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San Francisco passed a law allowing non-citizens to vote in school board elections. Representative Jeff Duncan introduced a bill that would strip all federal funds from any locality that allows non-citizens to vote. From his webpage,

The Eliminating Foreign Intervention in Elections Act has two key components:

  • Empowers the U.S. Census Bureau to collect and publish information on which States or localities have noncitizen voting policies in place.

  • Defunds localities that allow noncitizens to vote in elections for State or local office.

Is this constitutionally allowed?


My research

The constitution has several prohibitions against denying certain people the right to vote. For example the fifteenth amendment "prohibits the federal and state governments from denying a citizen the right to vote based on that citizen's 'race, color, or previous condition of servitude'." wiki

However I can't find any positive statements of who gets the right to vote, or any mention of who decides that. I assume that because the tenth amendment gives the powers not delegated to the federal government to the states or the people, that this is up to the states to decide.

Technically, Duncan's bill doesn't actually prohibit San Francisco from making this law, it just imposes very coercive penalties for doing so. The case of South Dakota v. Dole lays out five criteria for considering if withdrawal of federal funds is unconstitutionally coercive. The last criteria is "The condition must not be coercive." The debate around this fifth criteria seems to center on how much money is being withdrawn. This question might hinge on whether San Francisco gets enough money to count as "irresistable pressure."

I have a somewhat tenuous chain of logic laid out here. Any one of the links could be flat out wrong, or I could be just completely missing the point.

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In National Federation Of Independent Business v. Sebelius, the court addressed the matter of withholding funding, with respect to obligatory expansion of Medicaid, where ACA required states to expand Medicaid coverage, or lose all federal Medicaid funds. The effect, as described in the ruling was "[t]he threatened loss of over 10 percent of a State’s overall budget", which constitutes "economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion", and "The Medicaid expansion thus violates the Constitution by threatening States with the loss of their existing Medicaid funding if they decline to comply with the expansion". A law which withholds more than Medicaid funding would therefore clearly be at least as coercive as ACA.

It is some interest that the ACA ruling put specific comparative numbers on the effect of the highway funding law underlying SD v. Dole, which they decided was "less than a half a percent" of the state budget. In contrast, in the case of Medicaid funding, their estimate was that Medicaid costs are about 20% of a state's budget, and the federal government pays 50%-80% of that. That means, picking low numbers, the effect of withholding Medicaid funding would be about 10% of a state's budget. The line between persuasion and coercion then seems to lie between .5% and 10%.

The presumably introduced bill is here, for reference. The core paragraph is

(a) None of the funds made available in any Act may be used to make payments to any unit of local government that permits individuals who are not citizens of the United States to vote in elections for State or local office.

However, the introductory clause identifies the purpose as being

To prohibit Federal payments to a unit of local government
that allows individuals who are not citizens of the United
States to vote in elections for State or local office, and
for other purposes.

The substantial difference is that propositions are not offices: the bill introduces ambiguity in legislative intent (the words of the statute say one thing, the potentially enforceable sections introduced into US Code say something else). The bill does not define "unit of local government", so we could search for existing definitions of that term. 31 USC 6701: primarily "a county, township, city, or political subdivision of a county, township, or city, that is a unit of general local government as determined by the Secretary of Commerce for general statistical purposes" (I don't think school, fire, hospital and water districts count). Alternatively 42 USC 12746:

a city, town, township, county, parish, village, or other general purpose political subdivision of a State; the Federated States of Micronesia and Palau, the Marshall Islands, or a general purpose political subdivision thereof; a consortium of such political subdivisions recognized by the Secretary [HUD] in accordance with section 12746(2) of this title; and any agency or instrumentality thereof that is established pursuant to legislation and designated by the chief executive to act on behalf of the jurisdiction with regard to provisions of this Act.

To get the desired effect, the sponsor wants the definition in 2 CFR 200.64, which includes school districts (and that chunk is about federal grants, thus apt for the bill). The statutory authority for this interpretation is 31 USC 503.

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    Thanks for a great and quick answer +1. This clearly demonstrates that there is an established precedent for how much is coercive. There are other links in my chain of logic that I still suspect are weak. – BobTheAverage Jul 26 '18 at 0:36

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