Common sense would indicate that the plain wording of the New York State Constitution and Election Law, as well as the Federal law cited above, would bar a noncitizen from voting, and when it comes to a state or federal election, your common sense would be correct. But enough loopholes have been built into these laws to give proponents of the new law a very good argument in favor of the constitutionality of noncitizen voting in local elections.
DOES THE NEW YORK CITY COUNCIL HAVE THE POWER TO MAKE THIS CHANGE?
Surprisingly, on this level, the arguments against the new law are more likely to be successful than those presented in our earlier discussion.
“In 2013, Mayor Bloomberg’s office also opposed (noncitizen voting) on the basis that, even if not contrary to New York’s constitution or its election law, under New York’s home rule statute and the city charter, any expansion of the franchise had to be via referendum. Section 23(2)(e) of New York’s Municipal Home Rule Law, along with Sec. 38 of New York City’s charter, 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.’ There is a powerful argument that expanding the franchise for municipal elections to include noncitizen residents is a change in method: it would change the very definition of who makes up the electorate; it may also require a change in procedures for voting, to make sure noncitizens cast the proper ballot. Where the state legislature sets forth categories of local laws subject to mandatory referendum, as it did with Sec. 23(2)(e), New York courts have said that they will interpret those categories when called upon to do so.”
So then, why didn’t the City Council authorize a voter referendum on this issue? Simply put, they fear defeat of the measure at the polls. “A referendum increases the chances of defeat. A similar initiative to extend the franchise in local elections to lawful residents was narrowly defeated in Portland, Maine in 2010...A proposal to allow noncitizen voting in school board elections in San Francisco’s was defeated by a 2.9 percent margin in 2004…and again, in 2010, by a much wider margin.”
Recall also the fate of the Minneapolis City Council’s decision to abolish their police force. After initially promising to replace the Minneapolis Police Department with a “Department of Community Safety and Violence Prevention,” the members of the City Council ultimately submitted the issue to a voter referendum. According to NPR, “(v)oters in Minneapolis…resoundingly rejected a proposal to reinvent policing in their city…(a)pproximately 56% of voters rejected a ballot question that would have removed the Minneapolis Police Department from the city charter and replaced it with a ‘public-health oriented’ Department of Public Safety.”
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The answer is obvious. As late as 2014, statistical data shows that the overwhelming majority of immigrants tend to register as Democrats. In New York alone, 60% of immigrants identified as Democrats, while only 15% claimed to be Republicans. In Massachusetts, it was 67% Democrat, 17% Republican, and in New Jersey, 62% to 14%. According to Pew Research, “Hispanic registered voters have historically identified more with the Democratic Party than the Republican Party…(a)bout two-thirds (64%) of Hispanic voters say they identify as Democrats or lean Democratic, compared with 24% who identify as Republican or lean toward the GOP.”
And just who are the majority of immigrants to New York City? According to the American Immigration Council, “(n)early a quarter of New York residents are immigrants…In 2018, 4.4 million immigrants (foreign-born individuals) comprised 23 percent of the population…The top countries of origin for immigrants were the Dominican Republic (11 percent of immigrants), China (9 percent), Mexico (5 percent), Jamaica (5 percent), and India (4 percent).”
Thus, the question is not, why is the overwhelming Democrat New York City Council seeking to expand their voter base to resident aliens. The question is, why shouldn’t they seek to add more Democrat voters and a permanent majority?
Judge John Wilson (ret.) served on the bench in NYC.
Photo: Pixabay