Josh Gerstein for Politico:
The federal government’s claim that it has the authority to ban foreigners from voting and donating in state and local elections prompted sharp questioning from a federal appeals court panel this week.
Three 9th Circuit judges heard challenges Wednesday brought by two men convicted of campaign-finance violations in San Diego.
Lawyers for political consultant Ravneet Singh and Mexican businessman Jose Azano contended in legal briefs that the federal law banning campaign donations by foreigners is unconstitutional when applied to non-federal elections, at least with respect to foreigners who have significant ties to the U.S.
However, the first specific mention of the issue at oral arguments in a San Francisco courtroom on Wednesday came not from lawyers for either side, but when Judge Paul Watford asked Assistant U.S. Attorney Helen Hong to respond to the constitutional question embedded in the case….Moments later, Singh’s attorney told the panel that the federal government’s position in the case was a threat to the balance of power between the central government on one side and states and localities on the other.
“What they’ve forgotten about is federalism,” said the lawyer, Harold Krent, “It’s up to the state and local government to decide who votes, who can contribute. How ironic that we’re here in San Francisco, which has given the vote to noncitizens in school board elections. And the argument from the government is: ‘Oh yeah, we can overrule that at any time because we have total control of who can participate in governance in terms of voting, in terms of contributions.’”
Krent said it was bizarre that foreigners in the U.S. have the right to write about elections or engage in street protests, but can’t donate money.