In the fall of 2022, the District of Columbia enacted a law that permitted residents who were not United States citizens to vote in local elections. Local voting opportunities for non-citizens have been the source of some recent expansion and litigation, with many interesting questions about participation in democracy. And DC is no different. The House recently voted to disapprove of this law by a 260-162 vote, although its fate in the Senate and before the President is much less clear.

But I wanted to highlight a unique election administration challenge for DC. Federal law prohibits non-citizen voting in federal elections, including the selection of presidential electors and the delegate from the District of Columbia. The DC law doesn’t change that or challenge that. But DC is in a position that most localities aren’t when they administer elections for non-citizens in local elections. For this, let me highlight the testimony from the Executive Director of the District of Columbia Board of Elections, Monica Evans, last fall:

Director Evans testified without taking a substantive position on the bill itself. She stated that the legislation would create several logistical challenges for the Board that would need to be considered. She noted that the District is unique, in that the Board operates as both a state and local entity. In contrast, jurisdictions that already allow non-citizen voting in local elections, like Takoma Park, Maryland, function only as local entities, and they do not administer state-wide or federal elections. She stated that the first task, if the bill is passed, would be for the Board to create a new voter registration form or modify the existing form. This process would involve other entities, like the Department of Motor Vehicles.

Director Evans further testified that the Board would need to work directly with their voter registration vendor to modify their existing registration database. The Board’s current system is hard coded to allow data entry of U.S. citizens only. She approximates that this might cost between $150,000 and $250,000. She noted that the Board would also need to implement list maintenance procedures other than the Electronic Registration Information Center (“ERIC”), which only receives information about U.S. citizens.

In addition, Director Evans testified that as a result of this legislation, the number of ballot styles will double, because the Board will have to create separate ballots for local contests only. She further noted that Help America Vote Act (“HAVA”) funding can only be used for the administration of federal elections, so the Board would have to prorate some of their expenditures. If elections do not include a federal context and costs are incurred, the Board may need additional funding. Moreover, the mail house that the Board uses will incur additional costs to produce additional ballot styles and mail more ballots.

Director Evans further noted that the Board will need to develop a process to code ballots of citizens and non-citizens differently and allow them to be tracked. The equipment that scans and tabulates mail-in ballots will need to be modified appropriately. She testified that the Board will also incur costs related to education and outreach, as well as staffing associated with implementation. She lastly requested that the Committee consider a reasonable timeline for implementation, given the several other legislative changes related to the Board that will go into effect in the next election cycle.

Upon questioning from Chairperson Allen, Director Evans clarified that it is likely the Board will need additional local dollars to cover local elections, which are not covered by HAVA funds. However, as long as the local and federal elections are on the same ballot, HAVA funds can be used. If the local election were to be on a separate day, the District would have to cover the full cost of that election. As such, from an administrative and cost perspective, holding local and federal elections on the same day and same ballot makes the most sense.

In addition to other costs she noted in her testimony, Director Evans emphasized the costs associated with a robust education and outreach effort. She stated that the Board will have to take a targeted approach to make sure residents understand the parameters of the legislation. She, like others who testified, does not want to put residents in legal jeopardy by inadvertently voting improperly, so she believes education is key. She is confident that safeguards can be put in place to minimize the risk. The Board has the technology – “ballot on demand” – to create and print unique ballots for each resident. The mail house also has equipment to create new ballot styles based on the voter lists the Board transmits. The voter registration system needs to be adjusted, as well, to reflect citizenship status. In addition, because ERIC does not accept non-citizen information, the Board needs to explore other options for voter list maintenance, for example, potentially through an MOU with a credit reporting agency that tracks when residents move to another state. She believes all of this is doable, and it is just a function of time and money.

Upon questioning from Councilmember Nadeau, Director Evans spoke more about the importance of language access in the context of this legislation. She noted again that the education and outreach will need to be ramped up and expanded. The Board has bilingual staff who currently participate in outreach, as well as contractual staff available during election season to provide translation services. The Board also has access to the language line. She noted that, in contrast to testimony earlier, voter registration forms are currently available online in Spanish, French, and Korean, as well as English, and the Board is working to expand to other languages. She further noted that the Board plans to be more intentional in partnering with community-based organizations serving immigrant residents to assist with education about this legislation.

Upon further questioning by Chairperson Allen, Director Evans responded to the concerns brought up by Abel Nunez in his testimony about potential unintended consequences. She acknowledged that there is always a possibility of human error – for example, a non-citizen resident receiving a ballot in the mail containing a federal contest. However, she believes we can minimize the risk by ensuring residents are properly registered and engaging in a widespread education campaign. She also said she would like to talk to other jurisdictions where non-citizen voting is allowed; however, she knows that many hold their local elections separate from their federal elections, which eliminates the risk. She emphasized that the shared goal is to protect our residents.

We are seeing something of a rise–and perhaps something of a concern–about two-track elections being administered simultaneously. In Moore v. Harper, for instance, some amicus briefs, including this one by Ben Ginsberg, highlighted how a decision reducing (or eliminating) the role of state courts reviewing state laws relating to federal elections could create two-track election administration problems. Likewise, Arizona has moved toward more two-track election administration as it seeks to avoid the federal voter registration form in its scrutiny of citizenship and voter eligibility.

Of course, on the merits, I imagine many have strong thoughts one way or other on each of these kinds of two-track proposals, whether the benefits outweigh the costs or risks of administration, and so on. But I didn’t really realize that non-citizen voting in local elections in DC would look different from non-citizen voting in local jurisdictions in other localities throughout the United States, and I found the legislative history last fall to be noteworthy.