Aliens and Equal Protection: Why Not the Right To Vote?

A constitutional right of at least some aliens to vote does not seem to me at all unthinkable. Throughout much of the nineteenth century and part of the twentieth, aliens enjoyed the right to vote in a great many states. The states that extended the franchise to aliens plainly did not believe that they were acting under constitutional compulsion. But given our present understanding of the mission of the equal protection clause, much can now be said in defense of such a constitutional right. My purpose here is to outline the case that might be made for the right of aliens to vote. I should make clear at the outset, however, that this is an area where one must proceed with caution, for the Supreme Court, despite its now numerous incursions into the thicket of politics and voting, has barely begun to construct a framework for analyzing questions concerning the nature of political representation and the definition of a political community. Indeed, the inscrutability of these questions and the sense of unease produced by discussion of them may account for the general reluctance to face squarely the issues raised by alien suffrage.