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Noncitizen Voting in Abeyance

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Noncitizen Voting in Abeyance

A state judge’s ruling that New York City’s arrangement is both unconstitutional and unlawful likely won’t be the final word. June 30, 2022
Politics and law
New York

On Monday, a Staten Island state court judge fired the opening salvo in the legal battle over New York City’s granting local-election voting rights to more than 800,000 lawful noncitizen residents. Judge Ralph J. Porzio’s decision in favor of a Republican-led group of plaintiffs enjoined the enactment, which had not yet become operative, on the grounds that it violated the state constitution and statutory election law. While the case will likely be appealed, the trial court’s decision represents a major setback for supporters of noncitizen voting.

On December 9, 2021, the New York City Council passed Intro 1867, which became law after Mayor Eric Adams allowed one month to pass without his signature. Described in the decision as the Municipal Voting Law, it creates a new class of “municipal voters,” made up of city residents who are not citizens of the United States but who are lawfully present, such as students, workers, and permanent residents, for at least 30 consecutive days prior to a local election. It further calls for municipal-voter registration and party enrollment to begin in December 2022, for next year’s elections. In February, I issued a Manhattan Institute report discussing the practical and legal issues of noncitizen voting in New York.

Shortly after the law took effect, Republicans launched a legal challenge against the city in a Richmond County state court, requesting that the law be declared invalid and its implementation enjoined. Their argument contended that noncitizen voting was unlawful for three reasons: it failed to comply with the state constitution, statutory election law, and Municipal Home Rule Law. Earlier this month, the court heard oral arguments, and on Monday, it denied the defendants’ motion for summary judgment while granting the plaintiffs’ motion. In doing so, the court held that noncitizen voting ran afoul of all three legal grounds.

Article II, Section 1 of New York’s constitution states that every “citizen shall be entitled to vote at every election,” provided that he meets certain age and residency requirements. As I suggested in January, the decision gave “citizen” its ordinary understanding: “based upon a plain reading of the New York State Constitution, ‘every citizen,’ in this Court’s opinion, means every citizen of the United States.”

Further, the court found no merit in the defendants’ contention that the constitution merely guaranteed the vote to U.S. citizens, without necessarily excluding noncitizens. Interpreting the qualifications to vote exclusively, the court explained “that by not expressly including non-citizens in the New York State Constitution, it was the intent of the framers for non-citizens to be omitted.”

As for the state’s statutory election law, it expressly requires that a resident be a “citizen of the United States” in order to register and vote. But ambiguity arose from another section of the same law. It provides that an inconsistent provision of “any other law” could override the election statute unless the election statute specifically prohibited replacement. The court assessed whether “any other law” meant a local law—thereby allowing municipalities to supersede state law—or whether it meant that only other state laws could supersede the statute. Porzio found the latter, in part based on the consequence that would flow from the opposite interpretation: local laws could effectively rewrite substantially all of the election statute. Thus, the decision held that the noncitizen voting act violated the state election law.

Finally, the state Municipal Home Rule Law provides that when a local law “changes the method of nominating, elevating, or removing an elected officer,” the ordinance must receive a majority vote in a municipal referendum held within 60 days of passage. Porzio read the local law as triggering the requirement to hold a municipal referendum before it can take effect. Because no such vote occurred, the court concluded that this failure “further invalidates the Municipal Voting Law.”

An eventual appeal to New York’s high court is likely, but for now, opponents of noncitizen voting have struck a resounding early victory. Porzio’s decision likely comes as welcome news to the city Board of Elections as well. Because it is still illegal for noncitizens to vote in state and federal elections, municipal voters must receive special, local-only ballots on election days that also host nonlocal races. Such administrative burdens will be considerable for a board that routinely botches elections because of a “lack of technical and ‘professional’ expertise at the highest levels of decision-making,” as a recent state senate committee report described.

Not even two weeks after the law’s enactment, the city board asked its state counterpart to issue guidance on the legality and implementation of noncitizen voting. Translation: the city board doesn’t know how to do it and doesn’t want the headache. The court’s decision may give it a reason not to comply with the invalid law’s July deadline to issue an implementation plan.

For his part, Mayor Adams supported the noncitizen voting proposal as a candidate, but after its passage in the city council, he had last-minute reservations—especially over its mere 30-day residency requirement. This was no doubt partly behind his failure to sign the bill into law. Adams’s recently passed budget did not include the city council’s request for $25 million to implement the measure, causing consternation among its supporters. Porzio’s decision could give the mayor further reason to cast doubt on the law’s viability and value. For instance, he may opt not to defend it vigorously on appeal, perhaps leaving that task to a group of intervenors who have stepped into the suit as defendants.

Supporters of noncitizen voting can’t say that they weren’t warned that this would happen. For more than a decade, the city council considered multiple proposals along the same lines. Over that time, groups and officials, including Mayors Michael Bloomberg and Bill de Blasio, repeatedly doubted the legality of noncitizen voting. But before anyone trumpets told-you-sos, the state’s high court must speak.

Photo by Michael M. Santiago/Getty Images

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