Republican lawsuit against noncitizen voting law begins

Late last year, the New York City Council passed a landmark law extending the right to vote in local elections to immigrants who live, work and pay taxes in New York City, but who are not citizens. The law, which would enfranchise more than 800,000 new voters starting in 2023, was heralded as a win by immigrant advocates and many Democratic lawmakers. But it was never going to be implemented without a fight.

A lawsuit against the new city law (Local Law 11) filed by a number of primarily Republican leaders – including Staten Island Borough President Vito Fossella, state Republican Chair Nick Langworthy and New York City Council Member Joe Borelli – is beginning legal proceedings on Staten Island on Tuesday.

The complaint relies on three main arguments; that the noncitizen voting law violates the state Constitution, violates state election law, and is invalid under the municipal home rule law. 

The New York City government, named as a defendant in the suit along with the city Board of Elections and the City Council, will refute each of those claims, arguing that the plaintiffs are relying on selective and too narrow readings of those laws. As one example, the state Constitution, which states that “every citizen shall be entitled to vote,” doesn’t say explicitly that only citizens can vote. “Local Law 11 comports with both the spirit and letter of the law and was supported by this administration because it would bring thousands more New Yorkers into the democratic process and improve the well-being of all city residents,” a spokesperson for the city Law Department wrote in an email. 

Immigrant advocates and other supporters of the law have pointed to the state Constitution, which states that “every citizen shall be entitled to vote,” but doesn’t say explicitly that only citizens can vote.

While the plaintiffs’ argument against the noncitizen voting law is multi-pronged, some legal experts said the case will hinge on that central question of whether the right to vote guaranteed to citizens represents a floor, not a ceiling, for who can be allowed to vote in New York City. “The (state) constitution and the (state election law) refer to guaranteeing the right of citizens to vote,” said Richard Briffault, a professor at Columbia Law School. “The question is, does that preclude going beyond citizens?”

Briffault and others were hesitant to predict how the judge will rule on that question. But the suit isn’t viewed as frivolous. James Gardner, a professor at University at Buffalo’s School of Law, said that the argument being made by the plaintiffs that the right to vote is exclusive to citizens is “certainly not implausible on its face.”

Others watching the case expressed confidence that the noncitizen voting law will be upheld on the basis that the right to vote extended to citizens doesn’t preclude that right from being extended to noncitizens too. “New York is standing on fairly solid ground in asserting its authority to do this,” said Ron Hayduk, a professor at San Francisco State University who studies voting rights for noncitizens across the country. Hayduk also pointed to examples of noncitizens being allowed to vote not only in other towns and cities across the country, but in New York’s own school board elections up until 2002. It’s unclear how the judge might take that into consideration. “I'm not sure how much weight that would carry,” Briffault said, calling it a relatively minor precedent.

Where the plaintiffs might have the best opportunity to successfully challenge Local Law 11 is in their second claim – that the noncitizen voting law violates state election law. The section of state election law states in part that “no person shall be qualified to register for and vote at any election unless he is a citizen of the United States.” 

“That is a bit more of an uphill battle,” said Cesar Ruiz, a legal fellow at LatinoJustice PRLDEF, a defendant intervenor representing nine people who would be enfranchised by Local Law 11, of the state election law.

But the state’s election law also includes an “applicability” measure which says that other laws can supersede any provisions in the election law unless it is explicitly stated in a given provision of the election law that other laws can’t supersede it. Ruiz said they will argue that there is precedent for local laws – and not just state laws – being able to supersede the election law.

The third claim that the plaintiffs make is that the noncitizen voting law is invalid under the Municipal Home Rule Law, which says that a public referendum is needed to pass any law that “changes the method of nominating, electing, or removing an elective officer.” Local Law 11 was passed by the City Council, and didn’t involve any referendum. But that claim, some legal experts said, is unlikely to succeed. “That, I think, is a weak argument,” Briffault said. “City officials are still going to be elected by voters. That’s meant to deal with things like shifting from election to appointment.”

The case is being heard by Ralph Porzio, a Republican Supreme Court judge on Staten Island who was elected in 2018. Asked whether a judge’s politics might affect the ruling, some legal experts said it’s not implausible in the post-Trump era. “Five years ago, I would have pretty confidently said it wouldn't make a difference. Now, I'm not so sure,” Gardner said. “The Trump years really seemed to radicalize Republicans.”

“Judges follow, interpret and apply the law to everyone fairly,” Lucian Chalfen, a spokesperson for the state court system wrote in an email. “Inferring otherwise insults not only the individual judge but the justice system in its entirety.”

No matter the outcome of the case, the fight over New York City’s noncitizen voting law certainly won’t end with Porzio’s ruling. “I don’t see a scenario where either side doesn’t appeal this,” Borelli said.