New York’s Top Court Put an End to Non-Citizen Voting

Not only is Mahmoud Khalil on the verge of being deported, he won’t be able to vote either. Today the New York state supreme court voted 6-1 to end and effort by New York City to give as many as 800,000 non-citizens, including those with green cards, the right to vote in city elections.

New York’s top court has struck down a law that would have let noncitizens vote in New York City elections, with the court’s progressive majority overwhelmingly siding with Republicans who challenged the idea…

“We file some lawsuits that are stretches,” said Joe Borelli, the former Republican minority leader of the New York City Council and one of the plaintiffs who challenged the law. “This one was, from the beginning, an open-shut case.”

The law was originally put in place in 2021 and has been working its way through the courts ever since.

The law, which the New York City Council passed in late 2021, would have allowed city residents with certain legal status – including green cards, work authorization and DACA status – to vote in city elections for mayor, comptroller, public advocate, borough president and the Council.

The law took effect in January 2022, just nine days after Mayor Eric Adams took office. The next day, Republicans led by Staten Island Borough President Vito Fossella filed a lawsuit arguing that New York’s Constitution restricted voting rights in all elections to U.S. citizens and that the law would dilute citizens’ votes. The suit set off a three-year legal battle.

A state Supreme Court judge in Staten Island ruled in their favor in 2022, as did an appellate court last year. The City Council then appealed to the state’s top court.

There really wasn’t much of a case here. Democrats were essentially trying to do an end run around the state constitution which explicitly says, “every citizen shall be entitled to vote at every election for all officers elected by the people.” Democrats argued that was just a suggestion or as they put it: a floor, not a ceiling. The judges (all but one) didn’t buy it.

“Under that interpretation, municipalities are free to enact legislation that would enable anyone to vote – including … thirteen-year-old children,” Chief Judge Rowan Wilson wrote for the majority.

“It is plain from the language and restrictions contained in [the state constitution] that ‘citizen’ is not meant as a floor, but as a condition of voter eligibility: the franchise extends only to citizens whose right to vote is established by proper proofs,” Wilson wrote.

Nevertheless, progressives are disappointed that the state followed the constitution.

Cesar Ruiz, an associate counsel at LatinoJustice PRLDEF who argued the appellate case, said in a statement that the justices’ ruling was “a terrible setback for our immigrant communities who contribute so much to the well-being of the city.”

Roderick M. Hills Jr., a law professor at New York University who signed a legal brief in support of maintaining the law, pointed out that women in New York had been able to vote in state elections before the Constitution was amended to officially allow them to do so.

“The court simply ignored the longstanding principle that voting qualifications for local offices have never been identical to the state constitutional qualifications to vote,” Mr. Hills wrote in an email.

Professor Hills is right that women in New York got the right to vote in 1917, three years before the ratification of the 19th Amendment. However, in that case New York amended its own constitution to make women’s suffrage law. Similarly, New York could in theory amend the state constitution again to make it say something other than what it says now about non-citizen voting. That process would not be easy and would face a lot of political opposition. Still, it would be a legitimate attempt to change the law. What New York City did in 2021 was not.

Vito J. Fossella, the Staten Island borough president, said that the voting law exemplified how some Democratic leaders were out of step with mainstream New Yorkers…

“The ruling really is just a validation of what we have maintained since Day 1, which is that the New York State Constitution is crystal clear on who can and cannot vote.”