A proposed amendment to the Texas Constitution to explicitly prohibit people who are not U.S. citizens from voting in the state failed when a group of Democrats withheld their support, but advocates for the measure say they are not giving up.
The amendment — proposed by Sen. Brian Birdwell (R-Granbury) in the form of Senate Joint Resolution 35 — made it through the Senate with the backing of Democrat coauthor Jose Menendez of San Antonio in a 29 to 1 vote. In the House, however, 54 Democrats voted “present” instead of giving an up or down vote to the joint resolution.
Although 88 members of the House voted yes and none voted no, the bill still failed. The amendment needed 100 votes out of the 150 available in the House in order to pass and be presented on a statewide ballot as a public referendum.
This debate concerning who can vote in elections — whether local, statewide, or national — is occurring as the Biden administration prepares for what is anticipated to be the largest surge of unlawful migrants the country has ever seen.
Beginning in June, the Department of Homeland Security’s CBP One program — which self-identified asylum seekers use to schedule a lawful border crossing appointment — will facilitate nearly 40,000 entries every month.
As demographics across the country have shifted to include more non-citizens, some states are permitting municipalities to create their own voter qualification laws that do not necessarily require U.S. citizenship.
Washington, D.C., and the states of California, Maryland, and Vermont currently allow persons who are not citizens to vote in municipal elections.
In a George Washington Law Review article called “The Right to Vote Under Local Law,” law professor Joshua A. Douglas explained what makes it possible for persons who are not citizens to vote in these states.
“Municipalities can expand voting rights in local elections if there are no explicit state constitutional or legislative impediments and so long as local jurisdictions have the power of home rule,” he wrote.
“Home rule” is the delegation of certain powers to local control — in this case the power over local elections.
Chris Arps, the president of Americans for Citizens Voting (ACV), recently spoke with The Dallas Express regarding SJR 35 and noted that more states are using the doctrine of home rule to expand voting rights to persons who are not citizens. ACV is a nonprofit that advocates for citizenship as a requirement to vote.
Arps said an amendment to the Texas Constitution would prevent local activist district attorneys from using home rule laws to ignore any statewide statutes currently on the books regarding what qualifies a person to vote in local elections.
“Any city [in Texas] with a population of more than 5,000 may adopt a home rule charter,” he said.
And although the Texas Constitution says in Article IV, Section 2, that anyone “who is a citizen of the United States and who is a resident of this State shall be deemed a qualified voter,” Arps points out that the clause is open to being interpreted as not a “limiter on who can vote or a floor on who can vote.”
Arps noted that the amendment would bolster the ability of the Texas Office of the Attorney General to enforce a statewide ban on voting by persons who are not citizens. Predicting a ban would inevitably be challenged in court by local activist DAs, he acknowledged that the amendment is, in many ways, a preemptive move.
Arps explained that an amendment passed through a referendum could not be changed by the whims of the legislature and would have to be put to another vote by the people.
“If Texans want noncitizens to vote, they should work on that,” he added.
Advocates of voting by persons who are not citizens cite as a precedent historical instances in which the practice has been allowed and note that the explicit banning of voting by persons who are not citizens in federal elections did not happen until 1996, as noted by the Center for Public Integrity. They argue that these persons pay taxes and contribute in other ways to their communities, and preventing them from having a say in elections is a form of discrimination.
Arps disagrees, asking, “If I go to another city and stay at a hotel, I pay hotel taxes, and if I eat at a restaurant there I pay restaurant taxes. Does that mean I should be able to vote in that city? Of course not.”
Arps and other backers of the amendment hope to get Gov. Greg Abbott to add it to the agenda of a special session of the legislature. Whether that initiative will be successful remains unclear, but Abbott has indicated that more special sessions are likely in store as multiple legislative priorities remain unfulfilled.
