constitutional-law voting
Can the federal government tell San Francisco that they cannot allow non-citizen immigrants to vote
<p>San Francisco passed a law allowing non-citizens to vote in school board <a href="https://www.nbcnews.com/politics/immigration/san-francisco-allows-undocumented-immigrants-vote-school-elections-n893221" rel="nofollow noreferrer">elections</a>. Representative Jeff Duncan introduced a bill that would strip all federal funds from any locality that allows non-citizens to vote. From his <a href="https://jeffduncan.house.gov/press-release/duncan-bill-defunds-localities-allow-noncitizen-voting" rel="nofollow noreferrer">webpage</a>,</p>
<blockquote>
<p>The Eliminating Foreign Intervention in Elections Act has two key components:</p>
<ul>
<li><p>Empowers the U.S. Census Bureau to collect and publish information on which States or localities have noncitizen voting policies in place.</p>
</li>
<li><p>Defunds localities that allow noncitizens to vote in elections for State or local office.</p>
</li>
</ul>
</blockquote>
<p>Is this constitutionally allowed?</p>
<hr />
<p><strong>My research</strong></p>
<p>The constitution has several prohibitions against denying certain people the right to vote. For example the fifteenth amendment &quot;prohibits the federal and state governments from denying a citizen the right to vote based on that citizen's 'race, color, or previous condition of servitude'.&quot; <a href="https://en.wikipedia.org/wiki/Fifteenth_Amendment_to_the_United_States_Constitution" rel="nofollow noreferrer">wiki</a></p>
<p>However I can't find any positive statements of who gets the right to vote, or any mention of who decides that. I assume that because the tenth amendment gives the powers not delegated to the federal government to the states or the people, that this is up to the states to decide.</p>
<p>Technically, Duncan's bill doesn't actually prohibit San Francisco from making this law, it just imposes very coercive penalties for doing so. The case of <a href="https://en.wikipedia.org/wiki/South_Dakota_v._Dole" rel="nofollow noreferrer">South Dakota v. Dole</a> lays out five criteria for considering if withdrawal of federal funds is unconstitutionally coercive. The last criteria is &quot;The condition must not be coercive.&quot; The debate around this fifth criteria seems to center on how much money is being withdrawn. This question might hinge on whether San Francisco gets enough money to count as &quot;irresistable pressure.&quot;</p>
<p>I have a somewhat tenuous chain of logic laid out here. Any one of the links could be flat out wrong, or I could be just completely missing the point.</p>

<p>In <a href="https://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf" rel="nofollow noreferrer">National Federation Of Independent Business v. Sebelius</a>, the court addressed the matter of withholding funding, with respect to obligatory expansion of Medicaid, where ACA required states to expand Medicaid coverage, or lose all federal Medicaid funds. The effect, as described in the ruling was "[t]he threatened loss of over 10 percent of a State’s  overall  budget", which constitutes "economic  dragooning  that  leaves  the  States with no real option but to acquiesce in the Medicaid expansion", and "The Medicaid expansion thus violates the Constitution by threatening States with the loss of their existing  Medicaid  funding  if  they  decline  to  comply  with  the  expansion". A law which withholds <em>more</em> than Medicaid funding would therefore clearly be at least as coercive as ACA.</p>

<p>It is some interest that the ACA ruling put specific comparative numbers on the effect of the highway funding law underlying SD v. Dole, which they decided was "less than a half a percent" of the state budget. In contrast, in the case of Medicaid funding, their estimate was that Medicaid costs are about 20% of a state's budget, and the federal government pays 50%-80% of that. That means, picking low numbers, the effect of withholding Medicaid funding would be about 10% of a state's budget. The line between persuasion and coercion then seems to lie between .5% and 10%.</p>

<p>The presumably introduced bill is <a href="https://jeffduncan.house.gov/sites/jeffduncan.house.gov/files/documents/Eliminating%20Foreign%20Intervention%20in%20Elections%20Act.pdf" rel="nofollow noreferrer">here</a>, for reference. The core paragraph is </p>

<blockquote>
  <p>(a) None of the funds made available in  any  Act  may  be  used  to 
  make  payments  to  any  unit of  local  government  that  permits 
  individuals  who  are  not  citizens  of  the  United  States  to 
  vote  in  elections  for  State   or local office.</p>
</blockquote>

<p>However, the introductory clause identifies the purpose as being </p>

<blockquote>
  <p>To  prohibit  Federal  payments  to  a  unit  of  local  government<br>
  that  allows  individuals  who  are  not  citizens  of  the  United<br>
  States  to  vote  in  elections  for  State  or  local  office,  and<br>
  for other purposes.</p>
</blockquote>

<p>The substantial difference is that propositions are not offices: the bill introduces ambiguity in legislative intent (the words of the statute say one thing, the potentially enforceable sections introduced into US Code say something else). The bill does not define "unit of local government", so we could search for existing definitions of that term. <a href="https://www.law.cornell.edu/uscode/text/31/6701" rel="nofollow noreferrer">31 USC 6701</a>: primarily "a county, township, city, or political subdivision of a county, township, or city, that is a unit of general local government as determined by the Secretary of Commerce for general statistical purposes" (I don't think school, fire, hospital and water districts count). Alternatively <a href="https://www.law.cornell.edu/uscode/text/42/12746" rel="nofollow noreferrer">42 USC 12746</a>: </p>

<blockquote>
  <p>a city, town, township, county, parish, village, or other general
  purpose political subdivision of a State; the Federated States of
  Micronesia and Palau, the Marshall Islands, or a general purpose
  political subdivision thereof; a consortium of such political
  subdivisions recognized by the Secretary [HUD] in accordance with
  section 12746(2) of this title; and any agency or instrumentality
  thereof that is established pursuant to legislation and designated by
  the chief executive to act on behalf of the jurisdiction with regard
  to provisions of this Act.</p>
</blockquote>

<p>To get the desired effect, the sponsor wants the definition in <a href="https://www.law.cornell.edu/cfr/text/2/200.64" rel="nofollow noreferrer">2 CFR 200.64</a>, which includes school districts (and that chunk is about federal grants, thus apt for the bill). The statutory authority for this interpretation is <a href="https://www.law.cornell.edu/uscode/text/31/503" rel="nofollow noreferrer">31 USC 503</a>.</p>
