alien can register to vote.

Alien suffrage in New Zealand is interesting for two reasons.

First is the timing of New Zealand’s expansion of voting rights to

resident aliens. This occurred in the mid-1970s when the Scandinavian

states and the Netherlands first offered the franchise to resident

aliens. Yet the Netherlands, Sweden, Denmark and Norway opted for a

local-voting approach to alien suffrage, whereas New Zealand opted for

national voting rights. The proximate timing of the cases may offer an

15 These examples suggest a possible relationship between the

Commonwealth--or at least the United Kingdom’s colonial legacy-—and

certain forms of resident-alien franchise rights. Indeed, if common

political rights were a goal of the Commonwealth, then why did some

Commonwealth states extend voting rights to all immigrants, while other

member states restricted rights to Commonwealth citizens or offered

none at all? Why did New Zealand opt for a liberal regime that

included resident aliens of all nationalities, while Belize adopted a

narrower scale of alien voting rights? Given the variation in rights

among the 38 democracies that are members of the Commonwealth (not to

mention the inclusion of 20 non-democracies in the Commonwealth), the

relationship between alien voting rights and the Commonwealth seems

problematic at best.

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David C. Earnest

opportunity to control for as-yet-unspecified transnational or global

phenomena, such as norms of “personhood” (in Soysal’s words (1994)).

Second is the hypothesized relationship between colonial history and

alien suffrage. States with historical colonial relationships may

discriminate in favor of each other’s citizens by offering limited

voting rights to immigrants from colonial possessions (or from the

imperial state). As noted above, this may explain Australia’s

enfranchisement of British citizens prior to 1984 as well as rights in

other Commonwealth states. A key feature of this practice is, however,

their discriminatory rights; states offer voting rights only to

specific nationalities. Yet New Zealand switched in 1975 from a

discriminatory regime to a nondiscriminatory permissive one. Given New

Zealand’s colonial history, its continuing membership in the

Commonwealth, and its geographic proximity to Australia (where the

government rescinding the franchise rights of British resident aliens

only nine years after New Zealand), New Zealand’s liberal alien

suffrage regime is an interesting case.

It is important to note that at least in a de jure sense, Uruguay

also allows any alien to vote in both local and parliamentary

elections. Uruguay differs from New Zealand in one substantive way,

however. Uruguay’s residency qualification is the most exclusionary of

any nation-state that allows resident aliens to vote. Only after an

alien has resided in Uruguay for fifteen years can he or she qualify

for the franchise. This stands in marked contrast to Ireland (which

requires only six months of residency to qualify for the right to vote

in local elections) and New Zealand (which requires only a year of

residency to qualify for the right to vote in parliamentary elections).

While Uruguay’s right to vote is nondiscriminatory in a de jure sense,

then, its residency qualification raises the question of how other

qualifications for the franchise may discriminate against resident

aliens. As I note below, Venezuela also allows resident aliens to

qualify for the vote in local elections, but only after ten years of

residency. These residency requirements arguably mitigate the

nondiscriminatory nature of the de jure voting rights, and raise issues

of comparability to states like New Zealand.

Discrimination through Residency Qualifications

Three South American democracies permit resident aliens to vote,

but only after an extended period of residency that effectively

discriminates against most resident aliens. In this respect, the

residency requirement for resident aliens limits these franchise rights

to a very small number. In Chile, Articles 13 and 14 of the

Constitution entitle aliens with five years of residency to vote in

national parliamentary elections (Flanz 2000, vol. IV). The Venezuelan

constitution (Tit. III, Ch. 4, Art. 64) entitles aliens with 10 years

of residency to vote in municipal and state elections only, while the

Uruguayan constitution (Sect. III, Ch. 2, Art. 78) requires 15 years of

residency (Katz 2000). Given that all three states have zero or

negative migration rates, it is doubtful that many resident aliens

satisfy such onerous residency requirements to qualify for and claim

their franchise rights.

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David C. Earnest

It is difficult if not impossible to say when a residency

requirement becomes onerous to the point of being restrictive rather

than expansive. While Uruguay’s 15-year requirement clearly curtails

the voting opportunities of most aliens, Chile’s five-year provision is

the same as the Netherlands’ residency requirement. The scale of

resident alien rights in Chile is greater, furthermore, than in the

Netherlands; unlike in the Dutch case, resident aliens in Chile can

vote in national elections as well as local or regional elections. So

why might one categorize the Chilean case as more restrictive than the

Dutch case? Though the Chilean requirements are more permissive in

principle, the levels of immigration to Chile mean that in fact far

fewer aliens receive voting rights than the Netherlands grants to its

resident aliens. While Chile, Venezuela and Uruguay had zero or

negative immigration rates in 1999, the northern European democracies

offering nondiscriminatory local rights have net inflows of migrants

(United Nations Population Division 2002). Similarly, the number of

migrants as a percentage of the total population is much lower in the

Latin American democracies. Only one percent of Chile’s population

were migrants in 2002, though Uruguay and Venezuela had slightly higher

percentages (2.65 and 4.16 respectively). These figures suggest that

the total number of resident aliens eligible to vote is greater in

countries that host larger numbers of migrants. While one might argue

that the Chilean case parallels the nondiscriminatory national rights

of New Zealand, it seems disingenuous to overlook the overall migration

levels and net flows of these states as well as their extended

residency requirements when categorizing their alien voting rights.16

Alien Suffrage in National Constitutions

Curiously, the constitutions of two South American democracies

explicitly address the issue of alien suffrage. Colombia’s

constitution, dating to 1991, stipulates that the legislature may pass

an act to allow foreign citizens to vote in municipal or district

elections (Tit. II, Ch. 2, Art. 100, see Flanz 2000, vol. IV). The

16 Of the 31 states discussed in this chapter, in 2002 nine (Barbados,

Belize, Bolivia, Chile, Colombia, Estonia, Hungary, Latvia and Uruguay)

had negative net migration rates per 1,000 citizens. One other

(Venezuela) had a net migration rate per 1,000 citizens totals of

approximately zero. Of the 21 states with positive net migration, it

is interesting to note that migration rate alone does not appear to

predict whether or not a state will extend voting rights to resident

aliens. While notable negative cases like the Federal Republic of

Germany (2.26 migrants per 1,000 citizens) and the United States (4.53

per 1,000) have relatively high net migration rates, some of the states

offering the franchise to resident aliens have higher rates: Canada is

4.79 per 1,000 and Ireland is 4.86 per 1,000. Other notable negative

observations have relatively low migration rates, furthermore: Belgium

is 1.27 per 1,000 and France is 0.66 per 1,000 (all figures are from

United Nations Population Division 2002). Of course, net migration

rates might be significant in a comprehensive model, or alternative

measures of migration such as absolute levels might be more reliable.

But the prima facie impression is that migration rates alone are not

sufficient to explain the variation among states offering resident

aliens the right to vote.

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David C. Earnest

Bolivian constitution (of 1967 as amended in 1994) has a similar

clause: the legislature explicitly has the discretion to enfranchise

aliens to vote in local elections (Tit. IX, Ch. 1, Art. 220, see

Constitutions of the Countries of the World, vol. VII). It is

interesting to note not only that these constitutions came into being

relatively recently, but also that they explicitly give discretionary

power over resident-alien voting rights to the legislatures. Neither

legislature so far has exercised this unique constitutional authority,

however. But the mere fact that constitutional framers considered the

issue important begs the question of why?

Resident-Alien Voting Rights in International Law

In addition to the 24 states that have varying degrees of voting

rights for resident aliens, two important pieces of international law

address the issue of political rights for resident aliens. One is the

Consolidated Version of the Treaty Establishing the European Community,

as Amended by the Treaty of Amsterdam (1997; hereafter referred to as

the Amsterdam Treaty). The other is the Universal Declaration of Human

Rights.

The Amsterdam Treaty of 1997 amended, consolidated and reordered

the Maastricht Treaty of 1993 to become the legal foundation for common

foreign and security policies for the European Community member states

and for cooperation among members on issues relating to justice and

home affairs. Though the amended and consolidated version changed some

of the contentious issues of the Maastricht Treaty, it preserves an

important article that addressed voting rights for EU citizens. Part

II, Article 19(1) of the Amsterdam Treaty, echoing Article 8 of the

Maastricht Treaty, commits EU member-states to establishing voting

rights for those aliens from other EU states who reside in their

country. The language reads:

Every citizen of the Union residing in a Member State of which he

is not a national shall have the right to vote and stand as a

candidate at municipal elections in the Member State of which he

resides, under the same conditions as nationals of that State.

(Amsterdam Treaty 1997)

The rights enunciated by the treaty therefore appear to be a hybrid

type. The Treaty stipulates that resident alien be allowed to vote

only in municipal elections, reflecting the scale of rights typical of

the local voting rights regimes used by the Nordic states, the

Netherlands and others. But the Treaty also adds a discriminatory

nationality requirement; EU member states will extend the right only to

EU nationals, not to immigrants of any nationality. In this respect,

the Treaty combines the discriminatory nationality requirements typical

of the voting rights regimes of the United Kingdom, Ireland and

Portugal with the restrictive scale of the local regimes of Sweden,

Norway, the Netherlands, Spain and others.

Article 19(1) therefore is a curious hybrid that defies easy

explanation. Given the pre-existing heterogeneity of resident-alien

voting rights among European Union states, it is puzzling that the

Treaty articulated this particular set of rights with discriminatory

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David C. Earnest

scope and limited scale. Perhaps more surprisingly, some states have

revised their voter eligibility requirements to comply with Article

19(1) while others have not (notably Italy; see Aleinikoff and

Klusmeyer 2002, p. 51). Answers to these puzzles may offer some

important insights into the evolution of alien suffrage. The EU member

states’ resistance to Article 19(1) may help explain, furthermore, a

number of important negative cases (which are elaborated below).

The other notable piece of international law is the Universal

Declaration of Human Rights. Raskin (1993) argues that the Declaration

is “. . . written in such a way as to leave open the possibility that

resident aliens will have the right to vote” (p. 1458). Indeed,

Article 21 of the Declaration, which enunciates basic political rights,

uses the ambiguous term “everyone” instead of “every citizen”: Art.

21(1) states “Everyone has the right to take part in the government of

his country, directly or through freely chosen representatives.”17

(Universal Declaration of Human Rights 1948) Nowhere does the

Declaration specify citizenship as a requirement for political rights

(or any rights for that matter); it is mute, furthermore, on voter

eligibility requirements. While the phrasing of the Declaration falls

short of explicit advocacy of alien suffrage, Raskin’s argument

deserves consideration. It is telling that an important articulation

of principals of human rights decouples the ideas of citizenship and

political rights. In this respect, the Universal Declaration of Human

Rights approximates the historical condition of many states granting at

least some resident aliens the right to vote and participate in

elections.

Raskin (1993, p. 1458) also notes that the International Covenant

on Civil and Political Rights of 1966 contrasts with the Universal

Declaration of Human Rights by explicitly confining the right to vote

to citizens. Article 25 (a through c) uses the term “citizen” when

articulating a vision of political rights (International Covenant on

Civil and Political Rights 1966). The contrast with the Universal

Declaration of Human Rights begs two obvious questions: why do the two

documents have competing visions of political rights? And do these

competing visions reflect some broader phenomenon or mechanism that

might explain the variation in the observed cases of alien suffrage?

Negative Cases: States That Have Rejected Alien Suffrage

There are a number of cases where either states considered

franchise rights for resident aliens but failed to offer them, or

rescinded voting rights it had extended previously to resident aliens.

Though these failed cases vary over time, they offer both an important

theoretical counterweight and possible cases against which to test

hypotheses. These negative observations fall into two categories:

states whose governments considered resident aliens voting rights but

failed to adopt them (hereafter referred to as “failed cases”); and

states that rescinded alien voting rights (or “rolled back” cases).

17 This language creates another ambiguity, however. When it assets the

right of the individual to take part in the government of his or her

“country,” it is unclear whether this refers to his or her country of

citizenship, or his or her country of residence.

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David C. Earnest

The failed cases include Belgium, France, Italy, Japan, Latvia

and perhaps Switzerland and the United States (because the latter two

are federal nation-states, their constituent jurisdictions present both

positive and negative examples of municipalities adopting voting rights

for resident aliens). Rath (1990) notes that Belgium has considered

numerous initiatives dating back to 1972. All have failed to garner

much support, and often have faced nearly universal opposition from

parties across the political spectrum (Rath 1990, pp. 128-130). France

first considered resident alien voting in 1981, when the Partie

Socialiste (PS) first proposed an initiative to enfranchise resident

aliens. Rath (1990, p. 130) reports that the PS measure faced

widespread opposition. The Assemblé Nationale considered another

measure to enfranchise resident aliens in 2000, but the measure failed

due to constitutional concerns and opposition from the Sénat

(Aleinikoff and Klusmeyer 2002, p. 51). Aleinikoff and Klusmeyer

(2002, p. 51) also note that Italy has yet to enact the legislation to

comply with Article 19(1) of the Amsterdam Treaty.

Latvia and Japan’s consideration of voting rights for resident

aliens suggest that the state faces international pressures when

considering voting rights for resident aliens. Kashiwazaki (2000)

reports that in 1990, eleven permanent resident Korean nationals in

Japan sought from a Japanese court the right to vote in national

elections. Five yeas later the Japanese supreme court ruled that the

right to vote is reserved for Japanese nationals, but also held that

the Diet has constitutional authority to enact legislation

enfranchising resident aliens if it so chooses. In 2000 the Diet

considered but tabled such legislation despite the championing of such

voting rights by the Republic of Korea. In Latvia, the parliament

rejected a measure to permit the state’s resident aliens to vote in

local elections despite pressure from the European local governments’

Chamber of Regions and from the Latvian Human Rights committee (Baltic

News Service 1998; BBC January 31, 2000; BBC July 11, 2000).

By contrast, the federal nation-states of Switzerland and the

United States present numerous cases of resident alien voting

initiatives at the local level that have failed to win popular support.

Though as noted above two Swiss cantons have enacted resident alien

voting laws for municipal and cantonal elections, seven other cantons

have considered but rejected similar measures (Rath p. 128).18

Similarly, the success of the Takoma Park initiative and its

replication in other Maryland hamlets, not to mention the rights of

resident aliens to vote in Chicago’s and New York’s school board

elections, belies the difficulties that resident alien voting

initiatives have faced elsewhere in the United States. In the early

1990s activists in Los Angeles, San Francisco and Washington, DC tried

to adopt voting-rights measures similar to the one established in

Takoma Park. In all three cases municipal voters failed to approve the

measures (Chung 1996; Harper-Ho 2000). Similarly, though the voters in

Amherst and Cambridge, Massachusetts elected by referenda to extend

voting rights to resident aliens, the Massachusetts State legislature

failed to enact the necessary home-rule legislation that would have

18 These are Aargau, Bern, Geneva, St. Gallen, Solothurn, Vaud, and

Zurich.

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David C. Earnest

enabled the Amherst and Cambridge initiatives. It is interesting to

note, furthermore, that in both the Swiss case and in the United States

large urban areas have rejected, for the most part, alien suffrage

initiatives while smaller municipalities or cantons have enacted such

measures. This pattern contrasts, furthermore, with the Federal

Republic of Germany’s brief history of alien suffrage, which occurred

in the largely urban länder of Hamburg, Schleswig-Holstein and West

Berlin.

These failed cases raise a number of interesting puzzles. For

one, resident alien voting initiatives in France and Belgium faced

strong opposition, but similar measures in the Netherlands, Norway,

Denmark, and Sweden at the same time faced very little opposition.

What explains this variation within Europe? The failed cases in

federal systems suggest another important puzzle: the variation in

outcomes within a nation-state may (or may not) be caused by the same

mechanisms that cause the observed variation among nation-states. In

these respects, the failed cases may present important crucial cases

for a model that seeks to explain variation in voting rights for

resident aliens. Finally, to what degree do settlement patterns

affect the outcome of resident alien franchise initiatives within

federal states? Are municipalities, cantons, länder or states with

large immigrant populations more or less likely to enact alien

suffrage? Does alien suffrage depend on the ethnic composition of

immigrant groups? Does this pattern hold across the federal cases as

well as other cases?

Australia, Canada and the United States present important cases

of rolled-back alien voting rights that contrast with the failed cases.

As noted above, in 1984 Australia eliminated the voting rights of

British citizens resident in Australia (though it grandfathered the

rights of those British citizens who resided in Australia prior to

January 25, 1984). Canada similarly rescinded voting rights for

resident aliens who were citizens of Commonwealth states in 1975 (Kondo

2001, p. 239), though Nova Scotia and Saskatchewan have at least de

jure rights to allow British subjects to vote in provincial elections.

Though of a different historical period, the United States’ rollback of

resident-alien voting rights was of an even greater scale. Raskin

(1993) and Harper-Ho (2000) both argue that the shift in immigration

sources from Northern Europe to Southern Europe and Asia, when coupled

with the xenophobia that followed the First World War, caused most

states of the Union to reconsider granting voting rights to declarant

aliens. As Aylsworth (1931) noted, by the mid-1920s every state that

had previously allowed resident aliens to vote had rescinded the right.

From a high of 22 states in 1875, the member states of the United

States had disenfranchised all resident aliens within the country, a

remarkable reversal given what the scope and scale of resident alien

rights once had been. It would be easy to dismiss the United States’

rollback as belonging to another era, or as the product of a

historically unique confluence of war and intolerance. Such a

dismissal ignores, however, historical parallels between the 1900s and

the 1980s and 1990s in the composition and size of immigration to the

United States (Held et. al. 1999, pp. 283-326). So why did the states

rescind the rights in an era of mass migration from non-European states

when localities today once again are extending the rights in a similar

era?

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David C. Earnest

Finally, it is important to note three other potential negative

observations. The case of the Federal Republic of Germany is difficult

to categorize: is it a failed case or a rolled-back case? On the one

hand, two German länder did extend franchise rights to specific

resident aliens, but on the other, the Federal Constitutional Court

ruled these rights unconstitutional a year later, implying that

enfranchised resident aliens never consolidated these political rights.

Given that the German courts never established the legality of alien

suffrage, it seems reasonable to treat the German case as a failed

observation rather than an instance of rolled-back rights. The other

difficult case is that of the United Kingdom. Since the eligibility of

resident aliens to vote is tied to an intergovernmental organization-—

the Commonwealth—-the roll of resident aliens eligible to vote in

parliamentary elections ebbs and flows with the membership of the

Commonwealth. Although the UK’s rules of eligibility may not have

changed over the years, resident aliens theoretically may lose their

voting rights through no action of their own. In this respect, as the

case of the United Kingdom shows, the discriminatory aspect of the

these voting rights can cut both ways: it can exclude nonresident

aliens from voting as arbitrarily as it may include them. This and the

other cases of rollback highlight, furthermore, an important and

perhaps theoretically interesting phenomenon: resident aliens may be

the only voters in consolidated democracies to lose the franchise.

Whereas voting rights for citizens, women, minorities and other

previously excluded groups are now sacrosanct, states apparently may

legitimately rescind the voting “rights” of resident aliens.19

The member states of the European Union represent important

additional cases of the failure of states to adopt resident voting

rights. Although a number of EU member states had voting rights

regimes that complied with Article 19(1) before the Treaty of

Amsterdam’s entry into force, at least one state--Italy--has failed to

amend its electoral laws to comply with the provisions of the treaty.

Such legislation undoubtedly takes time to amend, and it may be that EU

member states will become compliant with Article 19(1) over time. But

if not, there may be a number of important additional cases of states

that have failed to enact alien suffrage laws even though they have

committed by treaty to doing so.

19 This begs the question as to whether or not resident aliens actually

have a right to vote. It is interesting to note that at least in

American constitutional jurisprudence, there is no “right” to vote. So

the interesting case of resident alien voters highlights two important

questions: to what degree is the franchise a fundamental right in the

various nation-states mentioned in this paper? And to the degree it is

a right, have states literally created “second-class citizens” in

resident alien voters, whose franchise rights the state may arbitrarily

abridge? While the case of the United Kingdom seems to affirm the

vote-as-a-privilege hypothesis, Iceland’s and Australia’s

implementation of grandfather clauses for previously enfranchised

resident aliens suggest that, at a minimum, states are reluctant to

abridge voting privileges.

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David C. Earnest

Hypothesized Explanations for Alien Suffrage Rights

Legal scholars who have explored the expansion of voting rights

for resident aliens have proffered a number of explanations for

variations in such rights. The common variables to their analyses are

levels of immigration and associated xenophobic backlashes; the

historical and legal evolution of national conceptions of both

citizenship and of voting rights; and, in Raskin’s (1993) words,

“evolving international norms of community based democracy and human

rights” (p. 1394). In this respect, the hypothesized causes of alien

suffrage range from historical path-dependent processes to national

institutions and international norms. While I derive explicit

hypotheses in another study (Earnest, forthcoming), it is worth

previewing that discussion by exploring what a number of researchers

have written about the cases this paper presents.

Alien suffrage rights are inescapably embedded in a broader

institutional and legal framework of general voting rights. For this

reason, franchise opportunities for resident aliens in many countries

evolve as other electoral institutions and franchise rights change.

Harper-Ho (2000) and Raskin (1993) both explain the variation over time

of alien suffrage in the United States as a product in part of broader

debates about the gender, race and property requirements for voter

eligibility. In a comparison of the recent alien voting rights

successes in the United States to the failed initiatives in the Federal

Republic of Germany, Neuman (1992) explains the differences in part by

citing historically divergent conceptions of citizenship and democratic

legitimacy. Unlike in the United States, the courts in Germany have

historically viewed the right to vote as a collective, rather than

individual, right. This right is historically tied, furthermore, to a

historical conception of German nationality as an ethnic construct; the

right to vote is not only a collective right of the nation, it is a

collective right of the German nation (Neuman 1992, p. 283-287).20 The

absence of alien suffrage rights in Germany

. . . reflects the particular historical development of

nationhood in Germany, where the rise of a linguistic and

cultural nationalism at the beginning of the nineteenth century

led to an emphasis on nationality rather than residence as a

crucial factor in defining a polity. (Neuman 1992, p. 291)

A historically exclusive conception of the nation proscribes resident

alien voting in the German case. The franchise rights of resident

aliens therefore depend upon not only the franchise rights of other

members of the polity, but on historically contingent constructions of

the polity itself.

Scholars also cite changes in the size and composition of

immigration, and the corresponding social backlashes, to explain

20 This argument is similar to Rogers Brubaker’s explanation (1992) of

the differences in the naturalization rates of France and Germany.

Brubaker argues the greater naturalization rates in France reflect the

different “cultural definitions of citizenship” embedded in the

competing legal traditions of jus soli in France (citizenship by birth)

and jus sanguinis in Germany (citizenship by decent or ancestry).

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David C. Earnest

variations in the voting rights of resident aliens. Harper-Ho (2000,

pp. 282-283) attributes the end of alien suffrage in the United States

in the 1920s to both the shift in the ethnicity of the immigrant

population (from northern European to southern European and Asian

nationalities) and to the xenophobic backlash that followed World War

I. Raskin (1993, pp. 1415-1416) comes to a similar conclusion. The

absolute level of immigration, independent of its ethnic composition,

may also explain the variations among the states that offer resident

aliens the vote. Neuman (1992, p. 264) for one argues that the

expansion of alien suffrage is inversely related to the level of

immigration. Those European states that have expanded the rights are

those with lower proportions of resident aliens, while those states

with the highest proportion of resident immigrants—-including France,

the United Kingdom, Belgium and Germany—-have either discriminatory or

no voting rights whatsoever for their resident aliens.21

Finally, these scholars also cite the importance of international

variables as well. Neuman argues that “as the interdependence of

national economies deepens and regional ‘common market’ arrangements

multiply, more nations (including the United States) may be called upon

to rethink the question of alien suffrage” (Neuman 1992, p. 261).

Similarly Raskin (1993, p. 1394) cites “evolving international norms of

community based democracy and human rights” as one explanation for the

emergence of resident-alien voting rights in several American

municipalities. He thus sees alien suffrage as local response to

transnational processes and emerging global norms: “the unification of

national economies into a global market system at the end of this

century undermines the salience of national identity and increases the

historical importance of defining a citizenship of place and locality”

(Raskin 1993, p. 1456). He calls this redefined citizenship a “polity

of presence” (p. 1393). Such a radical redefinition of basic concepts

like citizenship and the body politic may result from the

deterritorializing impact of modern global trading relationships, in

which labor and capital migrate unhindered across national borders but

political and social rights do not. The “straitjacket of nation-state

citizenship” is incapable, Raskin argues (p. 1458), of accommodating

the fundamental political rights of those who participate in and

sustain these widening transnational processes. In this respect,

emerging global norms of community-based democracy encourage

municipalities and localities to enfranchise resident aliens. The

globalization of the marketplace may have created a localized response

that is transforming traditional conceptions of citizenship,

participatory government, and democratic legitimacy.

These hypothesized explanations for alien suffrage are complex

and somewhat contradictory. Raskin cites emerging global norms for

community-based participatory democracy, while Harper-Ho and Neuman

cite xenophobia to explain the curtailment of resident-alien voting

rights. It is unclear, however, if and when global norms of

participatory democracy will override popular backlash to immigration.

Similarly, Neuman cites different historical traditions of citizenship

to explain variations in alien suffrage. Again, it is not clear under

what conditions national institutions or historical conceptions of

21 The migration data for each of these states cast doubt upon Neuman’s

argument, however. See footnote 14.

Noncitizen Voting Rights: A Survey--Page 23

David C. Earnest

citizenship rights will yield to emerging global norms. Not all

municipalities within federal states respond to these norms in the same

way, furthermore. Given the same institutional legacies and

conceptions of citizenship, why have some municipalities in the United

States, or cantons in Switzerland and provinces in Canada, enfranchised

resident aliens while others have not? Clearly, the global norms of

community-based democracy that Raskin identifies, or historical

conceptions of the nation that Neuman identifies, are not sufficient to

create resident-alien voting rights. Other factors must explain the

wide variation among the states this study has discussed. These

questions demonstrate the need to consider what other scholars

have written about the state’s incorporation of its migrant population.

In another study (Earnest, forthcoming) I undertake such a

consideration of the hypothesized causes of variation in the state’s

treatment of resident aliens.

Conclusions: Challenges to Future Research

Table 1 lists the democracies around the globe that either have

some form of voting rights for resident aliens, or have considered

extending such rights but have failed to do so. These cases represent

about one in four of the world’s democracies. Yet those democracies

that do extend voting rights to resident aliens vary considerably in

both the scope and scale of those rights.

Given this variability among the states that enfranchise resident

aliens, and given the limited number of observations, it is unclear

whether or not a single model can explain all the variation among the

cases. There are a number of possible research strategies. One is to

conduct a comparative analysis of a smaller set of states, perhaps the

twelve European Union states (plus two candidate states, Estonia and

Latvia) that either allow resident aliens to vote or have rejected such

measures. Such a comparative case-study design would allow the

researcher to control for some variables, such as the role of Article

19(1) of the Treaty of Amsterdam. It would also allow variation in the

type of voting rights states grant since, using the typology developed

in this study, the EU member states represent three of the models of

resident-alien voting rights (discriminatory local, discriminatory

national, and nondiscriminatory local rights). With so few

observations, however, such a comparative design cannot test

statistically the number of divergent hypotheses that nationalist and

postnationalist scholars put forth. A case-study design also raises

difficult questions about the selection of cases. Given the number of

dimensions along which the states that enfranchise resident aliens

vary, it is unclear which cases (if any) are representative of the

universe of cases.

An alternative design would address the universe of democracies

to test hypotheses. While such an approach would have greater degrees

of freedom, it faces the challenge of explaining such wide variation

among cases. Since it is unclear that one explanation will suffice for

all cases, such a broad approach risks creating a “patchwork”

explanation that lacks any theoretical import. In these respects, the

choice of the states to examine seems to be a difficult one between

Page 24--Noncitizen Voting Rights: A Survey

David C. Earnest

Table 1 A list of states that allow or have considered voting rights

for resident aliens.

general but valid findings, and specific findings that may not be

reliable due to the degrees-of-freedom problem.

A second challenge is that of measuring the voting rights of

resident aliens in a given state. Does the typology developed in this

study accurately capture the differences in resident-alien voting

State

Allows

resident

aliens to

vote?

Localities,

local or

national rights?

Nationality requirement?

Australia Rescinded

January 1984 National British Citizenship

Barbados Yes National Commonwealth citizenship

Belgium No - —

Belize Yes Local None

Bolivia Yes Constitutional —

Canada Yes Localities

Commonwealth citizenship;

provinces only

Chile Yes National None

Colombia Yes Constitutional —

Denmark Yes Local None

Estonia Yes Local Russian-speaking minority

Finland Yes Local None

France No - —

Germany No - —

Hungary Yes Local None

Iceland Yes Local

Grandfathered rights from

1920 constitution;

current law requires

citizenship

Ireland Yes Local/National

Only British citizens

allowed to vote in

national elections

Israel Yes Local Qualification tied to Law

of Return

Italy No - -

Japan No - -

Latvia No - -

Netherlands Yes Local None

New Zealand Yes National None

Norway Yes Local None

Portugal Yes Local/National

Only Brazilians allowed

to vote in national

elections

Spain Yes Local None

Sweden Yes Local None

Switzerland Yes Localities None

UK Yes National Commonwealth citizenship

United States Yes Localities

Municipalities only;

previous states’ rights

rescinded

Uruguay Yes National None

Venezuela Yes Local None

Noncitizen Voting Rights: A Survey--Page 25

David C. Earnest

rights between the states it identifies? It may not, given a number of

states that seem to defy easy classification. One might argue that

Chile is an example of nondiscriminatory national voting rights, for

example, though I have argued otherwise. Another important question is

whether or not the de jure constitutional provisions of some states

create de facto rights for resident aliens. The cases of Venezuela and

Uruguay most explicitly raise this issue. A related question is the

number of resident aliens who actually vote in each state, data that is

difficult to find. Despite these concerns, however, I argue in

another study that a ranking of the subject states on the criteria of

scope and scale of voting rights is a reasonable measure of the

national or postnational citizenship practices of a state.

A third challenge is the likelihood of omitted cases. As this

paper noted earlier, the list of states presented here may not be

exhaustive. It undoubtedly is difficult to find evidence of states

choosing not to pursue a policy of enfranchising resident aliens. Yet

more negative observations (indeed any observations) will help obviate

the degrees-of-freedom problems associated with small-n studies.

The surprising number of states that allow resident aliens to

vote suggests, however, that such a study is overdue. The history of

suffrage movements shows that citizens and states rarely extend voting

rights in the absence of social unrest, war, and agitation by excluded

social groups. Alien suffrage has occurred, by contrast, with

relatively little violence. This is perhaps the most provocative of

the many questions this empirical overview has raised. While I have

posed several questions about the democratic practice of enfranchising

aliens, however, I have left them unanswered. In another study I begin

a systematic undertaking of an investigation of these questions by

deriving hypotheses from what might be called the “nationalist” and

“postnationalist” literature. The nationalist thesis explains these

variations as a product of traditional politics within the state, and

asserts that such practices only reinforce the traditional relationship

between the polity and the state. The postnationalist thesis argues,

by contrast, that international and transnational factors explain

variations in the incorporation of migrant communities in democratic

states. Postnationalists cite the growth of practices such as plural

nationality as evidence of a separation of the polity from traditional,

nation-based conceptions of the political community. They expect a

convergence of democratic practice around a common set of inclusive,

nondiscriminatory principles and norms, if not a common institutional

design. Informing these hypotheses is a shared commitment to a basic

question: why do states vary in their policies and practices for the

incorporation of resident aliens? As this survey has shown, the

variation among those democracies that enfranchise resident aliens is

no exception. A key task for nationalists and postnationalists is to

explain not only the surprising number of states that allow their

resident aliens to vote, but the surprisingly different ways in which

they do so.

Page 26--Noncitizen Voting Rights: A Survey

David C. Earnest

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Donald Galloway

The Dominion of Canada came into being in 1867, when the United Kingdom Parliament united pre-existing colonies by enacting the British North America Act 1867,1 since renamed as the Constitution Act 1867.2 This statute divides legislative authority over specified subject matters between the Parliament of Canada and the provincial legislatures. Section 91(25) grants to Parliament authority over ‘Naturalization and Aliens’, while section 95 grants concurrent authority over immigration to both the federal and provincial legislatures. However, this latter section also provides that provincial law on immigration will be operative only as long as it is not repugnant to federal law. Over the years, the test of how to determine repugnancy has changed and is, to this day, somewhat controversial.

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Atsushi Kondo

Every country has its own unique history of migration policy and a specific context within which migration has taken place. For example, some countries have had colonies (Japan, France, UK and the Netherlands) and some countries have themselves been colonies (Australia, New Zealand and the USA). In the past some countries have been emigration states (Japan, Germany, Sweden and the UK). In recent times, we can classify states into classical immigration states (Australia, New Zealand, Canada and the USA),1 European immigration states (France, the UK, Sweden, the Netherlands and Germany) and states with only modest levels of immigration (Japan). Table 11.1 shows the size of the foreign populations and foreign-born populations in the countries analysed in this book. Generally, foreign populations and foreign-born populations grew in the 1990s except in the Netherlands, where the foreign population fell due to high rates of acquisition of citizenship after the amendment of the administration of naturalisation practice.

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Legal Aliens, Local Citizens: The Historical, Constitutional and Theoretical Meanings of Alien Suffrage

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In this Article, I will argue that the current blanket exclusion of noncitizens from the ballot is neither constitutionally required nor historically normal. Moreover, the disenfranchisement of aliens at the local level is vulnerable to deep theoretical objections since resident aliens-who are governed, taxed, and often drafted just like citizens-have a strong democratic claim to being considered members, indeed citizens, of their local communities. Although democratic theory cannot resolve the foundational political question of who belongs to "the people," the ideological traditions of both liberalism and republicanism make available compelling arguments for the inclusion of noncitizens as voters in local elections. The bedrock hostility of the liberal rights tradition to taxation and governance without representation makes noncitizen voting a logically unassailable, if not clearly mandatory, democratic practice. Republicanism presents a somewhat more complicated picture given its historic compatibility with exclusionary practices, but a progressive commitment to dialogic politics and the constitutive value of participation is arguably vindicated by defining universal suffrage without regard to nation-state citizenship. These arguments are deepened by evolving international norms of community-based democracy and human rights and strengthened by important instrumental considerations relating to the surge in immigration which the United States is currently experiencing.Part I sketches the role alien suffrage has played in American history. Part II provides a constitutional analysis concluding that state enfranchisement of noncitizens is neither forbidden by the Constitution, as is commonly assumed, nor compelled by it, as wasargued by Gerald Rosberg in an important article published in 1977. Part III presents the normative argument for reviving alien suffrage at the local level. Part IV canvasses the current status of noncitizen voting in the United States and describes in some detail the experience of the City of Takoma Park, Maryland, which in 1992 became the first American municipality in decades to amend its charter specifically to extend the franchise to noncitizens in local elections.

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