Court Blocks 800,000 Non-Citizens From Voting in New York City Municipal Elections

Dozens of recently arrived illegal immigrants camp outside of the Roosevelt Hotel, which has been made into a reception center, as they try to secure temporary housing in New York City, on Aug. 1, 2023. Spencer Platt/Getty Images

The second-highest court in the state of New York has ruled that a law enacted by the New York City Council that allowed non-citizens to vote in municipal elections is null and void. Implementation of NYC Local Law No. 11 of 2022 was struck down and permanently enjoined by the Appellate Division of the Supreme Court (ADSC) on Feb. 21, 2024.

In the case’s latest legal round, the appellate court upheld the decision of the New York Supreme Court because the local law violated the state constitution and the Municipal Home Rule Law.

The original lawsuit (Vito J. Fossella et al. v Eric Adams) filed in January 2022 also alleged that the New York City measure violated New York state’s election law, an allegation that the ADSC rejected.

One of the plaintiffs’ main contentions was that the new local law “changed the method by which all municipal elective officers are elected by effectively replacing the existing electorate with a differently constituted population,” thereby violating the Municipal Home Rule Law.

The ADSC ruling can now be appealed in New York State’s highest court, the Court of Appeals. No decision to pursue an appeal has been announced.

Mr. Fossella, a former six-term Republican congressman, currently serves as president of Staten Island borough. Mr. Adams, a Democrat, is the mayor of New York City.

Several other registered voters, GOP officeholders, as well as the state and national party committees joined Mr. Fossella as co-plaintiffs, while Mayor Adams and the City of New York legal department were joined by some left-leaning activist groups. An amicus brief was filed by the New York Civil Liberties Union in support of the defendants, and a group of non-citizens was permitted by the ADSC to enter the legal fray as intervenors.

‘New Class’ of Voters

The ADSC wrote in its decision that the New York City law created a new class of voters called “municipal voters,” a large group of non-citizens that was enfranchised by the city council to vote for the offices of mayor, city council member, comptroller, public advocate, and borough president. They remain ineligible to vote in state or federal elections.

The Fossella complaint said that the addition of 800,000 non-citizens to the voting rolls would comprise nearly 15 percent of the city’s five million registered voters, a percentage that exceeds the margin of victory in many municipal elections.

The situation has been exacerbated by the arrival of 100,000 new migrants in the city over the last year and the push to grant them work permits.

Elements of the city’s legal strategy included challenging the plaintiffs’ standing to bring a lawsuit and questioning the definitions and contexts of terms such as “citizen” and “people.”

The city attacked the plaintiffs’ assertion that adding thousands of non-citizen voters to the voter pool dilutes the vote of citizens, contending the addition does not meet the legal standard of a “cognizable harm.”

The ADSC concurred and also deemed as “too conjectural” the allegation by Mr. Fossella’s co-plaintiffs—the Republican Party of the State of New York, and the Republican National Committee—that this inflation of the city’s voter pool would materially affect the likelihood of electing Republicans.

In determining that the officeholders among the plaintiffs had standing, the court said, “Those plaintiffs have a cognizable interest in ensuring that the final vote tally accurately reflects the legally valid votes cast ... and an inaccurate vote tally is a concrete and particularized injury to candidates.”

Staten Island Borough President Vito Fossella at a protest outside a Catholic school that was converted into a shelter for illegal immigrants, on Aug. 29, 2023. Courtesy of the Office of the Staten Island Borough President

According to the new city law, a “municipal voter” must be a resident of the city for at least 30 days before the election and/or be authorized to work in the United States.

The ADSC affirmed that Article 2, Section 1 of the New York State Constitution provides that only citizens can vote, meaning U.S. citizens. The court also found that the action of the New York City Council extending the vote to non-citizens required a public referendum, which was never held. The omission rendered the new law null and void, the court said.

The court also affirmed that Section 3 of the Public Officers Law states that for a person to hold elective office, that person must be a U.S. citizen. It held that the city law entitles non-citizens to be elected and hold elective office, thereby illegally reshaping the election process.

Ideological Twist to Advance the Progressive Agenda

Justice Lillian Wan, an appointee of progressive Democrat Governor Kathy Hochul, was the lone dissenter in the 3-1 decision nixing the new city law.

In her dissent, Justice Wan wrote, “The plaintiffs failed to establish that the non-citizen voting law was unconstitutional beyond a reasonable doubt ... The state constitution does not prohibit municipalities from choosing to confer a limited right to vote to persons beyond those expressly entitled to vote in Article 2, Sect. 1.”

Quoting from precedent, Justice Wan wrote, “Courts are not supposed to legislate under the guise of interpretation ... and (should) leave it to the Legislature to correct evils if any exist.”

Again, citing precedent, she wrote, “Under the liberal construction clause (of the New York State Constitution), rights and powers will be construed in favor of the local unit ... and therefore doubtful powers should be allocated to the local governments.”

“Local problems should be dealt with locally,” Justice Wan said.

New York City Law Challenged From Another Direction

The Public Interest Legal Foundation (PILF), a national organization dedicated to restoring integrity to America’s elections by cleaning up voter rolls, filed a similar suit in 2022 against the New York City Board of Elections alleging that the city’s non-citizen voter law violates the 15th Amendment of the U.S. Constitution and the Voting Rights Act.

A PILF press release announcing the suit said the plaintiffs are four black American citizens who are registered to vote in New York City.

The plaintiffs provided evidence that the sponsors of the legislation made explicit public statements, which they claim show an impermissible racial purpose behind the law, intentionally designed to abridge the voting strength of black voters.

The complaint states that of the one million foreign nationals in New York City, approximately 480,000 are Hispanic and 343,000 are Asian.

PILF’s president J. Christian Adams stated in the press release, “When election laws are passed with a racial motive, they violate the 15th Amendment and are invalid ... Legislators made statements that this was about race. We are confident the court will rule in our favor.”