This week, New York became the latest city to grant voting rights to non-residents – a move that could give voting rights to 800,000 non-citizens in city elections. There are roughly a dozen such cities granting voting rights across the country but there are major questions over the legality of this measure in New York.

The purpose of these laws is to enfranchise non-citizens who pay taxes and are part of these communities. The New York law only extends to permanent residents.  Critics argue that it is part of a trend toward erasing the distinctions between citizens and non-citizens.

The law, however, faces a credible challenge in the absence of action from the state legislature in Albany.

The first stumbling block is the state constitution itself. N.Y. Const. art. II, § 1 provides that “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.”

Proponents would have to establish that non-citizens can be treated as citizens “entitled to vote at every election.” It is possible that a court could interpret the language broadly in a non-exclusionary way.  Proponents note that noncitizens have previously voted in some New York city elections.

The second barrier is the New York state election law, which limits the franchise “in any election” to US citizens:

No person shall be qualified to register for and vote at any election unless he is a citizen of the United States and is or will be, on the day of such election, eighteen years of age or over, and a resident of this state and of the county, city or village for a minimum of thirty days next preceding such election.

However, there is a savings clause that says that if a conflict exists between state election law and “any other law,” the latter prevails absent a specific prohibition in the election law. The New York City law could be argued as such “other law” that prevails in a conflict.

Finally, there is Section 23(2)(e) of New York’s Municipal Home Rule Law, along with § 38 of New York City’s charter, which provides that a local law shall be subject to mandatory referendum if it “[a]bolishes an elective office, or changes the method of … electing … an elective officer, or changes the term of an elective office, or reduces the salary of an elective officer during his term of office.” This is a measure coming from the City Council itself, not a referendum.

It is clear that the law will be challenged and there are credible claims to be made in court. Even Mayor de Blasio has expressed doubts over the legality of the law. What is clear is that various Democratic cities are moving to adopt similar laws, though much will depend on their state constitutions and laws. In New York, the Constitution raised a challenging interpretive task as does the Home Rule law. In the end, this would seem a matter for the state legislature to resolve. The addition of 800,000 votes in New York City alone is a major shift in the voting population. The resulting policy changes impact that whole state and obviously citizens travel and change residences between these cities. It is a matter that should be addressed by the whole state on the whether voting should remain a right exclusive to citizens.



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