Michele Bachmann says Barack Obama can use executive order to give voting rights to illegal immigrants legalized under Senate bill

She may not be running for another term in Congress, but Rep. Michele Bachmann, R-Minn., is still making provocative statements.

In an interview with World Net Daily, a conservative Web publication, Bachmann urged House Republicans to oppose key features of a Senate-passed bill that allows a pathway to citizenship for illegal immigrants (a process that critics call amnesty).

Among other things, she warned that as soon as illegal immigrants become voters, they will vote for Democrats. Bachmann said that Republicans could lose the House in 2014 if they weren’t careful.

"Because, I think the president, even by executive order, could again wave his magic wand before 2014 and he’d say, ‘Now, all of the new legal Americans are going to have voting rights,’ " Bachmann said.

Bachmann’s office didn’t return a request for elaboration, but we found several legal experts to analyze her claim that Obama, or any president, could use an executive order to grant voting rights to anyone newly legalized under an immigration overhaul that emerges from Congress.

The short answer is that Bachmann is wrong.

The Constitution explicitly addresses who can vote for the U.S. House of Representatives (Article I, Section 2), for the U.S. Senate (the 12th Amendment) and for the presidency (Article II, Section 1). In each case, the Constitution says, the states -- not the president or Congress -- determines who can vote for these offices. To vote for Congress, for instance, a voter must be eligible to vote for representatives to the larger house of the state’s legislature.

Because of this, "the president can’t change the federal qualification directly, and he also could not, by executive order, change the qualifications for the state legislature," said Kermit Roosevelt, a law professor at the University of Pennsylvania.

Generally speaking, only native-born or naturalized citizens can vote. Legal permanent residents (those with a green card) cannot. Once someone becomes a legal permanent resident, they generally have to wait five years before they are even eligible to seek U.S. citizenship. If they decide to apply for citizenship, they must pass a criminal background check and a civics test before becoming a citizen.

In fact, a law passed in 1996 and amended in 2000, says clearly that it’s "unlawful for any alien to vote" in a federal election.

"Any non-citizen who attempts to vote unlawfully is subject to criminal penalty under state and federal law," said Kevin Johnson, dean of the University of California-Davis School of Law. 

The Senate immigration bill would not grant voting rights to newly legalized immigrants immediately, and they would not be guaranteed the right to vote eventually. Rather, the bill sets up a pathway to citizenship -- a pathway that includes additional hurdles beyond the ones facing legal permanent residents seeking naturalization, such as paying a fine.

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Once the law is enacted, Obama wouldn’t be able to do a quick about-face and use an executive order to strip out all the obstacles to citizenship and simply make illegal immigrants full citizens, Roosevelt and Johnson agreed. "It would violate the intent of, as well as the text of, the law passed by Congress," Johnson said.

Indeed, Obama has not demonstrated an inclination to push the envelope on changing voting rules for illegal immigrants. Under an Obama administration policy known as Deferred Action for Childhood Arrivals, illegal immigrants who came to the United States as children can seek a delay from deportation, as well as permission to work legally. But the right to vote is not allowed under the policy.

So, Bachmann is flat wrong about Obama’s ability to turn illegal immigrants into voters. However, as we have sometimes noted, even her incorrect statements raise some interesting questions. As it turns out, Obama can’t issue an executive order that allows non-citizens to vote, but states may be able to extend voting rights to non-citizens, as long as doing so is not barred by the state’s constitution.

As recently as this year, the Supreme Court ruled in Arizona vs. Inter-Tribal Council of Arizona that the Constitution "empowers Congress to regulate how federal elections are held, but not who may vote in them" -- which only strengthens a state’s claim to the power to decide who can vote.

"I think a state would have a strong argument" that it could do this, Roosevelt said.

Of course, just because it’s possible doesn’t mean it’s likely. Hans von Spakovsky, a senior legal fellow at the conservative Heritage Foundation and a former member of the Federal Election Commission, said states that try to allow non-citizens to vote would likely face a court fight. "They would have to pass a state law, and then go to court and argue that the state law is not pre-empted by the federal statute and that the federal law is an unconstitutional invasion of the state’s right to set qualifications," he said.

In general, states might have an easier time arguing that non-citizens should be permitted to vote in state elections. A state that sought to permit non-citizen voting in federal elections would face greater legal obstacles, experts say.

However, an even higher hurdle would be overcoming the idea, now deeply ingrained in the public mind, that there’s a bright line between citizens and non-citizens -- citizens vote, and non-citizens do not.

Today, very few non-citizens vote for any office, and the few who do only vote for local offices. For instance, non-citizens can vote in a handful of localities in Maryland, such as Takoma Park, and only for purely local positions. No state today allows non-citizens to vote in state-level elections, and the occasional efforts in state legislatures to expand voting to non-citizens have gone nowhere.

This was not always the case. Alien voting was permitted in many states early in the nation’s history, and while the idea waxed and waned over the years, the impulse to let aliens vote spread widely during westward expansion, when new territories were eager to attract residents, political scientist Jamin Raskin has written.

Such laws were reversed one by one during the first quarter of the 20th Century, due to World War I-era nationalism and fears about rising immigrant populations. The last state to allow alien voting, Arkansas, ended it in 1926. No state has resurrected it since.

Our ruling

Bachmann said "the president … by executive order" could grant voting rights to illegal immigrants newly legalized under pending legislation. That’s not true -- the states, not the president, have the power to determine who can vote. It’s right there in the Constitution. We rate Bachmann’s claim Pants on Fire.