Idaho has a constitutional amendment on the ballot about noncitizen voting

What this episode covers

In the past few weeks, we’ve been doing a lot of reporting on Proposition One - the citizens initiative that would open Idaho's primaries and establish a ranked choice voting system in Idaho. But there’s another statewide question on the ballot this year and it has to do with whether non-citizens should be allowed to vote in Idaho. You’ll see it on the ballot labeled as “Proposed Idaho Constitutional Amendment SJR 102” and here to help break it down for Idaho Matters is McKay Cunningham, constitutional scholar and graduate professor at the College of Idaho. Read the full transcript below. GAUDETTE: More Idaho Matters now from the studios of Boise State Public Radio News. I'm Gemma Gaudette. In the past few weeks, we've been doing a lot of reporting on proposition one. This is the citizen's initiative that would open Idaho's primaries and also establish a ranked choice voting system here in Idaho. However, there is another statewide question on the ballot this year. It has to do with whether non-citizens should be allowed to vote in Idaho. Now you will see it on the ballot labeled as proposed Idaho Constitutional Amendment, SJR 102. And here to help break it down for us today is McKay Cunningham, constitutional scholar and graduate professor at the College of Idaho. Mckay. Nice to have you back on the program. CUNNINGHAM: Hi, Gemma. Nice to be here. GAUDETTE: So, McKay, tell us about the amendment. What exactly would it do? CUNNINGHAM: It's a pretty simple amendment. It's just one sentence to be added to Idaho's constitution, and it would essentially make certain that non-citizens cannot vote in an election here in Idaho. GAUDETTE: Okay. This is the part that that confuses me as to why this is even on the ballot. And that is. Isn't this already in Idaho's constitution? I mean, what's the difference between what's now in our state constitution and what is in this amendment? CUNNINGHAM: Yeah, that's a great point. Yes. It's all I mean, non-citizens are already barred from voting in Idaho as our Constitution stands today without this proposed language. And so a lot of opponents are questioning why we need to do this. If the law, even in our Constitution, already prohibits non-citizens from voting. Um, one of the arguments that the proponents have put forward is that we need to clarify or to be extra direct, and making sure that everyone knows that non-citizens can't vote in Idaho's elections. But I'll read for you if you like what our current constitution states without this amendment as it relates to to non-citizens. It says every male or female citizen of the United States, 18 years old, who's resided in the state, etc., is a qualified elector. So yes, Gemma it's already prohibited in our Constitution already. GAUDETTE: And to clarify, this is also federal law. I mean, non-citizens cannot vote. CUNNINGHAM: Yeah. I mean, I'm glad that you brought that up. Um, there's a federal statute that prohibits non-citizens from voting in federal elections, for example, for the president of the United States. Now that federal statute only prohibits non-citizens from voting in federal elections. In other words, there's nothing in the US Constitution and there's nothing in the federal statutes that prohibits states or local governments from allowing non-citizens to vote. Now, to be clear, every state, all 50 of them, disallow non-citizens to vote in their state elections as well. But one of the things that not a lot of people know is that's not always been the case. I mean, during the 1800s and early 1900s, at least 40 states had provisions in their constitutions specifically allowing non-citizens to vote. Isn't that interesting? In Pennsylvania, for example, their constitution in the 1800s said this, quote, all free men. That's something there to all free men. I mean. GAUDETTE: There there's that. CUNNINGHAM: Mackay having a sufficient evident common interest with and attachment to the community, have a right to elect officers and be elected in office. Alabama had a constitutional provision like that. Massachusetts. Massachusetts. Illinois. Ohio. Lots of states before World War One had constitutional provisions that specifically allowed non-citizens to vote. It's really only since World War One that that has completely flipped. Mhm. GAUDETTE: Okay. I want to look at what supporters and opponents are saying about this constitutional amendment. So according to the Idaho Secretary of State website. Supporters of the amendment say it's needed, quote, because the current language does not expressly prohibit non-citizens from voting, unquote. Can you speak on that a bit more? Because you literally read us the statute and it seems fairly clear. CUNNINGHAM: Yeah, I have trouble with that, quite frankly. Gemma. Um, I guess technically the the Idaho Constitution does not prohibit. It just says the same things, one in an affirmative way and one in a negative way. So what we currently have is an affirmative postulation. It says these people can vote and it says you have to be a citizen to vote. This this proposed constitutional amendment says the same thing but from a negative affect, saying, uh, non-citizens cannot vote in Idaho. So I guess technically, um, there is a difference there, but practically there's not one. The argument Gemma that they have, um, that proponents have forwarded that may have a little more, um, uh, um, uh, justification is that it is true that there are a small number of local governments of cities, typically, that have allowed non-citizens to vote in them, that definitely not in Idaho. Um, but that has occurred in other places in the United States. And so there is an argument that this provision would make it clear that no state here or no city, excuse me, no city or local government within Idaho could change their specific election provisions to allow non-citizens to vote. Um. GAUDETTE: Well, in fact, um, as you mentioned, there are some places that do this. The Idaho Capital Sun actually reported and found that, uh, found that to actually be true in places like Maryland, Vermont and San Francisco. So with supporters wanting to make sure that doesn't happen here in Idaho. Um, again, for clarification, that doesn't happen in Idaho as right now, but is this a growing concern? Mckay. CUNNINGHAM: Well, I don't know if it's a growing concern in Idaho. I mean, Secretary of State Phil McGrane has said it has never occurred in any municipality, any city, any local government, and that Idaho has never even considered allowing non-citizens to vote in any local elections. So I guess the argument is that this proposal would preemptively block any Idaho localities from potentially allowing non-citizens to vote in local elections. I mean, you say, is this a trend? And I think a lot of it stems from the the immigration debate that we are having as a as a country right now. And some of the suggestions that immigrants are are flooding into the country. And so I think this kind of provision, even though practically it will have little consequence, is really, um, uh, forwarded for that kind of a purpose. GAUDETTE: So I want to talk about what opponents of this constitutional amendment are saying. So one of their arguments is, is that, uh, in the state of Idaho, we already have to provide, quote, citizenship and proof of residency, unquote, to register to vote in Idaho. Opponents also say that this amendment would, quote, foreclose any opportunity in the future, unquote, to allow non-citizens to vote in certain elections. So, McKay, can you talk about those two issues as well, in particular, uh, needing to already show proof of citizenship and residency to vote? CUNNINGHAM: Yeah, yeah, for sure. I think opponents are, first of all, saying this is a solution in search of a problem. We already outlaw, um, non-citizens from voting. And to your point or your question about the processes that are put in place, such as voter registration, which requires, upon penalty of perjury, uh, attestation that you are, in fact, a citizen of the United States. Um, Senator McGrane has stressed that Idaho election officials have a lot of processes in place to make sure that only citizens can vote. These processes have been in place for a long time now. They are double checked with regard to the information that we have on individuals through the Department of Motor Vehicles, through Social Security Administration, through the Idaho State Police, and even with interactions with the United States Department of Homeland Security. So, yeah, we already have a prohibition against non-citizens voting, and we already have a very robust system to ensure that that doesn't take place. I mean, the next question is in my mind, like, does it happen? Do we have a lot of non-citizens voting historically, uh, in Idaho? And I haven't seen that data. Again, Secretary of State Phil McGrane and elected republic Republican, has suggested there is a handful of such instances. Um, but that's that's as far as I've been able to tell with regard to what has happened in Idaho. There are some nationwide surveys, one done by the Heritage Foundation, a conservative think tank that said that they found only 77 times that a non-citizen has voted over a four year span. That's from 1999 to 2023. And that was a study done by the Heritage Foundation, all of which to say, um, I don't think that there is a lot of proof or any proof really, that there's widespread voting by by non-citizens. And part of the reason is because you can go to jail and or be deported. Um. GAUDETTE: So, right, right. And we should note that, um, that the Secretary of State did say that, um, in past elections in Idaho, 36 very likely non-citizens are being removed from the rolls this year. Uh, now, Secretary McCrane was on was on our program every Tuesday right now, I believe last week or the week before when this number came up, he did say, well, actually, one person was put back on the voter roll because they are a citizen. So even with that, that is a significantly small number, um, of non-citizens trying to vote in elections. Um, with that, said McKay, several states have a question like this on the ballot to ban non-citizens from voting. So is that a growing trend in the United States? I've got about two minutes left with you. CUNNINGHAM: Yeah, it is a growing trend. I mean, we've heard a lot, um, nationally about the vote being rigged or it cannot be trusted. And I think some of this trend that you're talking about is responsive to that rhetoric of, of our elections being insecure or rigged. Um, those eight states, including Idaho, that are currently considering ballot measures just like Idaho in each of those eight states, it's already illegal for non-citizens to vote. So it's a very similar process that these other eight states, which are Iowa, Kentucky, Missouri, North Carolina, Oklahoma, South Carolina and Wisconsin are going through right now. GAUDETTE: So I want to ask you two more quick questions. This is a constitutional amendment, not a proposition. Does that require more votes to pass in the election or is it still a simple majority? CUNNINGHAM: It's still a simple majority. GAUDETTE: Okay. And finally, if this amendment fails, I want people to understand this. Will this allow non-citizens to vote. CUNNINGHAM: No if this amendment fails? Non-citizens can still no can still not vote in Idaho, either a city or a local or state or federal election. Non-citizens can still not vote even if this proposition fails. GAUDETTE: All right. Really appreciate the conversation about this because, um, you know, just having more understanding of what's on the ballot is always helpful for all of us. So appreciate your time. CUNNINGHAM: Yeah. It's also nice to get a break from proposition one. GAUDETTE: Oh my goodness. Right. Thanks, McKay. We've been speaking with McKay. Cutting with McKay Cunningham, constitutional scholar and graduate professor at the College of Idaho. Talking about the proposed constitutional amendment, which will be on the ballot. The amendment is to keep noncitizens from voting in Idaho. Thanks so much for listening to Idaho Matters. Boise State Public Radio and Idaho Matters are members of the NPR network. It's an independent coalition of public media podcasters. You can find more shows in the network wherever you get your podcasts. I'm Gemma Gaudette. We'll see you tomorrow.