Can a state require everyone in a polling place to be a U.S. citizen?

Subject

Opinion No. 13-29, Requiring Persons Admitted to Polling Places to Be United States Citizens, March 27, 2013

Plain-English summary

HB985 would have amended Tenn. Code Ann. § 2-7-103(a) (who may be present in a polling place) and § 2-7-104(a) (who may be appointed as a poll watcher) to require U.S. citizenship for everyone admitted to a polling place during an election, including all poll watchers.

The AG concluded HB985 was constitutionally suspect under the Fourteenth Amendment Equal Protection Clause.

The framework. The Equal Protection Clause requires that "all persons similarly circumstanced shall be treated alike" (F.S. Royster Guano Co. v. Virginia, quoted in Plyler v. Doe). Aliens who have been lawfully admitted are "persons" under the Fourteenth Amendment (Yick Wo v. Hopkins, 1886), so state laws that discriminate on the basis of alienage trigger heightened scrutiny.

The default rule from Nyquist v. Mauclet, Graham v. Richardson, and In re Griffiths is that alienage classifications are "inherently suspect" and subject to strict scrutiny. The state must show the classification advances a compelling state interest by the least restrictive means available. Bernal v. Fainter, 467 U.S. 216 (1984).

The political-function exception. A narrow exception, the "political function" or "governmental function" exception, applies to "laws that exclude aliens from positions intimately related to the process of democratic self-government." For these laws, rational-basis review applies. Sugarman v. Dougall; Foley v. Connelie; Cabell v. Chavez-Salido, 454 U.S. 432 (1982).

The two-part test for whether the political-function exception applies: (1) is the classification appropriately tailored (not over- or under-inclusive)? (2) does the position involve "broad discretionary power over the formulation or execution of public policies importantly affecting the citizen population"?

Applying that framework to HB985. Some functions in a polling place might fit the political-function exception. Voting itself does (Skafte v. Rorex). Election officials might (under Foley v. Connelie and Cabell). But Tennessee election law already required election officials to be registered voters under § 2-5-106(a), which itself requires citizenship. So HB985 didn't add anything for that category.

What HB985 did add was a citizenship requirement for: (1) persons assisting voters; (2) members of the press; (3) anyone with written authorization from the county election commission; (4) appointed poll watchers (which under § 2-7-104(a) can be appointed by "any organization of citizens interested in a question on the ballot or interested in preserving the purity of elections"). None of these functions involves discretionary policymaking authority. The press doesn't formulate or execute public policy. Voter assistants help individual voters; they don't make policy. Citizen-organization watchers observe; they don't decide.

Without the political-function exception, strict scrutiny applies. The state's compelling interest in election integrity (Burson v. Freeman) doesn't get the state across the finish line because the means weren't narrowly tailored. The bill didn't require people in the polling place to be registered voters or any other narrow qualification; it just required citizenship. That's a much broader classification than necessary to prevent voter intimidation or election fraud.

The LULAC distinction. The Sixth Circuit in LULAC v. Bredesen, 500 F.3d 523 (6th Cir. 2007), held that nonimmigrant aliens (not lawful permanent residents) are not a suspect class for Equal Protection purposes. HB985 didn't distinguish nonimmigrant aliens from LPRs; it applied to all aliens. LPRs are clearly within the protected class under Graham and Nyquist.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The alienage-classification framework remains stable. Bernal v. Fainter, Cabell, and the Sugarman line continue to govern. Anyone analyzing a current Tennessee citizenship-at-the-polls bill should also look at the modern poll-watcher cases and any new state legislation. The political-function doctrine has been narrowed in subsequent cases, so any defense of a citizenship requirement should account for that.

Background and statutory framework

Existing Tennessee polling place rules. Tenn. Code Ann. § 2-7-103(a) listed who may be admitted to a polling place during an election: election officials, voters, persons assisting voters, the press, poll watchers under § 2-7-104, others bearing written authorization from the county election commission, and children accompanying parents. § 2-7-104 governed poll watcher appointments by political parties and citizen organizations. § 2-7-116 addressed voter assistance for disabled or illiterate voters, allowing "any person of the voter's selection" to provide help. § 2-5-106(a) already required all officers of elections, judges, machine operators, precinct registrars, and assistant precinct registrars to be registered voters (which under § 2-2-102 requires U.S. citizenship).

HB985's proposed change. Amended § 2-7-103(a) to admit only U.S. citizens to a polling place during an election. Amended § 2-7-104(a) to require all appointed poll watchers to be U.S. citizens.

The strict scrutiny framework for alienage.

• Yick Wo v. Hopkins, 118 U.S. 356 (1886): aliens are "persons" within the Fourteenth Amendment.
• Graham v. Richardson, 403 U.S. 365 (1971): state classifications by alienage are "inherently suspect."
• Nyquist v. Mauclet, 432 U.S. 1 (1977): general rule of strict scrutiny.
• In re Griffiths, 413 U.S. 717 (1973): same.
• Sugarman v. Dougall, 413 U.S. 634 (1973): introduces the political-function exception.
• Foley v. Connelie, 435 U.S. 291 (1978): upholds state-trooper citizenship requirement under political-function doctrine.
• Cabell v. Chavez-Salido, 454 U.S. 432 (1982): two-part test for political-function exception (tailoring + position character).
• Bernal v. Fainter, 467 U.S. 216 (1984): strikes down notary public citizenship requirement; political-function exception doesn't apply because notary duties don't involve broad discretionary public-policy power.

Earlier Tennessee AG opinions. Op. 86-85 (Apr. 9, 1986) opined that a Tennessee statute precluding beer permits to aliens violated the Equal Protection Clause. Op. 88-197 (Nov. 10, 1988) reached the same conclusion on beer permits. Op. 12-94 (Oct. 8, 2012) opined that a charter-school provision tied to nonimmigrant-foreign-worker quotas was constitutionally suspect under the Fourteenth Amendment. Op. 86-85 was still good doctrine when Op. 13-29 was issued.

The strict-scrutiny analysis of HB985. The state's interest in election integrity is well established (Burson; Anderson v. Celebrezze). The question is whether HB985 was "narrowly tailored." It was not, because (1) state law already required election officials to be registered voters (which itself requires citizenship), so the citizenship requirement was redundant for that category; and (2) for the other categories (press, voter assistants, citizen-organization watchers), the political-function exception didn't apply because those roles don't involve discretionary policymaking authority over the citizen population. The over-inclusive sweep of HB985 was a textbook reason strict scrutiny would defeat the bill.

Common questions

Why does the Equal Protection Clause protect non-citizens?

Because the text covers "persons," not "citizens." Yick Wo v. Hopkins in 1886 established that aliens lawfully present in the U.S. are "persons" under the Fourteenth Amendment. State classifications that discriminate against aliens trigger heightened scrutiny just like classifications based on race or national origin.

What's the political-function exception?

A narrow carve-out from strict scrutiny. States can require U.S. citizenship for "positions intimately related to the process of democratic self-government" — meaning positions that involve formulating or executing public policy. Police officers (Foley) and probation officers (Cabell) have qualified. Notaries (Bernal), state lawyers, and now (under Op. 13-29's reasoning) press observers, voter assistants, and citizen poll watchers have not.

Why didn't HB985 fit the political-function exception?

Because most of the people in a polling place aren't engaged in policy-making. They're observing (press, citizen watchers) or assisting (voter assistants). Those functions don't involve broad discretionary power over the citizen population. Under Bernal v. Fainter, when the position doesn't involve policymaking authority, strict scrutiny applies, and a broad citizenship requirement fails.

Could a state require poll workers to be citizens?

Yes. Tennessee already did, indirectly, by requiring election officials to be registered voters (and only citizens can register to vote). That's how the state passes the narrow-tailoring test for election officers themselves. The problem with HB985 was that it extended citizenship to people whose roles didn't involve the policy-making functions the political-function exception protects.

Could a state require voters to be citizens?

Yes. Skafte v. Rorex, 553 P.2d 830 (Colo. 1976), upheld this on rational-basis grounds. Tennessee's voter qualification statute, § 2-2-102, requires U.S. citizenship. That requirement doesn't violate Equal Protection.

What about nonimmigrant aliens vs. LPRs?

LULAC v. Bredesen (6th Cir. 2007) held that nonimmigrant aliens (visa holders, tourists, etc.) are not a suspect class for Equal Protection purposes; they can be treated differently from citizens and LPRs without triggering strict scrutiny. But LPRs are within the protected class. HB985 didn't distinguish between the two, which meant it applied strict scrutiny to its treatment of LPRs.

Citations

Tenn. Code Ann. § 2-2-102 (voter qualifications); § 2-5-106 (election officers); § 2-7-103 (polling place); § 2-7-104 (poll watchers); § 2-7-116 (voter assistance). U.S. Const. amend. XIV. Federal alienage cases: Yick Wo v. Hopkins, 118 U.S. 356 (1886); Plyler v. Doe, 457 U.S. 202 (1982); Royster Guano, 253 U.S. 412 (1920); Nyquist v. Mauclet, 432 U.S. 1 (1977); Graham v. Richardson, 403 U.S. 365 (1971); Examining Board v. Flores de Otero, 426 U.S. 572 (1976); In re Griffiths, 413 U.S. 717 (1973); Sugarman v. Dougall, 413 U.S. 634 (1973); Bernal v. Fainter, 467 U.S. 216 (1984); Foley v. Connelie, 435 U.S. 291 (1978); Cabell v. Chavez-Salido, 454 U.S. 432 (1982). Election-integrity cases: Burson v. Freeman, 504 U.S. 191 (1992); Anderson v. Celebrezze, 460 U.S. 780 (1983). Sixth Circuit: LULAC v. Bredesen, 500 F.3d 523 (6th Cir. 2007). Voter citizenship: Skafte v. Rorex, 553 P.2d 830 (Colo. 1976). Facial review: Waters v. Farr, 291 S.W.3d 873 (Tenn. 2009). Prior AG opinions: Op. 86-85; Op. 88-197; Op. 12-94.

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-029.pdf

Original opinion text

S T A T E O F T E N N E S S E E
OFFICE OF THE
ATTORNEY GENERAL
PO BOX 20207
NASHVILLE, TENNESSEE 37202

March 27, 2013

Opinion No. 13-29

Requiring Persons Admitted to Polling Places to Be United States Citizens

QUESTION

Does House Bill 985/Senate Bill 549 of the 108th General Assembly, 1st Sess. (2013) ("HB985") which requires poll watchers or any other person admitted to a polling place during an election to be a United States citizen, violate the Equal Protection Clause of the Fourteenth Amendment?

OPINION

HB985 is constitutionally suspect under the Equal Protection Clause of the Fourteenth Amendment.

ANALYSIS

HB985 as originally proposed was amended by both the Tennessee House and Senate. This opinion addresses HB985 as amended.

HB985 would amend Tenn. Code Ann. § 2-7-103(a) to provide that only citizens of the United States are to be admitted to a polling place during an election. The bill would further amend Tenn. Code Ann. § 2-7-104(a) to require that all appointed poll watchers be citizens of the United States.

In an opinion issued in 1986, this Office addressed the constitutional validity of a Tennessee statute that precluded the issuance of beer permits to aliens. Tenn. Att'y Gen. Op. 86-85 (Apr. 9, 1986). This Office opined that, in the absence of a showing of a compelling state interest justifying discrimination against aliens, the statute in question would violate the Equal Protection Clause. See also Tenn. Att'y Gen. Op. 12-94 (Oct. 8, 2012); Tenn. Att'y Gen. Op. 88-197 (Nov. 10, 1988).

Opinion 86-85 remains an accurate statement regarding the constitutional constraints on statutes that discriminate on the basis of alienage. The Equal Protection Clause of the Fourteenth Amendment provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." "The Equal Protection Clause directs that 'all persons similarly circumstanced shall be treated alike.'" Plyler v. Doe, 457 U.S. 202, 216 (1982) (quoting F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)). Since the Supreme Court's decision in Yick Wo v. Hopkins, 118 U.S. 356 (1886), aliens who have been lawfully admitted are considered "persons" within the meaning of the Fourteenth Amendment and thus entitled to the equal protection of the laws. Accordingly, the Supreme Court has held as a general matter that classifications by a state that are based on alienage are "inherently suspect and subject to close judicial scrutiny." Nyquist v. Mauclet, 432 U.S. 1, 7 (1977). In order to withstand such strict scrutiny, a law must advance a compelling state interest by the least restrictive means available. Bernal v. Fainter, 467 U.S. 216, 219 (1984).

Nevertheless, the Supreme Court has recognized a narrow exception to the rule that discrimination in a state statute based on alienage triggers "strict scrutiny." This exception, labeled the "political" or "governmental" function exception, applies to "laws that exclude aliens from positions intimately related to the process of democratic self-government." Tenn. Att'y Gen. Op. 86-85 at 3 (quoting Bernal, 467 U.S. at 220). Exclusions or limitations that fall within this exception, if challenged, are evaluated under the more lenient "rational basis" standard. Sugarman, 413 U.S. at 648; Foley v. Connelie, 435 U.S. 291, 296 (1978).

To determine whether a restriction based on alienage fits within this narrow political-function exception, the United States Supreme Court has established a two-part test. First, the specificity of the classification will be examined: a classification that is substantially over inclusive or under inclusive tends to undercut the governmental claim that the classification serves a legitimate political ends. Second, even if the classification is sufficiently tailored, it may be applied in the particular case only to "persons holding state elective or important nonelective executive, legislative, and judicial positions," those officers who "participate directly in the formulation, execution, or review of broad public policy" and hence "perform functions that go to the heart of representative government." Cabell v. Chavez-Salido, 454 U.S. 432, 440 (1982).

Thus, a state may justify its exclusion of aliens under the political-function exception by demonstrating that the position in question involves the exercise of "broad discretionary power over the formulation or execution of public policies importantly affecting the citizen population — power of the sort that a self-governing community could properly entrust only to full-fledged members of that community." Bernal, 467 U.S. at 224.

When these standards are applied to HB985, the provisions of this bill appear on their face to be constitutionally suspect as violative of the Equal Protection Clause. Tennessee Code Ann. § 2-7-103(a) currently provides that "[n]o person may be admitted to a polling place while the procedures required by this chapter are being carried out except election officials, voters, persons properly assisting voters, the press, poll watchers appointed under § 2-7-104 and others bearing written authorization from the county election commission." Tennessee Code Ann. § 2-7-104(a) governs the appointment of poll watchers and provides that "[e]ach political party and any organization of citizens interested in a question on the ballot or interested in preserving the purity of elections and in guarding against abuse of the elective franchise may appoint poll watchers." HB985 would amend these statutes to provide that any persons present in a polling place during an election, including appointed poll watchers, must be United States citizens. HB985 thus would have a discriminatory impact on aliens.

Because HB985 would have a discriminatory impact, the initial question is whether the alienage restriction of the bill should be evaluated under the "strict scrutiny" standard or the more lenient rational-basis test. While the political-function exception could arguably apply to election officials because of the role that they play in conducting elections, Tennessee law already requires that election officials be United States citizens. Tenn. Code Ann. § 2-5-106(a). However, HB985 would also prohibit aliens from providing assistance to voters, from serving as members of the press, and from obtaining written authorization from the county election commission to observe an election. It would further prohibit aliens from serving as appointed poll watchers on behalf of "any organization of citizens interested in a question on the ballot or interested in preserving the purity of elections and in guarding against abuse of the elective franchise." Given that Tennessee's election laws invest no policymaking responsibility or discretion in these persons, it is doubtful that the political-function exception would apply to these categories of persons. As the United States Supreme Court observed, in determining that notaries did not fall within the governmental-function exception:

To be sure, considerable damage could result from the negligent or dishonest performance of a notary's duties. But the same could be said for the duties performed by cashiers, building inspectors, the janitors who clean up the offices of public officials, and numerous other categories of personnel upon whom we depend for careful, honest service. What distinguishes such personnel from those to whom the political-function exception is properly applied is that the latter are invested either with policymaking responsibility or broad discretion in the execution of public policy that requires the routine exercise of authority over individuals.

Bernal, 467 U.S. at 225-26.

Thus, the broad inclusion of these other categories of persons in the alienage restrictions of HB985 would likely subject the bill to strict-scrutiny review. To satisfy strict scrutiny, the State would be required to demonstrate that these provisions further "a compelling state interest by the least restrictive means practically available." Id. at 228.

One possible rationale for this bill is to protect the integrity of the polling place. The United States Supreme Court consistently has found that states have a compelling interest in maintaining the integrity of the voting place, preventing voter intimidation and confusion, and preventing election fraud. Burson v. Freeman, 504 U.S. 191, 199 (1992); Anderson v. Celebrezze, 460 U.S. 780, 788 n.9 (1983). The crucial issue, then, is whether this bill is narrowly tailored to accomplish this compelling state interest.

As previously discussed, HB985 would broadly prohibit aliens, including legal permanent residents, from being present in the polling place during elections, regardless of their purpose for being present (e.g., member of the press, appointed poll watcher, providing voter assistance). It is not apparent that protection of the integrity of the polling place is a rationale for this citizenship requirement, particularly when state law does not otherwise require a person to be a registered voter to perform any of these functions in the polling place. Consequently, the alienage restriction contained in HB985 would likely be held not to advance a compelling state interest and thereby violate the Equal Protection Clause of the Fourteenth Amendment.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

JANET M. KLEINFELTER
Deputy Attorney General

Requested by:
The Honorable Mike Stewart
State Representative
24 Legislative Plaza
Nashville, Tennessee 37243-0152