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.