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The Perils of Noncitizen Voting

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eye on the news

The Perils of Noncitizen Voting

New York City’s new law could become a fiasco. January 13, 2022
New York
Politics and law

On January 9, New York became the largest municipality in the United States to grant noncitizens the right to vote in local elections. Following nearly two decades of failed attempts, Intro. 1867 passed into law a month after its adoption by the city council. Beginning this December, approximately 800,000 lawful permanent residents, worker-visa holders, and DACA recipients will be permitted to register as “municipal voters” after residing in the city for 30 consecutive days.

This enfranchisement, its proponents claim, will expand civil rights and democratic participation, but it presents a host of problems. Intro. 1867 may be illegal under state law, offers no way to acculturate new voters to the American governmental system, incurs great costs for what will likely amount to few actual votes, and could even harm the very noncitizens it seeks to empower.

Despite their divergent policies and dispositions, Mayors Michael Bloomberg and Bill de Blasio doubted that noncitizen voting was legal and believed that granting a benefit previously reserved for American citizens would discourage many people from pursuing naturalization. William Heinzen, then deputy counselor to the mayor, testified in 2013 that the likely result of a law that expands the franchise “would be expensive litigation without actually allowing noncitizens to vote.”

Part of Heinzen’s prediction has already come true. The day after enactment, Republicans sued to challenge the law’s constitutionality and enjoin its implementation. Courts will decide whether the New York State constitution’s grant of the vote to “every citizen” is exclusive, or whether it merely guarantees U.S. citizens voting rights but does not restrict municipalities from extending further rights to noncitizens. Plain meaning and an old case from the state’s highest court suggest the former. The election statute also unequivocally limits voting to U.S. citizens, though a question arises over whether localities may override this restriction.

Moreover, the New York City Charter and Municipal Home Rule Law require a citywide ballot referendum to effectuate any law that “changes the method” of electing a public official. While Intro. 1867’s champions may fear that a referendum would go down to defeat, a win would satisfy these legal requirements while bolstering the idea’s democratic legitimacy. Besides, if the city council is out of step with the electorate on a matter that touches the heart of civic life, why shouldn’t New Yorkers have the final say?

Despite years of support, Mayor Eric Adams voiced last-minute hesitation that the measure’s 30-day residency requirement wasn’t long enough to justify granting noncitizens the vote. This worry isn’t new: in 2013, several councilmembers balked at a six-month residency requirement in a similar proposal because it wasn’t long enough to ensure that noncitizens had a stake in the city. Now, one-sixth of that time supposedly will suffice.

What’s more, Intro. 1867 bypasses naturalization’s five-year residency requirement and English and civics tests without substituting a way to acclimate new voters. The city and state do impose 30-day registration requirements for U.S. citizens— but is it reasonable to assume that most noncitizens can make informed decisions on Election Day after living for a mere month in America?

Because state and federal laws still prohibit noncitizen voting in non-local races, the city’s Board of Elections will need to create and distribute a separate local-only ballot for municipal voters. This will undoubtedly be costly—if it can even be done. Thanks to a structure dominated by political cronyism, neither BOE commissioners nor rank-and-file workers need to have any voting administration experience or relevant qualifications. A litany of Election Day blunders and chronic dysfunction testify to why the corrupt and incompetent BOE cannot be trusted to administer a dual-ballot system. The board’s General Counsel has admitted as much, writing that noncitizen voting “will present enormous problems in implementation.”

A blistering 2013 Department of Investigations report, for example, uncovered rampant cheating on the exam required to become poll workers. On Election Day, some poll workers have even directed incognito investigators to “vote down the line”—for only one party—supposedly to avoid scanner malfunctions. Absent major reforms, only achievable through state legislation or constitutional amendment, it would be irresponsible to leave noncitizen New Yorkers in the BOE’s hands.

Imagine that a municipal voter receives the wrong ballot, heeds faulty instructions, and inadvertently votes for federal offices. He would have committed a federal crime, jeopardized his ability to naturalize, and potentially subjected himself to deportation. Intro. 1867 accordingly mandates that a lengthy disclaimer appear on the municipal voter-registration application, stating that any information provided can be obtained by federal immigration enforcement, among other agencies, and advising prospective registrants to consult with an attorney. It’s hard to imagine a more forbidding message to those exercising this new right, and it will likely discourage many from bothering: Want to avoid legal trouble? Don’t vote.

Other evidence suggests that there won’t be much turnout to show for all the money and effort expended on noncitizen voting. For one thing, naturalized citizens tend to vote at lower rates than native-born Americans. And in places such as Takoma Park, Maryland, where noncitizens have been allowed to vote for decades, few show up on Election Day. In 2017, out of a foreign-born population of 2,901, 360 registered and 72 voted.

Instead of looking to New York’s example, as San Jose has recently, cities should consider alternatives that promote naturalization. The funds needed to create a dual-ballot system could be better used to facilitate those seeking to become citizens through fee vouchers, more English and civics classes, and no-cost legal assistance. These steps would not only offer more people full inclusion in the American body politic—allowing them to vote in all elections—but would also provide skills that help boost human capital and command higher wages.

Under current conditions, noncitizen voting in New York could become a fiasco. The city council should take steps to avoid that fate.

Photo by Igor Borisenko\TASS via Getty Images

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