Non-Citizen Voting in New York City Blocked by State Court

Stop spreading the news: non-citizens may not be allowed to vote in New York City elections,

after all, unless a state appellate court overturns a recent decision saying that the state constitution

forbids the practice.


The United States has a long, storied history of non-citizens voting in local elections. Even today,

although non-citizens may not vote in federal elections, non-citizens in eleven towns in Maryland, two in

Vermont, and one in California (San Francisco) can validly cast a ballot. For several decades non-citizens

could vote in New York City school board elections, but in 2002 the city abolished elected school boards.

The city sought to enfranchise non-citizens once again, passing a law in 2021 that would allow about

800,000 residents to vote in local elections. But a judge has put a stop to the implementation of the

law—for now.


In a thirteen-page ruling, Justice Ralph J. Porzio (a Republican state trial judge from Staten

Island) ruled that the New York City law was unconstitutional and violated state election law. But the

court’s analysis raises questions about the proper interpretation of the state constitution, especially in

an era in which federal courts have been hostile to voting rights claims.


The New York Constitution provides,

Every citizen shall be entitled to vote at every election for all officers elected by the people and

upon all questions submitted to the vote of the people provided that such citizen is eighteen

years of age or over and shall have been a resident of this state, and of the county, city, or

village for thirty days next preceding an election. (Article II, § 1).


The court said that under the “plain meaning” of this section, the state constitution forbids non-citizens

from voting. “[B]y not expressly including non-citizens in the New York State Constitution, it was the

intent of the framers for non-citizens to be omitted.”


But this interpretation adds the word “only” into the state constitution. The text does not say

that “only a citizen” is entitled to vote. It says “every” citizen may vote. That language signals that the

voter qualifications are a floor, not a ceiling. There is nothing to suggest that localities cannot expand

suffrage beyond the state constitution’s limits.


Other provisions of the state constitution say that “Every local government, except a county

wholly included within a city, shall have a legislative body elective by the people thereof” and that the

word “people” “shall mean or include . . . persons entitled to vote” as dictated by Article II, § 1. Putting it

all together, localities must have a government elected by the people, and the people includes “every

citizen.” The language does not say “includes exclusively” citizens or “only” every citizen. The better

interpretation—given that the state constitution offers an affirmative grant of the right to vote—is that

the courts should construe the provision to mean that “at least” every citizen can vote in all elections in

the state.


Other states have seemingly understood their state constitutions to leave the door open to non-

citizens voting in local elections and have adopted state constitutional amendments to limit this

possibility. In 2020, voters in three states—Alabama, Colorado, and Florida—passed state constitutional

amendments to change their state constitutions, which previously conferred the right to vote to “every

citizen,” to now say that “only a citizen” may vote in the state. Arizona and North Dakota passed this

same change in 2019. And Ohio voters will face a similar measure this fall. That change is apparently

unnecessary under the New York court’s analysis, however, as “every citizen” already implicitly means

“only a citizen.” But that’s not what the New York State Constitution says.


The court also ruled that the New York City provision to expand the electorate violates state

election law and was not adopted properly, as it would require a referendum instead of city council

legislation. Those questions go to the specifics of the local governments’ authority. On that front, if

there is room for interpretation under state law, courts should allow local governments to create a more

expansive electorate if they so choose. As I wrote, in an article titled The Right to Vote Under Local Law,

If democratic legitimacy stems from enjoying the consent of the governed, then the “governed”

should include as many competent people as possible who have a stake in governmental affairs.

Local governments pass many laws that have real world effects every day. Individuals often are

actively involved in their community debates; democracy flourishes the most at the local level.

Broadening the right to vote in local elections is thus paramount to achieving a well-functioning

democracy.


That question, of course, goes to the wisdom of the New York City policy, and there are strong

arguments on both sides of this debate. But the legal issue should be clearer: state constitutions that confer voting rights to “every citizen” do not prohibit localities from adopting a more expansive rule for their local democracy. The court here went beyond the text of the state constitution to create a limit on voter eligibility that the plain language does not support.