Expanding Democracy: The Case for Enfranchising Noncitizens in Local Elections

*J.D., University of Virginia School of Law, 2024. I would like to express my gratitude to Vice Dean Michael Gilbert for the invaluable discussions and feedback that assisted me in writing this piece. I am also thankful to Professor Amanda Frost, Catherine Ward, Sheena Patel, Jamie Miller, and the editors of the Virginia Law Review, especially Cameron Beach, for their thoughtful suggestions. Writing this piece would not have been possible without the unwavering support of my family: Manal, Maher, Omar, Amal, and Christopher.Show More

In the wake of recent state-led movements to restrict voting rights in the United States, New York City passed a law expanding local voting rights. Intro 1867-A defines municipal elections as the “designation, nomination[,] and election process for the offices of mayor, comptroller, public advocate, city council member, and borough president.” This law limits “municipal voters” to lawful permanent residents and noncitizens authorized to work in the United States who have been residents of New York City for at least thirty consecutive days by the date of a given election and who meet all other voting registration requirements under election law. Intro 1867-A was subsequently struck down on appeal on February 21, 2024, when a New York appeals court held that it violated the New York State Constitution. This Essay is the first to argue that Fossella v. Adams should be reversed by proposing a reading of the New York Constitution that permits enfranchising noncitizens at the local level and providing a policy-driven analysis that supports this framework. This examination is especially important since the Fossella challenge is not unique to New York; instead, the movement to enfranchise noncitizens at the local election level is rapidly growing nationwide. Markedly, a comparable law was recently challenged without success in the United States District Court for the District of Columbia on similar grounds. Thus, Intro 1867-A’s future is pivotal in shaping the landscape of noncitizen voting rights in local elections.

Introduction

In the wake of state-led movements to curtail voting rights in the United States, New York City boldly enacted a law expanding local voting rights to enfranchise eligible noncitizens. In January 2020, City Council member Ydanis Rodriguez introduced Intro 1867-A, which, after a decisive 33-14 City Council vote, became law in January 2022.¹ 1.Int. 1867-2020, N.Y.C. Council (2022), https://legistar.council.nyc.gov/LegislationDetail.‌aspx?ID=4313327&GUID=DF600BDA-B675-41D8-A8BD-282C38DC4C62 [https://perma.‌cc/SR3F-VJQZ].Show More Intro 1867-A created an uncommon novel class of “municipal voters” limited to (1) “lawful permanent residents” and (2) noncitizens “authorized to work” in the U.S. who (i) have been residents of New York City for at least thirty consecutive days before a given election and (ii) meet “all [other voting] qualifications” under “election law.”² 2.N.Y.C. Charter, ch. 46-A, § 1057-AA(a) (2022).Show More As a result, eligible noncitizens are permitted to vote in elections for municipal offices but are expressly prohibited from voting for any state or federal office, political party position, or on any state or federal ballot question.³ 3.Id. (defining “municipal office” as “the offices of mayor, public advocate, comptroller, borough president, and council member”); id. § 1057-RR.Show More

This law stands out as unusual because it meaningfully increases New York State’s total number of voters by enfranchising approximately 800,000 noncitizens directly affected by municipal policies, thus empowering them with a voice they would not have otherwise possessed.⁴ 4.Els de Graauw, New York City Restores Local Voting Rights for Noncitizens, EUI Global Citizenship Observatory (Feb. 8, 2022), https://globalcit.eu/new-york-city-restores-local-vot‌ing-rights-for-noncitizens/ [https://perma.cc/6MDT-KMGN].Show More New York City is now the largest U.S. city to extend local voting rights to noncitizens, joining other municipalities including those in California, Maryland, and Vermont.⁵ 5.Id.Show More

This significant change sparked immediate controversy. Two days after Intro 1867-A became law, a group of plaintiffs—including seventeen U.S. citizens, the New York Republican State Committee, and the Republican National Committee—filed a complaint in the New York Supreme Court challenging the validity of the law under the New York Constitution, New York Election Law, and the New York Municipal Home Rule Law.⁶ 6.Fossella v. Adams, 206 N.Y.S.3d 611, 618 (2024).Show More The complaint alleged that Intro 1867-A would dilute U.S. citizens’ votes, including those of the voter plaintiffs, by introducing new voters likely to impact election outcomes.⁷ 7.Id. at 619.Show More It also argued that the legislation would require the officeholder plaintiffs to revise their campaign tactics to account for this “sizeable change” in the electorate’s makeup and compel “the political party plaintiffs to ‘adjust their strategies’” to elect Republicans in New York.⁸ 8.Id.Show More On June 27, 2022, the trial court granted the plaintiffs’ permanent injunction request in Fossella v. Adams, holding that the law violated the New York Constitution, New York Election Law, and the New York Municipal Home Rule Law.⁹ 9.Id. at 618.Show More

The defendants subsequently challenged this injunction, and on February 21, 2024, a New York appeals court ruled that the lower court had correctly invalidated Intro 1867-A, determining it contravened the New York Constitution and the Municipal Home Rule Law.¹⁰ 10.Id.Show More However, the appeals court identified an error in the trial court’s decision to void the legislation based on a violation of the New York Election Law, leading to a modification of the order and its return to the Supreme Court of Richmond County for entry of judgment.¹¹ 11.Id. at 634.Show More

In striking down the law as unconstitutional under Article II, Section 1 of the New York Constitution, the court focused on two inquiries: (1) whether “citizen” refers to U.S. citizens or New York citizens, and (2) whether “every election for all officers elected by the people” encompasses both municipal and statewide elections, or statewide elections exclusively.¹² 12.Id. at 626–27. The court also discussed the plaintiffs’ standing and Intro 1867-A’s constitutionality under New York Election Law and the New York Municipal Home Rule Law, but these issues are beyond the scope of this Essay.Show More The court adopted a narrow construction of the term “citizen” as used in the New York Constitution, interpreting it to refer only to U.S. citizens, thus excluding noncitizens.¹³ 13.Id. at 627.Show More Further, it concluded that the plain language of Article II, Section 1 indicates that the clause covers both municipal and statewide elections, noting the lack of specific language to restrict its application to statewide elections only.¹⁴ 14.Id.Show More The ruling has now been appealed to the state’s highest court.¹⁵ 15.Emily Ngo, New York City Council Appeals Decision to Strike Down Non-Citizen Voting Law, Politico (Mar. 25, 2024, 1:57 PM), https://www.politico.com/news/2024/03/25/‌new-york-city-council-appeals-decision-to-strike-down-non-citizen-voting-law-00148854 [https://perma.cc/3AKU-8NX3].Show More

This Essay is the first to argue that Fossella v. Adams was wrongly decided and should be reversed by the New York Court of Appeals. Part I surveys the historical landscape of noncitizen suffrage in the United States. Part II posits a framework that supports reading the New York Constitution as enfranchising noncitizens at the local election level. Part III explores policy considerations that support this line of reasoning and refutes some of the concerns mentioned in Fossella.

These analyses hold particular importance given that the challenge posed by Fossella is not unique to New York; rather, the push for noncitizen enfranchisement at the local election level represents a rapidly growing trend across the United States. Notably, a comparable municipal law was challenged on vote-dilution grounds and upheld in the United States District Court for the District of Columbia.¹⁶ 16.See, e.g., Hall v. D.C. Bd. of Elections, No. 23-cv-01261, 2024 WL 1212953 (D.D.C. Mar. 20, 2024). In Hall, petitioners challenged D.C. Act 26-640, which eliminates the prior citizenship requirement for voting in municipal elections, and argued that this law dilutes the vote of U.S. citizen voters in the District by enfranchising noncitizens, including undocumented ones, who do not have a fundamental right to vote in the United States nor a constitutional right to govern the United States. Id. at *3–5. Intro-1867-A differs from D.C. Act 26-640 as it does not apply to the estimated 500,000 undocumented immigrants residing in New York City. On March 20, 2024, Hall was dismissed on standing grounds, so the D.C. Act was upheld. Hall, 2024 WL 1212953, at *1. However, the U.S. House of Representatives recently voted to block Act 26-640, so it will not take effect. Meagan Flynn, House Votes to Block Noncitizen Voting in D.C. Elections—Again, Wash. Post (May 23, 2024), https://www.‌washingtonpost.com/dc-md-va/2024/05/23/house-vote-dc-noncitizen-voting/ [https://perma.‌cc/L7NR-PT8A].Show More Success on appeal is possible, as evidenced by similar laws that, despite being overturned at the lower court level, have later been upheld.¹⁷ 17.In 2018, San Francisco implemented a law permitting eligible noncitizens to participate in school board elections. This law was overturned in July 2022 when the San Francisco Superior Court ruled that it contravened the California Constitution. See Lacy v. San Francisco, No. CPF-22-517714, slip op. at 2, 7 (Cal. Super. Ct. July 29, 2022). However, in 2023, an appellate court reversed and remanded, finding that charter cities possess the authority under the California Constitution to allow noncitizens to vote in school board elections. See Lacy v. San Francisco, 312 Cal. Rptr. 3d 391, 398, 413 (Cal. Ct. App. 2023).Show More Although the outcomes of such cases will ultimately depend on their respective state laws, this Essay’s analysis of Fossella provides a workable framework pivotal in shaping the ongoing national project of noncitizen voting rights in local elections.

1.  Int. 1867-2020, N.Y.C. Council (2022), https://legistar.council.nyc.gov/LegislationDetail.‌aspx?ID=4313327&GUID=DF600BDA-B675-41D8-A8BD-282C38DC4C62 [https://perma.‌cc/SR3F-VJQZ]. ↑
2.  N.Y.C. Charter, ch. 46-A, § 1057-AA(a) (2022). ↑
3.  Id. (defining “municipal office” as “the offices of mayor, public advocate, comptroller, borough president, and council member”); id. § 1057-RR. ↑
4.  Els de Graauw, New York City Restores Local Voting Rights for Noncitizens, EUI Global Citizenship Observatory (Feb. 8, 2022), https://globalcit.eu/new-york-city-restores-local-vot‌ing-rights-for-noncitizens/ [https://perma.cc/6MDT-KMGN]. ↑
5.  Id. ↑
6.  Fossella v. Adams, 206 N.Y.S.3d 611, 618 (2024). ↑
7.  Id. at 619. ↑
8.  Id. ↑
9.  Id. at 618. ↑
10.  Id. ↑
11.  Id. at 634. ↑
12.  Id. at 626–27. The court also discussed the plaintiffs’ standing and Intro 1867-A’s constitutionality under New York Election Law and the New York Municipal Home Rule Law, but these issues are beyond the scope of this Essay. ↑
13.  Id. at 627. ↑
14.  Id. ↑
15.  Emily Ngo, New York City Council Appeals Decision to Strike Down Non-Citizen Voting Law, Politico (Mar. 25, 2024, 1:57 PM), https://www.politico.com/news/2024/03/25/‌new-york-city-council-appeals-decision-to-strike-down-non-citizen-voting-law-00148854 [https://perma.cc/3AKU-8NX3]. ↑
16.  See, e.g., Hall v. D.C. Bd. of Elections, No. 23-cv-01261, 2024 WL 1212953 (D.D.C. Mar. 20, 2024). In Hall, petitioners challenged D.C. Act 26-640, which eliminates the prior citizenship requirement for voting in municipal elections, and argued that this law dilutes the vote of U.S. citizen voters in the District by enfranchising noncitizens, including undocumented ones, who do not have a fundamental right to vote in the United States nor a constitutional right to govern the United States. Id. at *3–5. Intro-1867-A differs from D.C. Act 26-640 as it does not apply to the estimated 500,000 undocumented immigrants residing in New York City. On March 20, 2024, Hall was dismissed on standing grounds, so the D.C. Act was upheld. Hall, 2024 WL 1212953, at *1. However, the U.S. House of Representatives recently voted to block Act 26-640, so it will not take effect. Meagan Flynn, House Votes to Block Noncitizen Voting in D.C. Elections—Again, Wash. Post (May 23, 2024), https://www.‌washingtonpost.com/dc-md-va/2024/05/23/house-vote-dc-noncitizen-voting/ [https://perma.‌cc/L7NR-PT8A]. ↑

17.  In 2018, San Francisco implemented a law permitting eligible noncitizens to participate in school board elections. This law was overturned in July 2022 when the San Francisco Superior Court ruled that it contravened the California Constitution. See Lacy v. San Francisco, No. CPF-22-517714, slip op. at 2, 7 (Cal. Super. Ct. July 29, 2022). However, in 2023, an appellate court reversed and remanded, finding that charter cities possess the authority under the California Constitution to allow noncitizens to vote in school board elections. See Lacy v. San Francisco, 312 Cal. Rptr. 3d 391, 398, 413 (Cal. Ct. App. 2023). ↑