Thursday, August 21, 2014
Immigration Article of the Day: Reconceiving Citizenship: Noncitizen Voting in New York City Municipal Elections as a Case Study in Immigrant Integration and Local Governance by Lauren Gilbert
Reconceiving Citizenship: Noncitizen Voting in New York City Municipal Elections as a Case Study in Immigrant Integration and Local Governance by Lauren Gilbert, St. Thomas University School of Law July 22, 2014
Abstract: In this paper, I use New York City’s consideration of an amendment to its Charter that would extend voting rights to noncitizens in municipal elections as a case study in immigrant integration and local governance. I argue that such a policy would be consistent with the different meanings of citizenship, national, state, and local, while addressing potential obstacles under federal and state law. I conclude that while neither federal criminal nor immigration law prevents state or local governments from extending the franchise to noncitizens in state or local matters, federal law imposes certain impediments that may deter some noncitizens from registering or that could carry serious immigration consequences for those who vote in violation of federal law.
I argue that New York City’s biggest challenge in moving this issue forward is dealing successfully with two related questions: 1.) why the City Council should be able to decide who "the People" are without approval from Albany and 2.) whether it should attempt to enact Intro 410 without a referendum. Part II examines the role of local government in regulating the lives of immigrants, contrasting enforcement-oriented strategies with those that are more integration-oriented, building on the work of Heather Gerken, Hiroshi Motomura, Cristina Rodríguez, and others. Part III spotlights federal law obstacles to noncitizen suffrage, looking at both federal criminal law and the immigration grounds of inadmissibility and deportability. Part IV focuses on state law obstacles, including New York’s Constitution, its state election law and its home rule provisions. Part V discusses other recent experiences with noncitizen suffrage, both in municipal and school board elections. Part VI provides some thoughts on best practices in moving the issue of noncitizen suffrage in New York City and other locales forward. I conclude that while New York law does not prevent the City Council from enacting Intro 410 without approval from Albany, that a city-wide referendum may be necessary, advisable, or, at the very least, that the City Council needs to engage the people of New York City directly such as through mini-town hall meetings in the 51 districts. New York law is ambiguous enough that good arguments can be made for why neither Albany’s approval nor a city-wide referendum is required. Nonetheless, given New York City’s historic relationship with Albany and the power the State legislature has to preempt local law on election matters, if the City Council attempts to expand the franchise to noncitizen voters without a referendum or comparable measure, it could trigger preemptive action in Albany or lengthy, divisive, and costly battles in the courts.