The Trump administration is pressing to remove noncitizens from voter rolls across the country. Yet an important question seems to be missing from the debate: Where, exactly, does the federal government get the authority to impose a citizenship requirement on federal elections? The Constitution does not make citizenship a universal qualification for voting. Instead, Article I, Section 2, Clause 1 states: “The Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” At the same time, Article I, Section 4, Clause 1 explicitly grants Congress authority over the conduct of federal elections: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” In Arizona v. Inter Tribal Council of Arizona, Inc. (2013), the U.S. Supreme Court distinguished Congress’s power to regulate how federal elections are conducted from the states’ authority to determine voter qualifications, explaining that Congress may regulate the “Times, Places and Manner” of elections, “but not who may vote in them.” For much of American history, noncitizens voted in elections in at least 22 states and territories, and some historical research suggests the number may have been as high as 40. Today, certain noncitizens are still permitted to vote in local elections in California, Maryland, Vermont and the District of Columbia. If the Constitution leaves voter qualifications to the states, what gives the federal government the authority to demand otherwise?
A Long History of State Decisions
Noncitizen voting is not a recent idea or an unprecedented departure from American practice. From the colonial period through the nineteenth and early twentieth centuries, many states and territories permitted at least some noncitizens to vote. The rules varied considerably. Some jurisdictions allowed immigrants who had declared their intention to become U.S. citizens to vote, while others adopted broader rules for eligible residents. Because voter qualifications for federal elections generally followed those established for elections to a state's legislature, these state decisions also permitted noncitizens to vote in elections for members of Congress and, in some states, presidential electors.
Over time, states reconsidered these policies. Rising nativism, wartime hostility toward immigrants and concerns about election practices contributed to the gradual elimination of noncitizen voting. The 1924 presidential election was the last in which noncitizens legally voted for president in states that still permitted the practice. Arkansas, the last state to retain noncitizen voting, ended it in 1926. By then, citizenship had become a voting requirement in every state.
The significance of this history is not that states must allow noncitizens to vote today. It is that the change occurred through state action. State governments gradually decided to restrict voting to citizens, and the practice disappeared as those states changed their laws. The historical record therefore provides an important context for examining what happened when Congress later enacted a nationwide prohibition.
The Federal Government Enters the Picture
The history of noncitizen voting took a significant turn in 1996, when Congress enacted a broad immigration-enforcement law. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 addressed a wide range of immigration issues, from border enforcement to deportation procedures. Among its many provisions was Section 216, which added Section 611 to Title 18 of the U.S. Code. Although the provision received little separate attention in the legislative record, it imposed a nationwide federal criminal prohibition on noncitizen voting in federal elections.
Section 611, now codified at 18 U.S.C. § 611, makes it unlawful for noncitizens to vote for president, presidential electors, U.S. senators, U.S. representatives and certain other federal offices, subject to limited exceptions. By 1996, state action had already ended noncitizen voting in federal elections decades earlier. Congress did not simply follow a new wave of state decisions. It established a nationwide federal criminal prohibition on an issue that, under the constitutional framework described above, raises a fundamental question about the division of authority between the states and the federal government.
Does the Constitution Give Congress That Authority?
Article I, Section 2 and the Seventeenth Amendment establish that voter qualifications for elections to the House of Representatives and the Senate follow those required for electors of the most numerous branch of each state's legislature. Article II, Section 1, Clause 2 separately provides that each state appoints its presidential electors in the manner its legislature directs. These provisions leave the states with significant responsibility for determining voter qualifications.
The Supreme Court's reasoning in Arizona v. Inter Tribal Council of Arizona, Inc. reinforces the distinction between Congress's power to regulate election procedures and the states' authority to determine who is qualified to vote. The Court explained that Congress's Elections Clause authority concerns how federal elections are held, “but not who may vote in them.” The case concerned Arizona's proof-of-citizenship requirement for voter registration; it did not decide the constitutionality of Section 611. Nevertheless, its explanation of the constitutional division of authority is directly relevant to the question raised here.
Congress has substantial constitutional powers, including authority over naturalization and the regulation of federal elections. But the existence of those powers does not automatically establish that Congress may impose a uniform citizenship qualification on voters in elections administered by the states. A law regulating registration procedures, ballot handling or election administration is not necessarily the same as a law defining who is eligible to vote.
There is also relevant precedent that deserves consideration. In Oregon v. Mitchell (1970), the Supreme Court considered congressional authority to set voting-age rules for federal elections, and the justices disagreed about the scope of that authority. The decision illustrates the complexity of the relationship between federal power and state control of voter qualifications. It does not, however, resolve the specific question of whether Congress may criminalize noncitizen voting through Section 611.
My argument is that Section 611 crosses a constitutional boundary. The Constitution expressly gives Congress authority to regulate the conduct of federal elections, while its provisions governing voter qualifications assign a central role to the states. If Congress can establish a voter qualification simply by attaching a federal criminal penalty to it, the distinction between regulating elections and deciding who may vote becomes difficult to maintain.
Citizenship may be a widely accepted qualification for voting today. But the popularity or soundness of a policy does not, by itself, answer the constitutional question of which level of government has the authority to impose it. The question is not whether states may decide that only citizens should vote. The question is whether Congress has the constitutional authority to impose that rule nationally through Section 611.
A Constitutional Question Now Before the Courts
This issue is no longer merely theoretical. The Trump administration has sought to use federal databases to identify noncitizens on voter rolls, prompting legal challenges over federal authority, voter privacy, the accuracy of citizenship-verification systems and the role of states in administering elections. These disputes raise related questions about federal involvement in election administration, but they should not be confused with the separate question of whether Section 611 itself is constitutional.
Several recent federal prosecutions have directly challenged Section 611. According to a September 15, 2026, Reuters report, defendants in cases in Miami, Florida, and Madison, Wisconsin, argued that the 1996 law exceeds Congress's constitutional authority because voter qualifications are reserved to the states.
On October 1, U.S. District Judge David Leibowitz dismissed the case against Chelsea Cox, ruling that Section 611 was unconstitutional. His ruling applies to that case and is not binding on other judges. In a separate Miami prosecution, Judge Jacqueline Becerra rejected Wilner Renaud's constitutional challenge on September 9. These proceedings have produced differing judicial responses, demonstrating that the constitutional question remains contested. The Supreme Court has not issued a definitive decision resolving the constitutionality of Section 611 itself.
These cases matter because they address the central issue directly: whether Congress has the authority to impose a nationwide criminal prohibition on noncitizen voting in federal elections. The courts must consider not only the government's objectives but also the constitutional limits on its power.
Who Deserves a Voice in the Community?
Beyond the constitutional question lies a broader democratic principle: What does it mean for people to have a voice in the communities they share?
Benjamin Franklin once wrote, “They who have no voice nor vote in the electing of representatives do not enjoy liberty.” Political scientist Ron Hayduk has made a related argument for noncitizen voting, writing that extending the right to vote to noncitizens would help make government representative, responsive and accountable.
Noncitizens who live in our communities are subject to local laws and decisions, contribute to their communities and often pay taxes. Allowing eligible noncitizens to vote in certain local elections can recognize their stake in the community and give them a voice in decisions affecting their daily lives. It does not make them citizens; it recognizes that people who are governed by a community have a legitimate interest in how that community is governed.
I believe Section 611 will ultimately be declared unconstitutional, creating an opportunity for each state to decide whether noncitizens should be permitted to vote and, if so, in which elections, subject to the Constitution and other applicable laws. This should not be a source of division. Instead, it offers an opportunity for people across the political spectrum to come together, discuss who should have a voice in the communities they share, and consider how our democratic institutions can better serve everyone.
We may disagree about where to draw the boundaries of voting rights, but we can share a commitment to a democracy that listens, includes and brings people together. This is an opportunity not simply to reconsider who can vote, but to strengthen our democracy by making it work for everybody.
Michael A. Soderstrand is a retired professor of Electrical and Computer Engineering and currently lives in Columbus, Ohio.
