Wake Forest Law Review
15Nov

Changing the Language, Not the Law: North Carolina’s Citizens-Only Amendment

Categories: Current Issues Blog Uncategorized
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By Emily Gordon

When North Carolina residents voted in the 2024 election, they might have been surprised to see a ballot measure regarding a proposed amendment to the state constitution.[1] Prior to the election, the North Carolina State Constitution allowed “every person born in the United States and  every person who has been naturalized” to vote in an election.[2] The proposed initiative asked if voters would be “for” or “against” removing the naturalization provision, modifying the voter qualification to read that “only a citizen of the United States who is 18 years of age and otherwise possessing the qualifications for voting shall be entitled to vote in any election in this state.”[3] 

At first glance, the proposed amendment was a mere restatement of what the law already declared.[4] And that’s just it–while the amendment proposed changing the language of North Carolina’s constitution, the law would remain unchanged: it is illegal for a non-citizen to vote in either a federal or statewide election.[5] 

North Carolina was one of a handful of states that voted on an amendment targeting noncitizen voting.[6] Idaho, Iowa, Kentucky, Missouri, Oklahoma, South Carolina, and Wisconsin also asked voters to consider amending their state constitutions to explicitly bar non-citizens from voting in a state or federal election.[7] 

Background

On June 27, 2024, the General Assembly of North Carolina passed House Bill 1074, allowing the proposed amendment to appear on the ballot in the 2024 federal election.[8] The measure was largely championed by the NCGOP, which controlled the state legislature.[9] NC House Rules Chairman Destin Hall said that “[t]ightening our election laws so that only U.S. citizens are voting in this country ensures that those making decisions about our country’s future have a vested interest in its well-being.”[10] The amendment was likely proposed in response to the NCGOP’s growing concerns over voter fraud by undocumented immigrants in both the 2016 and 2020 election.[11] Trump notoriously alleged that thousands of non-citizens had voted in the 2020 election, particularly in the state of Arizona, and claimed that such illegal voting led to his unsuccessful reelection.[12]

Critics of the amendment, led by Democrats, were strongly opposed to the proposed new language.[13] Reiterating that it is already illegal for noncitizens to vote in federal and state elections, opponents found the amendment unnecessary.[14] ACLU North Carolina further noted that 44% of immigrants in North Carolina are naturalized U.S. citizens, believing the amendment was spurred by “fearmongering” and “hateful rhetoric” towards naturalized immigrants in North Carolina.[15] Moreover, the NC ACLU viewed the amendment as a tactic to discourage naturalized immigrants from exercising their fundamental right to vote.[16] Similarly, Democracy NC believed the proposed amendment was part of a Republican agenda to create distrust “about immigrants and voting to sow doubts” about the upcoming election, “opening the door to confusion” amongst naturalized citizens.[17] 

Opponents of the amendment also turned to various studies refuting Republican claims of noncitizen voting in prior elections.[18] Analyzing the Heritage Foundation’s database of voter fraud cases brought by prosecutors, the Washington Post found only 85 cases of noncitizen voting allegations from 2002 to 2023.[19] Another study by the Brennan Center for Justice after the 2016 election found only 30 cases of suspected noncitizen voting in the election, out of 23.5 million votes from 42 different jurisdictions.[20] In North Carolina, a 2016 election audit found that suspected noncitizen voters, based on data from the state’s Division of Motor Vehicles, were citizens 98% of the time.[21] ACLU North Carolina additionally commented that “[b]ipartisan election officials confirmed that the 2020 election results were credible, accurate, and secure.”[22]

Results

            North Carolinians overwhelmingly voted in favor of the amendment, with 77.6% of votes “for” the amendment and 22.4% “against,” as of the time of writing.[23]  Of the 100 counties in North Carolina, only two had a majority of votes against the amendment: Durham and Orange County.[24] Notably, those whose who voted against the amendment in these counties only won by a slim majority: 53% and 52%, respectively.[25] In all other counties, proponents of the amendment won the vote by a majority of at least 66%.[26] Camden County and Bladen County had the highest percentage of  favorable votes as 93% of their constituents voted in favor of the amendment.[27] 

            All 8 states with similar constitutional amendments on their ballots adopted the language, making it explicitly illegal for noncitizens to vote in their jurisdictions. [28]

Implications

With the amendment taking effect, opponents will need to work harder to fight against the potential spread of misinformation about naturalized citizens.[29] Without explicit language allowing naturalized citizens to vote, it is possible that the amendment could be viewed as a substantive change to NC’s voting laws.[30] Likewise, the amendment may have confused other voters into believing that non-citizens could legally vote in the election prior to the amendment.[31] Educating newly naturalized citizens of their rights and encouraging them to vote, as well as educating Americans on currently existing law, will be key to battling any misleading information. Furthermore, opponents to the amendment worry that such language could open the door to interpretation of who qualifies as a “citizen,” potentially stripping away birthright citizenship from people who were born in the U.S. to parents without American citizenships.[32] Trump has explicitly said that if reelected, he would end birthright citizenship via executive order.[33] 

 Proponents of the amendment hoped that the language change would help North Carolinians feel more secure in the state’s election results.[34] North Carolina House Speaker Tim Moore echoed this sentiment, stating that the alleged “efforts to allow non-citizens to vote would undermine the public’s confidence in our electoral system and leave the door open for chaos and election fraud to take hold.”[35] Referring to the amendment as a “safeguard,” he further clarified his belief that “this amendment to our constitution would further strengthen election integrity in North Carolina.”[36] 

Across the country, North Carolina and the seven other states that voted in favor of adopting the amendment during the 2024 election join seven states with pre-existing language in their state constitutions explicitly prohibiting noncitizen voting.[37] Those states include Alabama, Arizona, Colorado, Florida, Louisiana, North Dakota, and Ohio.[38] Considering this, it would be unsurprising to see more and more states propose similar amendments to their state constitutions in the next election, particularly in states led by Republican supermajorities. 

[1] What is the ‘citizens-only’ amendment on the 2024 ballot in North Carolina?, ABC11 (Oct. 22, 2024), https://abc11.com/post/2024-election-what-is-citizens-amendment-ballot-north-carolina/15450474/. 

[2] Id.

[3] Id.

[4] Vote No on NC’s Citizens-Only Ballot Measure, ACLU North Carolina (Sept. 25, 2024), https://www.acluofnorthcarolina.org/en/news/vote-no-ncs-citizens-only-ballot-measure.

[5] Id.

[6] Kaanita Iyer, 8 states will vote to bar noncitizen voting, CNN projects, something already illegal in federal elections, CNN (updated Nov. 6, 2024), https://www.cnn.com/2024/11/03/politics/noncitizen-voting-ballot-measures-election/index.html.

[7] Id.

[8] H.R. 1074, 156th Gen. Assemb., Reg. Sess. (N.C. 2023). 

[9] ABC11, supra note 1.

[10] NCGOP Commends General Assembly for Placing Citizen-Only Voting Constitutional Amendment on 2024 Ballot, NCGOP (July 1, 2024), https://www.nc.gop/ncgop_commends_general_assembly_for_placing_citizen-only_voting_constitutional_amendment_on_2024_ballot.

[11] Id.

[12] Laura Doan, Trump falsely claims noncitizen voter fraud is widespread. Here are 5 facts., CBS News (October 30, 2024), https://www.cbsnews.com/news/trump-noncitizen-voter-fraud-fact-check/.

[13] Nicole Acevedo & Sakshi Venkatraman, Citizens-only ballot measures make newly naturalized Americans voting for the first time feel on edge, NBC News (Oct. 22, 2024), https://www.nbcnews.com/news/latino/citizens-only-ballot-measures-make-newly-naturalized-americans-voting-rcna176092.

[14] Id.

[15] Id.

[16] ACLU North Carolina, supra note 4.

[17] Vote “Against” Constitutional Amendment, Democracy NC, https://democracync.org/resources/vote-no-on-citizens-only-amendment/ (last visited Nov. 8, 2024).

[18] Doan, supra note 12.

[19] Glenn Kessler, The truth about noncitizen voting in federal elections, Wash. Post (March 6, 2024), https://www.washingtonpost.com/politics/2024/03/06/truth-about-noncitizen-voting-federal-elections/.

[20] Douglas Keith et al., Noncitizen Voting: The Missing Millions, Brennan Center for Justice (May 5, 2017), https://www.brennancenter.org/our-work/research-reports/noncitizen-voting-missing-millions.

[21] Emily Vespa, What to know about the citizen-only voting amendment on North Carolina’s Ballot, News & Observer (Oct. 31, 2024), https://www.newsobserver.com/news/politics-government/election/voter-guide/article294655104.html.

[22] ACLU North Carolina, supra note 4.

[23] North Carolina Constitutional Amendment H1074/S630 Election Results: Require Citizenship to Vote, N.Y. Times, https://www.nytimes.com/interactive/2024/11/05/us/elections/results-north-carolina-constitutional-amendment-h1074s630-require-citizenship-to-vote.html (last visited Nov. 8, 2024).

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Adam Edelman, Ballot measures targeting noncitizen voting approved in 8 states, NBC News (Nov. 6, 2024), https://www.nbcnews.com/politics/2024-election/ballot-measures-targeting-noncitizen-voting-approved-8-states-rcna178888.

[29] Will Doran, Citizen-only voting amendment passes with strong support among NC voters, WRAL News (updated Nov. 6, 2024), https://www.wral.com/story/citizen-only-voting-amendment-passes-with-strong-support-among-nc-voters/21705796/.

[30] Id.

[31] Id.

[32] Id.

[33] Ted Hesson, Trump vows to end birthright citizenship for children of immigrants in US illegally, Reuters (May 30, 2023), https://www.reuters.com/world/us/trump-vows-end-birthright-citizenship-children-immigrants-us-illegally-2023-05-30/.

[34] NCGOP, supra note 10.

[35] Id.

[36] Id.

[37] Laws permitting noncitizens to vote in the United States, Ballotpedia, https://ballotpedia.org/Laws_permitting_noncitizens_to_vote_in_the_United_States#States_where_noncitizen_voting_is_prohibited (last visited Nov. 6, 2024).

[38] Id.

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20Jan

Fourth Circuit Cannot Expand on a Limited Exception Under Immigration and Nationality Act

Categories: 4th Cir. Blog
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By Taylor Ey

Last Monday, January 12, the Fourth Circuit issued a published opinion in the civil case of Prasad v. Holder.  Appellant Prasad appealed the decision of the Board of Immigration Appeals, rejecting his claim that his status should be changed from one who is unlawfully present in the United States to that of lawful permanent resident.

Does the Deadline in the Immigration and Nationality Act Operate as a Statute of Repose or Is It Subject to Equitable Tolling?

The Immigration and Nationality Act, 8 U.S.C. § 1255(i), provides that if an unlawful citizen is the beneficiary of a labor-certification application filed on or before April 30, 2001, the unlawful citizen may be eligible for adjustment of status.  Appellant filed a labor-certification application; he conceded that his application was filed more than two months after April 30, 2001.  However, Appellant argued that the deadline should be equitably tolled because his attorney failed to file a timely application.  The Board of Immigration Appeals ruled against Appellant, and the Fourth Circuit denied petition for review in part, and dismissed in part.

Appellant’s History of Citizenship Status

Appellant gained entry to the United States on or about May 11, 2000.  At that time, he was unlawfully present.  He sought to change his citizenship status under 8 U.S.C. § 1255(i).  Appellant’s employer retained attorney Earl S. David to file a labor-certification application on Appellant’s behalf.  David filed Appellant’s application on July 13, 2001, even though the due date was clearly April 30, 2001.

Appellant filed for adjustment of status in 2007.  His status application was denied because the labor-certification application was filed after April 30, 2001.

The Board of Immigration Appeals affirmed the decision of the Immigration Judge, denying adjustment of status.

The Date in the Immigration and Nationality Act Operates as a Statute of Repose and Not a Statute of Limitations Subject to Equitable Tolling

The Fourth Circuit looked to the Ninth Circuit, the only other circuit to address the question in this case.  The Ninth Circuit decided that the deadline operates as a status of repose that cannot be equitably tolled.  Additionally, the Fourth Circuit explained that “a statute of repose operates as a substantive bar to liability, reflecting a legislative policy judgment that no legal right should be recognized after a statutorily determined end point.”

Statutes of Repose Have a Fixed End Point, Define Substantive Rights

Because the statute sets out a fixed end point by which the labor-certification applications must be filed, and the statute defines the substantive right, the Fourth Circuit determined that the deadline in the statute met the defining characteristics of a statute of repose.

Additionally, the Fourth Circuit cited the legislative history of the Immigration and Nationality Act, confirming that Congress intended the deadline to operate as a statute of repose.

The Deadline Acts as a Statute of Repose

Because Appellant did not file his labor-certification application before or on the deadline required by the Immigration and Nationality Act, Appellant was not eligible for adjustment of status.  The Fourth Circuit recognized the harshness of the black and white rule, and how in cases such as the instant case, the rule could result in hardship.  However, because the Immigration and Nationality Act only intended a limited exception, the Fourth Circuit was without authority to expand on the exception.

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