The debate over the Save America Act and its citizenship verification requirements for voter registration has focused almost entirely on preventing non-citizens from voting illegally. But Bradley Smith, chairman of the Institute for Free Speech, former Federal Election Commission member, and Blackmun-Nolte Professor of Law at Capital University, told Dan Proft on Chicago’s Morning Answer that a more fundamental and largely undiscussed constitutional vulnerability exists that the Save America Act does not address at all: nothing in the Constitution as currently written prevents states from simply legalizing non-citizen voting, and if they do, federal law almost certainly cannot stop it.
The argument Smith laid out in a recent Wall Street Journal piece turns on a specific clause in Article One of the Constitution, which provides that the electors in each state shall have the same qualifications as the electors for the most numerous branch of the state legislature. The practical consequence of that language is that if a state legislature decides to allow non-citizens, including undocumented immigrants, to vote in state elections, those same people would constitutionally be entitled to vote in congressional elections as well. Congress has passed a statute prohibiting non-citizens from voting in federal elections, but Smith argued that statute is likely unconstitutional on its face because it conflicts with a constitutional provision that expressly delegates qualification-setting authority to the states. He said the Supreme Court affirmed the states’ authority to set voter qualifications unanimously in a case called Inter Tribal Council v. Arizona decided roughly a dozen years ago, and that a constitutional challenge to the federal prohibition would be serious and potentially successful.
Proft raised the question of federal supremacy, noting that federal statute normally overrides conflicting state law. Smith said the relevant distinction is that federal statutes can override state laws but cannot override the Constitution itself, and the qualification language in Article One is the Constitution speaking directly. That is precisely what makes the vulnerability so significant and so different from the illegal voting problem the Save America Act targets.
The immediate practical threat is limited because most states currently prohibit non-citizen voting either by statute or by state constitutional provision. Smith noted that Illinois and Ohio are in the minority in making the prohibition a state constitutional provision rather than merely a statutory one, meaning that in most states the barrier to non-citizen voting could be removed by a simple legislative majority rather than requiring the higher threshold of a state constitutional amendment. In super-majority blue states like California, New York, and Massachusetts, where the statutory prohibition could theoretically be repealed without significant political resistance, the path to legalizing non-citizen voting at the state level would be relatively straightforward, after which federal election participation would follow constitutionally.
Smith also raised the Overton window dimension of the issue, noting that efforts to allow non-citizen voting in local elections have already succeeded in a number of municipalities, including attempted efforts in Evanston and Chicago in Illinois. He said the incremental normalization strategy is deliberate: introduce non-citizen voting at the most local level, let people become accustomed to the concept, and over time what once seemed outrageous begins to seem unremarkable. He argued that the time to constitutionally enshrine the principle that only citizens vote is now, while polling shows something approaching eighty to ninety percent agreement across party lines on the question, rather than waiting until the political consensus has been gradually eroded.
The proposed constitutional amendment working through Congress, introduced by Representative Greg Steube of Florida, would address the issue at the level where it ultimately needs to be addressed. Smith noted that the amendment as proposed would be ratified not through state legislatures but through state conventions, a mechanism that sounds alarming to some conservatives worried about a runaway convention process but which in practice functions simply as a popular vote in each state, comparable to voting for presidential electors, with delegates pledged in advance to either support or oppose the amendment. He said polling suggesting eighty to ninety percent public support for restricting voting to citizens makes this exactly the kind of amendment the convention ratification process is suited for, and that passing it would demonstrate that the political system can in fact reach common ground on a question that Democrats routinely claim to agree with in principle while opposing in every specific legislative vehicle.
On the Swalwell campaign finance question, Smith said the FEC has in recent years begun allowing candidates to use campaign funds for childcare expenses in certain circumstances, a development he described as a mistake that blurs the line between campaign funds, which exist specifically to fund campaign activities and are therefore not considered personal gifts or bribes, and personal financial benefit. He said reimbursing oneself for alleged out-of-pocket childcare expenses is more troubling than direct payment and would require close scrutiny of documentation and whether the expenses fit within any category the FEC has actually approved, but acknowledged that without the specific details it is premature to declare a clear violation. He noted, with some understatement, that Swalwell has a great many other problems to contend with at the moment.