On December 9, 2021, the New York City Council passed a local law amending the City Charter to allow “lawful permanent residents and persons authorized to work in the United States in New York city to participate in municipal elections.” To accomplish this, the new law redefines a “municipal voter” as “a person who is not a United States citizen on the date of the election on which he or she is voting, who is either a lawful permanent resident or authorized to work in the United States, who is a resident of New York city and will have been such a resident for 30 consecutive days or longer by the date of such election, who meets all qualifications for registering or pre-registering to vote under the election law, except for possessing United States citizenship, and who has registered or pre-registered to vote with the board of elections in the city of New York under this chapter.”
As reported by the New York Post, “’Our city will become the largest municipality in the nation that will allow non-citizens to vote in local elections,’ Speaker (of the City Council) Corey Johnson…said… ‘New York has been built by immigrants, and we are what we are because of them.’”
Although the bill passed by a wide margin, not everyone on the New York City Council was enthusiastic about the new law. “Councilman Mark Gjonaj — a Democrat who represents parts of The Bronx...(indicated that the) 30-day minimum residency in New York City should be extended to at least a year, because it would permit ‘transients’ to head to the polls…’This bill in its current form doesn’t protect New York City; it makes it vulnerable to outside influence,’ he said….’It doesn’t take much to … figure out how dangerous this bill is for the future of New York City,’ he added. ‘This bill … is a threat to our sovereignty.’”
While this is a valid, if somewhat obscure, basis to question the actions of the New York City Council, there are more obvious objections to the passage of this bill, objections which will serve as the grounds for a lawsuit to be brought by “Staten Island Borough President-elect Vito Fossella…along with Council Republican leader Joseph Borelli and the (New York) state Republican Party” – that is, 1) the City Council does not have the power to enact this law without either a voter referendum, 2) the new law is not legal, under either the federal or state constitutions.
IS THE NEW LAW CONSTITUTIONAL?
Like any legal question, the answer is not simple. Pursuant to Article 2, Section 1 of the New York State Constitution, “Every citizen shall be entitled to vote at every election for all officers elected by 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.”
According to “Albany Law School professor Vincent Bonventre…’Although the provision does not explicitly say that a ‘non-citizen may not vote’ or that only citizens may vote, the implications seems pretty clear that the right to vote is exclusive to citizens—they are the only ones mentioned and nothing else suggests the right to vote may be extended to others.’” Further, “James McGuire, a former appellate court judge and chief legal counsel to three-term Gov. George Pataki, said, ‘It is difficult to reconcile the City Council’s position with the fact that the provision in the state constitution that grants the right to vote distinguishes between a citizen and a resident.’”
On the other hand, “Doug Kellner, a Democratic co-chairman on the state Board of Elections, said local governments (have) discretion to organize their own elections under the state’s ‘home rule’ provision. He noted that non-citizens were allowed to vote in school board elections.”
From these, generic viagra australia the researcher’s isolated 16 patients with symptoms of hyperthyroidism. For the herbs to work, the patients simply have to levitra 20mg uk believe that a great deal has to do with faith. A delayed erection (priapism) can cheapest viagra 100mg harm the vital organ of body. Kamagra jelly is one of the best product are available in market for the solution of ED. on line viagraIn fact, “New York’s original state constitution gave the vote to all white male residents – citizen or noncitizen – who owned property and declared allegiance to the state. Not long after, New York became one of the first states to ban noncitizen voting: by 1804, the state election law required citizenship to vote, and an 1827 law defined ‘citizenship’ unambiguously as U.S. citizenship…New York City permitted noncitizens to vote in local school board elections between 1968 and 2003…noncitizen voting in school boards was legal because school boards were considered outside local government…” The school board system was abolished in 2002, along with the New York City Board of Education when a new law was enacted, “replacing it with a…Panel for Educational Policy controlled by the mayor. The mayor gained the power to appoint the chancellor, and Community Education Councils, consisting of parents, replaced community school boards.”
Besides the New York State Constitution, there is New York Election Law, Sec, 5-102(1), to be considered, which states that “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.”
This would seem to be pretty explicit; however, according to a study published in 2014 by the Center for Immigration Studies, “New York’s election law also provides…that if a conflict exists between state election law and ‘any other law,’ the latter prevails unless the election law specifically provides that it should prevail. Known…as a ‘savings clause’…provision, this language creates a presumption against preemption unless the New York State legislature makes its intent to preempt local law unmistakably clear.” What this means is, “(t)he state legislature easily could have included preemptive language such as ‘notwithstanding any state or local enactment to the contrary…’ in § 5-102…(i)t has not done so..”
Thus, proponents of the new law argue that the New York State constitution does not stand in the way of New York City enacting its own law, for its own elections. They also argue that the City Council’s act should be considered “any other law,” not explicitly preempted by New York State Election law.
Federal law also plays a role here. Under 18 USC Sec. 611(a), “It shall be unlawful for any alien to vote in any election held solely or in part for the purpose of electing a candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner, unless—(1) the election is held partly for some other purpose; (2) aliens are authorized to vote for such other purpose under a State constitution or statute or a local ordinance; and (3) voting for such other purpose is conducted independently of voting for a candidate for such Federal offices, in such a manner that an alien has the opportunity to vote for such other purpose, but not an opportunity to vote for a candidate for any one or more of such Federal offices.”
Thus, as noted by the Center for Immigration Studies, “In short, federal law explicitly recognizes that a state or local government can extend suffrage to noncitizens, at least with regard to a state or local matter, as long as the relevant government body develops procedures to ensure that the noncitizen cannot vote on the federal matter. This might be done either by giving noncitizens a different ballot, or by holding local elections at a different time. At the same time, immigration law makes a noncitizen who votes in violation of any federal, state or local law inadmissible or deportable.”
Judge John Wilson (ret.) served on the bench in NYC/ His analysis concludes tomorrow.
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