South Carolina Proposed Constitutional Amendment Seeks to Ban Non-Citizen Voting
October 18, 2024
By: Kristen Adolf
As we enter into a contentious election season, election law is on the forefront of much American political discourse and strife. Debates rage about who should vote, how they should vote, when they should vote, and where they should vote. In South Carolina, one of these questions will be left up to voters directly on the ballot this year.
In the November general election, South Carolina voters will find a proposed state constitutional amendment on their ballots relating to the first question asked in this article: who should enjoy the right to vote in South Carolina? The ballot question regarding the proposed amendment reads as follows:
Must Section 4, Article II of the Constitution of this State, relating to voter qualifications, be amended so as to provide that only a citizen of the United States and of this State of the age of eighteen and upwards who is properly registered is entitled to vote as provided by law?
On its face, the proposed amendment will seem straightforward to a normal voter. Many view voting as a right enjoyed by citizens of a country and limited only to those over the age of eighteen. However, what will not be provided on the ballot on election day is the original text of Section 4, Article II of the South Carolina Constitution. The current text of the Constitution reads as follows:
§ 4. Voter Qualifications
Every citizen of the United States and of this State of the age of eighteen and upwards who is properly registered is entitled to vote as provided by law.
The key language changed in the proposed amendment is the intentional change from the phrase “[e]very citizen” to the far more limiting “only a citizen.” Should the amendment pass, there will no longer be any direct language in the South Carolina State Constitution guaranteeing the right to vote to every South Carolina citizen. Rather, the Constitution will place a harsh limit on offering enfranchisement to only a citizen of the state over the age of eighteen.
Practically, this amendment itself will not reduce the right of citizens in South Carolina to vote. Enfranchisement for citizens of the United States are protected beyond state constitutions, including by the 15th, 19th, and 26th Amendments as well as key legislation like the Voting Rights Act.
However, the most direct result of this proposed amendment is that non-citizens will not have any potential path forward to gaining the right to vote in local elections including those for municipal districts, school board elections, and many more. While courts across the US have held that non-citizens do not enjoy a fundamental right to vote like citizens do, (Skafte v. Rorex, for example), federal law does not directly ban non-citizens from voting in local elections. Instead, three states and Washington, D.C. have districts or municipalities that allow non-citizens to cast votes for local matters – South Carolina is not one such state. In other jurisdictions, courts have held that non-citizen voting is perfectly permissible. In California, for example, the Court of Appeals held in Lacy v. City and County of San Francisco that state constitutional language guaranteeing the right to vote for “every citizen” did not necessarily exclude non-citizens from voting in local elections.
With the California case coming down merely a year ago, it is no surprise that South Carolina state legislatures sensed a loophole in the language of their own constitution. Should the proposed amendment be voted in by South Carolina voters this November, there does not appear to be a clear path towards litigation for non-citizen voting in local elections in South Carolina.
The proposed amendment was introduced in the State Senate on February 29, 2024 as S1126. The ballot question was passed through joint resolution, leaving the question of changing the Constitution’s language to the voters this November.