A Supreme Court ruling this week confirmed federal supremacy over U.S. voter-registration procedures, yet it didn't challenge the power of states to set the basic qualifications for being able to vote. Justice Antonin Scalia's majority opinion in Arizona v. Inter Tribal Council of Arizona was as much a reaffirmation of state prerogatives over access to the ballot box as it was of federal power to determine the procedures.
These rules overwhelmingly demand that voters have citizenship. But why should that be the case? Citizenship hasn't always been a requirement to vote in the United States. Nor should it be in the future. The Constitution bars discrimination by states on the basis of race, gender and age. It is mute on citizenship.
Non-citizen voting was once the norm, even in federal elections. At the beginning of the 20th century, as many as 22 states and territories allowed non-citizens to vote not just for local but also for national elections. Non-citizens legally voted in every presidential election until 1924. The practice coincided with an immigrant surge approximating today's.
Opponents of non-citizen voting ignore basic conceptions of self-governance. Non-citizens are directly affected by local government and pay local taxes. Accordingly, they should have the same say as their neighbors in how they are governed. It was on that theory that even undocumented immigrant parents were allowed to vote in New York City school-board elections until the elected board was abolished in 2002.
Nationally, most immigrants are subject to a five-year residency requirement before they can become citizens. By contrast, a U.S. citizen who moves from Alabama to New York is eligible to vote only 30 days later.
What liberal opponents of non-citizen voting seem to be missing is that it would serve their agenda by getting immigrants politically engaged. They should think of it as a gateway right. Once immigrants become more involved at the local level, they will have a greater incentive to seek admission to the national polity.
Some immigrants could naturalize but don't want to because they don't identify as Americans. But they might still identify as Portlanders, Washingtonians, Angelenos; it is possible in a globalized world to decouple local and national membership.
Peter Spiro is the Charles Weiner professor of law at Temple University's Beasley School of Law. He is a former law clerk to Justice David Souter of the U.S. Supreme Court.