Legal Status of Noncitizen Voting in State and Local Elections

In January 2022, New York City enacted Local Law 11, which would have allowed lawful permanent residents and work-authorized noncitizens who had resided in the city for at least 30 days to vote in municipal elections for mayor, city council, borough presidents, comptroller, and public advocate. The law was struck down by a state court in June 2022 on the grounds that the New York State Constitution reserves voting rights to citizens. This opinion examines the broader legal questions raised by the noncitizen voting debate, including whether constitutional amendments or legislative action could authorize noncitizen voting at the local level.

Noncitizen voting has a long history in the United States. From the founding through the early twentieth century, many states and territories allowed noncitizens who had declared their intent to become citizens to vote in all elections, including federal ones. This practice was gradually eliminated through state constitutional amendments between 1900 and 1926. In recent years, a handful of jurisdictions, including several municipalities in Maryland and two towns in Vermont, have authorized noncitizen voting in local elections, reigniting debate about the practice's legality and desirability.

The New York State Constitution, Article II, Section 1, provides that every citizen of the age of eighteen years who has been a resident of the state and county for specified periods shall be entitled to vote. The critical question is whether this provision establishes a floor (minimum qualification) or a ceiling (exclusive qualification) for voter eligibility. If it is a floor, the legislature or municipalities may extend voting rights beyond citizens; if it is a ceiling, only citizens may vote in any New York election.

The state court's decision striking down Local Law 11 interpreted the constitutional provision as establishing an exclusive qualification, reasoning that the constitution's specific enumeration of citizenship as a requirement implies that non-citizens are excluded. However, this interpretation is not universally accepted. Alternative readings argue that the constitution guarantees citizens the right to vote but does not necessarily prohibit the extension of the franchise to others through ordinary legislation, particularly at the local level where home rule authority is broad.

The Municipal Home Rule Law grants New York City and other municipalities significant authority over their own governance. The question is whether the power to define the local electorate falls within this authority. The opinion analyzes the scope of home rule power and concludes that, while home rule grants broad authority over local matters, it is constrained by the state constitution's voter qualification provisions. A constitutional amendment would likely be required to clearly authorize noncitizen voting at the local level, though the opinion acknowledges that reasonable legal arguments exist on both sides.

Federal law adds another layer of complexity. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 makes it a federal crime for a noncitizen to vote in a federal election. However, this prohibition applies only to federal elections, and Congress has not legislated on noncitizen voting in state or local elections. The opinion concludes that federal law does not preempt state or local authorization of noncitizen voting in purely local elections that do not coincide with federal elections on the same ballot.

Under current law, the New York State Constitution likely prohibits noncitizen voting in all elections, including purely local ones. A constitutional amendment would be the most legally secure path to authorizing noncitizen voting at the local level. Absent such an amendment, legislative action authorizing noncitizen voting faces significant constitutional challenge. However, the question is not settled, and future litigation or a constitutional amendment process could change the legal landscape.

This opinion is relevant to municipalities across New York and other states that are considering extending voting rights to noncitizens in local elections. It provides a roadmap for advocates who may pursue a constitutional amendment and identifies the legal obstacles that must be addressed. Election administrators should be aware of the federal prohibition on noncitizen voting in federal elections and should ensure that any local noncitizen voting program includes adequate safeguards to prevent noncitizens from voting on federal races. Immigration attorneys should advise noncitizen clients that participation in unauthorized voting can have severe immigration consequences, including deportation and bars to future immigration benefits.