Proposals in Oakland and San Jose to allow people without citizenship to vote in local elections are bad policy, potentially legally flawed and politically misguided.
One of the key privileges of citizenship is the right to vote. While we as a nation should cherish our immigrant heritage, we should honor the sanctity of our elections by limiting voting to those who have cleared the hurdle of citizenship.
The 26th Amendment of the U.S. Constitution extends the right to vote in federal elections to “citizens of the United States, who are eighteen years of age or older.” And federal law specifically forbids non-citizens from voting in federal elections.
For local elections, Article II, Section 2 of the California Constitution states, “A United States citizen 18 years of age and resident in this State may vote.” Not a U.S. resident, a citizen.
Citing the California Constitution and state laws, a Superior Court judge in San Francisco last month threw out that city’s ordinance allowing school-age children’s non-citizen parents, including undocumented immigrants and legal residents, to vote in school board elections.
“This is not a difficult or close question,” wrote Judge Richard Ulmer in a follow-up order in which he refused to stay his decision while the city appeals it. Whether a higher court agrees remains to be seen.
Oakland Measure S
Meanwhile, the Oakland City Council is asking voters to let it similarly extend voting rights in school board elections to non-citizens who are city residents and who are parents, legal guardians or legal caregivers of “a qualifying minor child.”
Measure S faces a legal challenge this coming week seeking to pull it off the Nov. 8 ballot. As problematic as the measure is, it would be premature to remove it from the ballot while the legal fight over the similar San Francisco measure is pending before an appellate court. If Measure S does remain on the ballot, voters should reject it.
For Oakland voters, this should not be only an issue of whether non-citizen voting is legally permissible under the state Constitution. Even if the courts permit it in future rulings this fall, there’s also a question of whether non-citizen voting is good policy. It’s not.
We need to update our immigration laws to provide a quicker pathway to citizenship for far more people. But that’s a separate debate, and the failure to resolve it should not be a reason to open our elections to anyone living here no matter their legal status.
Beyond that, the Oakland measure is replete with other troubling details. For example, what constitutes a qualifying minor child would be left to the City Council to decide. And the rationale for extending the vote to only parents, but not others without children, makes no sense; for citizen voters, we don’t restrict decisions about picking education leaders only to parents.
San Jose effort
In San Jose, the City Council should put the brakes on efforts there that would extend voting rights to non-citizens. Exactly what council members Magdalena Carrasco and Sylvia Arenas will propose to put before voters in a future election is undetermined, but it seems they want to open city elections, rather than school board elections, to non-citizens.
The same fundamental policy and state constitutional questions would apply. The legal uncertainty has prompted Mayor Sam Liccardo to wisely recommend postponing the discussion until the courts sort out what’s lawful.
The issue in all three cities is also a political landmine. These measures are being proposed in left-leaning cities because progressives expect they will do well at the polls with non-citizen voters. But at a time when the legitimacy of elections is under attack, and fear-mongering about immigrants seems to be on the upswing, these misguided “Left Coast” attempts to expand voting rights are sure to provide fodder for right-wing propagandists.
To be sure, the issue is not unique to California. On June 27, a New York judge, citing barriers in that state’s constitution, struck down a New York City law passed in November that would have let noncitizens who are permanent legal residents or authorized to work in the country vote in municipal elections.
San Francisco case
A month later, Ulmer overturned San Francisco’s ordinance, which the city’s voters had authorized in 2016. The city had argued that the California Constitution allowed expansion of voting rights because it says that U.S. citizens 18 years of age “may” vote, suggesting that non-citizens “may also” vote.
The judge didn’t agree. “Had (the constitution) instead used the mandatory word ‘shall,’ resident citizens of age would be legally required to vote,” Ulmer wrote. By the city’s logic, he wrote, “children under 18 and residents of other states ‘may also’ vote in California elections, which our constitution does not allow.”
Well, actually, Berkeley voters in 2016 and Oakland voters in 2020 passed measures allowing 16- and 17-year-olds to cast ballots in school board elections. The measures have yet to be implemented. And, as Ulmer’s ruling indicates, those measures are also ripe for legal challenge.