The Immigrant Voting Project and
New York University Law Students for Human Rights
 

Resident Noncitizen Voting in Virginia:
A History

The Virginia Bill of Rights of June 12, 1776 declared that “all men, having sufficient evidence of permanent common interest with, and attachment to, the community, have the right of suffrage.”  However, although the general right to suffrage was proclaimed broadly, the Constitution went on to state that the right to vote for members of the General Assembly would remain “as exercised at present,” meaning, in effect, that only white males who owned a specified amount of land were permitted to vote.[1] 

Although Virginia limited suffrage by Constitution and statute, on the basis of gender, race, and property ownership, the early state did not require that voters be citizens of the United States.  The language of the Virginia Constitution of 1830 specified that voters had to be “citizens of the commonwealth.”[2]  However, citizenship of the “commonwealth” of Virginia extended to non-citizens of the United States who had migrated to Virginia and declared on oath both an intention to reside therein and fidelity to the commonwealth.[3]  According to Gerald Neuman, Virginia’s laws allowed for the naturalization and enfranchisement of aliens as state citizens until the 1840s.[4]  The state laws were amended in 1848 to bring Virginia’s state citizenship laws in line with federal citizenship laws, but even then, those non-citizens of the United States who had already gained state citizenship were allowed to retain it.[5] 

It was not until Virginia’s Reconstruction-era Constitution of 1870 that United States citizenship, rather than citizenship in the state, became an explicit constitutional requirement for suffrage.  The emphasis on United States citizenship coincided with Virginia’s readmission to the United States after the Civil War.  The change in language was part of the enfranchisement of former slaves contained in the new state Constitution, reflecting Virginia’s ratification of the Reconstruction Amendments to the United States Constitution, a requirement for readmission to the country.[6]  

In the years following the 1870 Constitution, Virginia attempted to restrict the franchise that had just been bestowed on former slaves.  The 1870 Constitution had been drafted at a Convention dominated by radical Republicans, many of them “Northerners or from other countries,” and many white Virginians found the new, more inclusive suffrage provisions unsatisfactory.[7]  In 1876, the Constitution was amended to create a poll tax, which was then repealed in 1882, after it led to widespread vote buying and fraud.[8]  Then, in 1901-1902, a new Constitutional Convention was called.  Delegates to the convention openly declared their hostility to both black voters and foreigners; one stated that his mission was to “strike from the suffrage the alien and the enemy in Eastern Virginia and at the same time leave untouched the worthy but illiterate Anglo-Saxon.”[9]  The Constitution of 1902 restricted the franchise by increasing the length of the state residency requirement, adding minor crimes to the list of voting disqualifications, instituting a poll tax, and providing for a voter registration process, which was administered to exclude unwanted prospective voters by requiring them to explain obscure provisions of the Constitution.[10]

Virginia did not begin to expand its franchise significantly beyond late-19^th century levels until the Second World War era, when soldiers and veterans pressured the state to ease registration requirements. [11]  Virginia’s current Constitution, adopted in 1971 following the Voting Rights Act of 1965 and other federal developments, bestows broader suffrage.  The current Constitution retains the language of Virginia’s original Bill of Rights, stating that suffrage belongs to “all men having sufficient evidence of permanent common interest with, and attachment to, the community.”[12]  Taken alone, this requirement could be read to include permanent residents.  However, the Constitution goes on to stipulate that:

“In elections by the people, the qualifications of voters shall be as follows: Each voter shall be a citizen of the United States, shall be eighteen years of age, shall fulfill the residence requirements set forth in this section, and shall be registered to vote pursuant to this article. No person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor or other appropriate authority. As prescribed by law, no person adjudicated to be mentally incompetent shall be qualified to vote until his competency has been reestablished.”[13]

The Virginia electoral laws refer to the state constitutional provisions, stating that, “‘Qualified voter’ means a person who is entitled to vote pursuant to the Constitution of Virginia and who is (i) 18 years of age, (ii) a resident of the Commonwealth and of the precinct in which he offers to vote, and (iii) registered to vote.”[14]

Despite the continued state constitutional restrictions on non-citizen voting, there has been some movement toward non-citizen participation at the local level. 

Although the current state Constitution prohibits non-citizen voting in government-run elections, in at least one instance, a political organization allowed non-citizens to vote in a local primary.  During a firehouse primary sponsored by Arlingtonians for a Better County (ABC) in 1994, non-citizen residents of Arlington participated in voting to decide who would appear as the ABC candidate on the general election ballot.[15]  Following the widely-publicized adoption of local non-citizen voting in Takoma Park, Maryland, civic groups in Virginia have also expressed interest in changing the law to extend local voting rights to non-citizen residents.[16]

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