The history of immigrant voting
rights in California
The Immigrant Voting Project and
New York University Law Students for Human Rights
Resident Noncitizen Voting in California:
California’s first Constitution was adopted in 1849, shortly after the conclusion of the Mexican American War and a year before California attained statehood. Although Congress extended suffrage to aliens in many Western territories during the mid-1800s, aliens in California and other territories acquired during the Mexican American War never received this benefit. The new California Constitution granted suffrage only to white male citizens of the United States and those white male citizens of Mexico who had elected to become U.S. citizens under the treaty ending the war. In addition, the Constitution gave the legislature the option of extending a “special” franchise to Native Americans, who were not generally considered to be U.S. citizens at the time, by a two-thirds vote.
California’s citizenship requirement for suffrage persisted over the years. Less than three decades after it achieved statehood, California convened a new constitutional convention in the midst of the economic downturn of the 1870s. An influx of migrants, from both inside and outside the United States, had arrived in California during the intervening years, drawn by the opportunities of the gold rush and the Central Pacific Railroad construction. Delegates to California’s second constitutional convention, particularly those from the newly formed, nativist Workingmen’s Party, blamed California’s unemployment problem on Chinese immigrants, many of whom had recently returned to California’s cities after completing construction of the railroads. The delegates successfully advocated for the insertion of anti-Chinese provisions in the new Constitution. The Constitution of 1879 directed the legislature to make provisions for municipalities to remove Chinese outside their town limits, and declared that Chinese immigrants were “dangerous to the well-being of the state, and the legislature shall discourage their immigration by all means within its power.” By retaining the U.S. citizenship requirement for suffrage, California ensured that Chinese immigrants, who when the U.S. Congress passed the 1882 Chinese Exclusion Act would become ineligible for citizenship, would not be able to vote in the state.
Although the anti-Chinese provisions of the 1879 Constitution were later removed, the Constitution still refers to U.S. citizenship in its suffrage provisions. Article 2, § 2 of the current California Constitution, an amended version of the 1879 document, states that “[a] United States citizen 18 years of age and resident in this state may vote.” The California Elections Code refers to the constitutional provision directly, stating that whoever “qualifies under Section 2 of Article II of the California Constitution” and who properly registers may vote.
Despite its historical hostility to non-citizen voting at the state level, California has seen recent efforts to enfranchise non-citizens at the local level. In the most recent attempt at local reform, San Franciscans considered a ballot initiative which would have amended the San Francisco city charter to allow non-citizen parents and guardians of children in the San Francisco public school system to vote in local school board elections. On November 2, 2004, San Francisco voters narrowly defeated the measure. Whether courts will require a state constitutional amendment in order to uphold any future local reform initiatives on non-citizen voting remains to be seen. At least one California court has ruled that a change to allow local non-citizen voting requires an amendment to the state constitution, but some scholars contend that the language of the state constitution can be interpreted less restrictively to mandate citizen voting while neither requiring nor prohibiting non-citizen voting.
For more on current efforts to enfranchise non-citizens in local elections, see the Immigrant Voting Project’sCalifornia current initiatives page.
 Virginia Harper-Ho, Noncitizen Voting Rights: The History, the Law and Current Prospects for Change, 18 Law & Ineq. J. 271, 277 (2000).
 The 1849 Constitution’s provision on suffrage reads as follows: “Every white male citizen of the United States, and every white male citizen of Mexico, who shall have elected to become a citizen of the United States, under the treaty of peace exchanged and ratified at Queretaro, on the 30th day of May, 1848 of the age of twenty-one years, who shall have been a resident of the State six months next preceding the election, and the county or district in which he claims his vote thirty days, shall be entitled to vote at all elections which are now or hereafter may authorized by law: Provided, nothing herein contained, shall be construed to prevent the Legislature, by a two-thirds concurrent vote, from admitting to the right of suffrage, Indians or the descendants of Indians, in such special cases as such proportion of the legislative body may deem just and proper.” Cal Const. art. 2, §1 (1849), available athttp://www.ss.ca.gov/archives/level3_const1849txt.html.
 James J. Rawls, California History Online (2000), available athttp://www.californiahistoricalsociety.org/exhibits/online.html#.
 Cal. Const. art. 2, §2.
 Cal. Elec. Code § 2000(a) (West 2003).
 Felicia Mello, Immigrant Voting Measure Defeated in San Francisco, UC Berkeley Graduate School of Journalism, Election 2004 Coverage (November 2, 2004), available athttp://journalism.berkeley.edu/projects/election2004/archives/2004/11/proposition_wou.html. See also City and County of San Francisco Department of Elections, Consolidated General Election, November 2, 2004, Election Results, available at http://www.sfgov.org/site/uploadedfiles/election/results.htm.
 Harper-Ho explains that “[t]he California Constitution can be amended by legislative referendum or by direct initiative. A legislative amendment requires a two-thirds vote in each house to approve the proposal and a majority vote for ratification. To amend the constitution by direct initiative, a petition must be signed by eight percent of the voters for all gubernatorial candidates in the last election and the amendment must be passed by a majority vote in a referendum. Approved initiatives can be amended as specified or repealed, but not vetoed; defeated initiatives can be refiled. Changes to statutes can be made by direct initiative, legislative referendum or citizen petition.” Harper-Ho, supra note NOTEREF _Ref87726202 \h 1, at 315 (citations omitted).
 For the view that a constitutional amendment is necessary to permit non-citizen voting at the local level, see discussion in Harper-Ho, supra note , at 314. Harper-Ho also notes that “[i]n 1974, the California Court of Appeals for the Second District rejected permanent residents’ constitutional challenge to the Article II citizenship requirement under the Fourteenth Amendment Equal Protection Clause.” Id. at 314. For the view that the California Constitution can be interpreted as mandating suffrage for U.S. citizens without precluding suffrage for non-citizens, see, e.g., Rachel Moran, quoted in Mello, supra note NOTEREF _Ref87726311 \h 7.