{"id":12853,"date":"2022-01-05T10:36:46","date_gmt":"2022-01-05T15:36:46","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/crcl\/?p=12853"},"modified":"2022-01-30T10:19:06","modified_gmt":"2022-01-30T15:19:06","slug":"extending-the-franchise-for-americans-in-waiting-municipal-voting-rights-for-noncitizens","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/extending-the-franchise-for-americans-in-waiting-municipal-voting-rights-for-noncitizens\/","title":{"rendered":"Extending the Franchise for \u201cAmericans in Waiting\u201d: Municipal Voting Rights for Noncitizens"},"content":{"rendered":"

By Guest Contributor Fatoumata Waggeh<\/strong><\/em><\/p>\n

Fatoumata Waggeh, Esq.<\/strong><\/em><\/b> is a Litigation Associate. She is a recipient of her firm\u2019s \u201cPro-Bono All-Star Award\u201d for her energetic commitment to pro-bono work for justice. Fatoumata completed her undergraduate education at New York University (NYU) and her law degree at the University of Pennsylvania Law School. Prior to law school, she was a Civic Organizer at an African immigrant rights organization. Fatoumata <\/em>is passionate about local politics, civil liberties, international law, racial justice and impact litigation.<\/em><\/p>\n

\n

My mother exercised her right to vote in 2009, exactly twenty years after immigrating from The Gambia to the Bronx, New York.1<\/a><\/sup>Throughout this paper, I will use the terms \u201cImmigrant New York,\u201d and \u201cImmigrant New Yorkers\u201d which is borrowed from the NYC\u2019s Mayor\u2019s Office of Immigrant Affairs Annual Report, State of Our Immigrant City, at 6 (March 2018) https:\/\/www1.nyc.gov\/assets\/immigrants\/downloads\/pdf\/moia_annual_report_2018_final.pdfA term coined by Hiroshi Motomura (Americans in Waiting: The Lost Story of Immigration and Citizenship in the United States<\/em> by Hiroshi Motomura, Oxford University Press Inc. (2006))<\/span><\/span><\/span>\u00a0It would take my father an additional five years to vote \u2013 a privilege he so eagerly awaited given his love for politics and inherent belief in American democracy, having escaped the verge of a dictatorial regime in the late 1980s. While my mother was just a year short of voting for the first African-American President of the United States, citizenship afforded her the opportunity to vote for the Mayor of a City she grew to call home. When my siblings and I turned eighteen, my parents consistently narrated to us the importance of exercising our civic duty \u2013 voting, they insisted, was an empowering political tool. It would take decades of uncertain immigration loopholes and living in the shadows before my parents were able to fully exercise their political power and voice, a sound privilege they revered.\u00a0\u00a0<\/span><\/p>\n

This paper\u00a0will provide a critical analysis of how localities, particularly cities, can be engineers of common-sense and just immigration reform through implementing policies and laws. Specifically, I will explore the efforts of the New York City Council to extend the franchise to noncitizen New Yorkers, through legislation <\/span>Intro 1867<\/span><\/em>. I will demonstrate the viability and constitutionality of municipal voting rights and insist that the participation of noncitizens in local democracy is a key and vigorous stepping stone to comprehensive immigrant reform. While federal supremacy and the Plenary Power Doctrine have guided our immigration system, localities are becoming powerful spaces for immigration regulation and innovation.2<\/a><\/sup>Juliet P. Stumpf, States of Confusion: The Rise of State and Local Power Over Immigration<\/em>, 86 N.C.L. Rev. 1557, 1559 (2008)<\/span><\/span>\u00a0 Primarily, as the power of local government is immense, my paper seeks to encourage the implementation of municipal voting rights in localities throughout the United States.\u00a0<\/span><\/p>\n

A Brief Historical Narrative: Local Actors, Power and Immigration<\/strong><\/p>\n

As the Constitution is primarily silent on the rights and responsibilities of noncitizens, the regulation and control of noncitizens has historically been deemed the authority of the federal government.3<\/a><\/sup>Stumpf, supra note<\/em> 2, at 1564 <\/span><\/span>\u00a0 Our Constitutional order has historically identified immigration as a matter of foreign policy, void of any domestic regulation and a traditional power of the federal government.4<\/a><\/sup>Id<\/em>. at 1564<\/span><\/span> In early-colonial America, states were able to exercise control over immigration affairs; specifically, it functioned as a concurrent power exercised between the state and federal government.5<\/a><\/sup> Id<\/em>. at 1569<\/span><\/span> Arguably, this was a period in which America\u2019s immigration apparatus was less racialized and functioned primarily as a British imperial tool of westward expansion.\u00a0<\/span><\/p>\n

Stemming from the Marshall Court\u2019s establishment of judicial supremacy, which advanced a doctrine of discovery, in the late nineteenth century there was a shift to a rise of federal supremacy over immigration affairs, birthing the Plenary Power Doctrine. In <\/span>Chy Lung v. Freeman<\/span><\/em>, the Court struck down a California statute regulating the migration of Chinese nations, insisting that the federal government reserved supreme powers over immigration affairs.6<\/a><\/sup>Id<\/em>. at 1571<\/span><\/span>\u00a0 In 1889, the Court further developed such a jurisprudence in <\/span>Chae Chan Ping v. United States<\/span><\/em>, in which the Court asserted that the \u201c\u2026political branches had nearly unlimited power to exclude non-citizens seeking entry into the United States.\u201d7<\/a><\/sup>Id<\/em>. at 1572 <\/span><\/span> The Court located this power in the inherent sovereignty of the federal government \u2013 limitless power in which the government is not constrained by the Constitution or other legal source.8<\/a><\/sup>Id<\/em>. at 1572 <\/span><\/span>\u00a0<\/span><\/p>\n

Here, the Court was articulating the Plenary Power Doctrine, a jurisprudence the Court invariably advances in the areas of national security, foreign affairs, Indian affairs and immigration affairs.9<\/a><\/sup>Stumpf, supra note 2<\/em>, at 1572 <\/span><\/span> In <\/span>United States v. Curtiss-Wright Export Corp<\/span><\/em>., the Court elucidated the doctrine; it avers that the Constitution\u2019s restraints on the federal government is only true for internal affairs and federal authority operates independently of the Constitution.10<\/a><\/sup>Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Powers Over Foreign Affairs<\/em>, 81 Tex. L. Rev. 1, 2 (2002)<\/span><\/span> Constitutional principles of separation of powers, enumerated powers and federalism are controlling only for domestic affairs.11<\/a><\/sup>Id<\/em>. at 8<\/span><\/span> Such a power over external affairs is inherent in the nation\u2019s existence as a sovereign \u2013 it is an extra-constitutional source of power.12<\/a><\/sup>Id<\/em>. at 8<\/span><\/span> As such, when reviewing decisions on issue-areas, such as immigration, the Court must exercise limited judicial review in order to assert and revere federal authority.13<\/a><\/sup>Id<\/em>. at 8<\/span><\/span> The\u00a0 doctrine abolished all forms of Constitutional protections and obligations for noncitizens, as courts would systematically defer to the political branches; freedoms such as free speech and Equal Protection became inaccessible for immigrants.14<\/a><\/sup>Stumpf, supra note 2<\/em>, at 1573 <\/span><\/span> This enabled federal power to preempt state action and resulted in the annihilation of states as actors of immigration affairs.<\/span> 15<\/a><\/sup>Id<\/em>. at 1573<\/span><\/span><\/p>\n

In the late 1970s, as America witnessed the development of a robust Equal Protection jurisprudence, \u201cthe domestication of immigration law\u201d was reincarnated.16<\/a><\/sup>Id<\/em>. at 1583<\/span><\/span> This period provides us with the contemporary rise of cities, states and other localities controlling and regulating noncitizens.17<\/a><\/sup>Id<\/em>. at 1562<\/span><\/span> As federal immigration policy expanded into areas that were distinctly of state and local concerns \u2013 employment, welfare and criminal law \u2013 this resulted in the rise of local power over immigration affairs.18<\/a><\/sup>Id<\/em>. at 1583<\/span><\/span> Virtually, localities began to exercise immigration influence, as immigration policy and enforcement encroached into the traditional areas of the state.19<\/a><\/sup>Id<\/em>. at 1583<\/span><\/span>\u00a0Immigration became codified as a domestic issue that was no longer solely a border control project \u2013a foreign affairs issue\u2013 but inherently the regulation of the migrant labor market.20<\/a><\/sup>Stumpf, supra note 2<\/em>, at 1584 <\/span><\/span> In 1974, Congress amended the <\/span>Farm Labor Contractor Registration Act (FLCRA)<\/span><\/i>, which \u201c..prohibit[ed] farm labor contractors from employing aliens without work authorization.\u201d21<\/a><\/sup>Id<\/em>. at 1583<\/span><\/span>\u00a0Subsequently, in 1986 Congress passed the <\/span>Immigration Reform and Control Act (ICRA)<\/span><\/i>, with the objective of \u201c..curb[ing] unauthorized immigrants by sanctioning employers who hired undocumented immigrants.\u201d22<\/a><\/sup> Id<\/em>. at 1583<\/span><\/span><\/p>\n

In 1996, Congress redesigned welfare law\u2013 transforming immigration from foreign policy to domestic affairs\u2013 through its passage of the <\/span>Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA)<\/span><\/i>, which \u201c\u2026sought to deter legal immigrants from relying on social services by permitting states to deny a range of public benefits to noncitizens.\u201d23<\/a><\/sup> Id<\/em>. at 1584<\/span><\/span> PRWORA empowered states to deny benefits to immigrants and also enforced new measures to prevent an admitted person from becoming a \u201cpublic charge.\u201d24<\/a><\/sup> Id<\/em>. at 1585<\/span><\/span> Also, it mandated states to report to the federal immigration agency the information of undocumented residents.25<\/a><\/sup> Id<\/em>. at 1585<\/span><\/span> Traditionally, welfare law, policy and design remained reserved for the states; the introduction of federal control of it, through immigration, resulted in the dispensing of immigration power to states.26<\/a><\/sup>Stumpf, supra note 2<\/em>, at 1586<\/span><\/span> In the ability to report undocumented individuals, enforcement and regulation of immigration law was redefined as a concurrent power shared with state actors.27<\/a><\/sup> Id<\/em>. at 1586<\/span><\/span><\/p>\n

As the crimmigration apparatus was built, resulting in the over-policing and rampant criminalization of poor immigrants of color, immigration law was reinvented into the sphere of state control and regulation.28<\/a><\/sup> Id<\/em>. at 1587<\/span><\/span> Stemming from the mid-1980s, criminal law norms were imported into immigration law, fueling a deportation machine:29<\/a><\/sup> Id<\/em>. at 1587<\/span><\/span> \u201c\u2026minor state and federal crimes\u2026trigger[ed] deportation, including theft, trafficking in fraudulent documents, tax evasion, forgery\u2026and offenses related to skipping bail.\u201d30<\/a><\/sup> Id<\/em>. at 1587<\/span><\/span> Statutory definitions of crimes by states became key grounds for upholding deportation for a conviction.31<\/a><\/sup> Id<\/em>. at 1593<\/span><\/span> Federal immigration actors began to inspect state statutory definitions of crimes to establish a claim for deportation either through the crime involving moral turpitude (CMIT) or aggravated felony, as construed under the Immigration and Nationality Act.32<\/a><\/sup>Stumpf, supra note 2<\/em>, at 1593<\/span><\/span> As such, immigration regulation inherently shifted to state actors, as \u201c[state] legislators and courts can often affect whether the deportation grounds apply by adjusting the scope of the definition or length of the sentence.\u201d33<\/a><\/sup> Id<\/em>. at 1593<\/span><\/span>\u00a0 Essentially, the crimmigration infrastructure is maintained by federally-defined immigration law intersecting with state-defined criminal law, congenitally restoring state power to immigration law and rebirthing its domestication:34<\/a><\/sup> Id<\/em>. at 1594<\/span><\/span> \u201c\u2026the very fabric of crimmigration law combines federal and state law: the warp is federally-defined immigration law and the woof is state-defined criminal law.\u201d35<\/a><\/sup>Id<\/em>. at 1594<\/span><\/span><\/p>\n

Today, cities and states are concurrent actors of immigration law, control and enforcement.36<\/a><\/sup>Id<\/em>. at 1559<\/span><\/span>\u00a0 As the constitutional and historical narrative stated above insists, localities are empowered to exercise greater control over the movement, social circumstances and criminalization of immigrant persons.37<\/a><\/sup>Id<\/em>. at 1559<\/span>\u00a0<\/span> Respectively, as \u201cimmigrant integration is a distinctly local matter,\u201d38<\/a><\/sup>Lauren Gilbert, Reconceiving Citizenship: Noncitizen Voting in New York City Municipal Elections as a Case Study in Immigrant Integration and Local Governance, <\/i>J. on Migration & Hum. Sec. 223, 228 (2014)<\/span><\/span> and the power of local government is immense, localities can reach its migrant residents directly and effectually<\/span>.39<\/a><\/sup>Id<\/em>. at 228<\/span> After all, \u201c[it] is [at] the local level that people work, seek police protection, send children to school, and advocate for safer, healthier neighborhoods.\u201d40<\/a><\/sup>Id<\/em>. at 228<\/span><\/span> In essence, localities are actively managing and designing the daily realities of immigrants. Particularly, as the federal government\u2019s ability to create a broad and dynamic solution for immigration reform remains weak, \u201cthe domestication of immigration law\u201d empowers localities to either fix a broken system or further cripple immigrant rights.41<\/a><\/sup>Id<\/em>. at 228<\/span><\/span> Appropriately, cities and states have assumed such roles:42<\/a><\/sup>Id<\/em>. at 228<\/span><\/span> \u201c\u2026state and local governments have taken the regulation of immigration into their own hands.\u201d43<\/a><\/sup>Id<\/em>. at 228<\/span><\/span><\/p>\n

Historical, Constitutional and Structural Debates Surrounding Municipal Voting Rights<\/strong><\/p>\n

Municipal voting rights is part of a larger historical trajectory of the expansion and contraction of voting rights in the United States.44<\/a><\/sup>Jamin B. Raskin, Legal Aliens, Local Citizens: The Historical, Constitutional and Theoretical Meanings of Alien Suffrage<\/em>, 141 U. Pa. L. Rev. 1391, 1393 (1993)<\/span><\/span> The American Constitutional order was formulated by property-owning white men who furthered and participated in the racist institutionalization of African slavery.45<\/a><\/sup>Id<\/em>. at 1393<\/span><\/span> As such, the franchise proactively excluded the interests of \u201c\u2026people from political membership on the basis of property, wealth, race and gender.\u201d46<\/a><\/sup>Id<\/em>. at 1393<\/span><\/span> It was designed to further the privileges of a limited subset of society, resulting in a contraction of voting rights to a limited and select few.47<\/a><\/sup>Id<\/em>. at 1393<\/span><\/span> This enabled the facilitation of the American imperial project \u2013 the dispossessing of Native lands and forced labor of enslaved Africans for the new nation\u2019s economic prosperity. Gradually, the political franchise was expanded to include those formerly excluded:48<\/a><\/sup>Id<\/em>. at 1393<\/span><\/span> \u201cWe have seen the franchise extend over the years to include people without taxable income, African-Americans, women.\u201d 49<\/a><\/sup>Id<\/em>. at 1393<\/span><\/span><\/p>\n

While the franchise secluded women, enslaved Africans, indigenous persons and non-property owners, alien suffrage for white male immigrants was also part of the early American design.50<\/a><\/sup>Raskin, supra note 44<\/em>, at 1397<\/span><\/span> During the 19<\/span>th<\/span> Century, white male immigrants were able to exercise the right to vote in local elections in at least twenty-two states or territories.51<\/a><\/sup>Id<\/em>. at 1397<\/span><\/span> A surge in anti-immigrant rhetoric at the turn of the 20<\/span>th<\/span> Century resulted in its decline \u2013 Arkansas was the last state to end it in 1926.52<\/a><\/sup>Id<\/em>. at 1397<\/span><\/span> While warfare has historically been the political climax to open the franchise for second-class citizens and other marginal groups\u2013 as is evident in the suffrage of African-Americans and women\u2013 for alien suffrage, it has resulted in its abolishment.53<\/a><\/sup>Id<\/em>. at 1398<\/span><\/span>\u00a0 Specifically, the xenophobia fueled by World War I led to the death of the practice.54<\/a><\/sup>Id<\/em>. at 1398<\/span>\u00a0<\/span>\u00a0<\/span><\/p>\n

After American Independence, the practice continued55<\/a><\/sup>Id<\/em>. at 1399<\/span>\u00a0<\/span> and immigrants who \u201c..met the appropriate property, wealth, race, religion, and gender tests possessed the right to vote.\u201d56<\/a><\/sup>Raskin, supra note 44<\/em>, at 1399<\/span><\/span> States that institutionalized the practice allowed such persons to \u201c\u2026[vote] at all levels of American government, thereby turning them, explicitly or implicitly into \u2018citizens\u2019 of the state itself.\u201d57<\/a><\/sup>Id<\/em>. at 1397<\/span><\/span> Inherently, states were empowered to recognize and construct their own definitions of political-membership and citizenship, which was constructed in a manner different from the national government.58<\/a><\/sup>Id. at 1398<\/span><\/span> This is a reflection of American federalism:59<\/a><\/sup>Id. at 1397<\/span><\/span> \u201c\u2026a period of American federalism of states as sovereign political entities.\u201d60<\/a><\/sup>Id. at 1397<\/span><\/span> During such a period, three different theories of citizenship governed states\u2019 implementation of the practice: citizenship as presence, citizenship as integration and citizenship as standing.61<\/a><\/sup>Id. at 1398<\/span><\/span> Citizenship as presence insists that all persons who engage in the communal life of the local community are citizens.62<\/a><\/sup>Raskin, supra note 44, at 1398<\/span><\/span> Citizenship as integration asserts that assimilating aliens to local society is a public policy<\/span>;63<\/a><\/sup>Id. at 1398<\/span> in contrast, citizenship as standing suggests that \u201c\u2026the right to vote is an emblem of public recognition and respect even more than it is an instrument for exercising political power.\u201d64<\/a><\/sup>Id. at 1398<\/span><\/span><\/p>\n

Arguably, as Raskin suggests, the practice of suffrage for noncitizens in early America was fundamentally a political tool to maintain and further white male power within the political apparatus. It existed primarily for the development of the American colonial project and it was during a time in which immigration was not racialized. Inherently, as Raskin highlights, the practice was sustained for such a long period of time because it did not implicate the racial and gender questions \u2013identity-politics questions\u2014 that it would today. Today, migrants to the United States represent a color of nations and identities \u2013 noncitizen New Yorkers are not solely white European men. Also, in contemporary America, our crimmigration system, as Stumpf gestures, has birthed a racialized and derogatory image of who is an immigrant \u2013 a caricature that paints immigrants as criminals threatening our national security and depriving benefits and other privileges from the American people.\u00a0 A national government that has vigorously insisted on the institutionalization of border control, refugee entry restrictions and the amelioration of protected status for immigrants has further stigmatized immigrants and contributed to the dangerous public image of immigrants. Given the history of noncitizen suffrage in early American history, municipal voting rights are in fact feasible. After all, as Raskin argues, it was a practice that was part of the American governing structure and was widely-accepted by many states. However, a hurdle to its implementation is the stereotypical perceptions of who is an immigrant and the effects that immigrants have on American society.\u00a0<\/span><\/p>\n

As the history of noncitizen suffrage avers, state citizenship is a concept that has been established in the Constitution and affirmed by Supreme Court precedent.65<\/a><\/sup>Gilbert, supra note 38, at 235<\/span> <\/span>The Supreme Court,\u00a0 federal courts and state courts did not declare alien suffrage unconstitutional while it was practiced in early America.66<\/a><\/sup>Raskin, supra note 44, at 1417 <\/span><\/span> Additionally, as the 14<\/span>th<\/span> Amendment was instrumental in constitutionalizing national citizenship; in so doing, it did not abolish state citizenship, rather it preserved it.67<\/a><\/sup>Gilbert, supra note 38, at 235 <\/span><\/span> Essentially, \u201c\u2026it, both guaranteed and reaffirmed state citizenship\u2026[and] it also recognized state citizenship as distinct from national citizenship.\u201d68<\/a><\/sup>Id. at 235 <\/span><\/span> The Supreme Court has consistently approved that American citizenship is multitudinous:69<\/a><\/sup>Id. at 235 <\/span> <\/span>states and localities have the power to \u201c\u2026extend greater protections to members of their communities, as long as federal baselines are met.\u201d70<\/a><\/sup>Id. at 235 <\/span><\/span> In <\/span>Dred Scott v. Sandford<\/span><\/em>, the Supreme Court maintained state citizenship;71<\/a><\/sup>Raskin, supra note 44, at 1417<\/span><\/span> for the Court, local citizenry is \u201c\u2026a [right] of citizenship which a State may confer within its own limits\u201d \u2013 distinguishable from national citizenship.72<\/a><\/sup>Id. at 1417<\/span><\/span> The Court states, \u201cEach state may confer [all rights and privileges of the citizen of a state] upon an alien, or any one it thinks proper\u2026yet he would not be a citizen in the sense in which that word is used in the Constitution of the United States.\u201d73<\/a><\/sup>Id. at 1417<\/span><\/span> It further recognizes the existence of noncitizen suffrage to uphold its argument on state citizenship.74<\/a><\/sup>Id. at 1417<\/span><\/span> Basically, the Court asserts that the Constitution governs national personhood \u2013 states are empowered to establish distinct notions of personhood.75<\/a><\/sup>Id. at 1417<\/span><\/span>\u00a0<\/span><\/p>\n

Clearly, localities are within their discretion to broaden their scope of protections, granting them the authority to shape independent understandings of citizenship.76<\/a><\/sup>Gilbert, supra note 38, at 235<\/span><\/span> While cases such as <\/span>Dred Scott v. Sandford<\/span><\/em> are viewed skeptically within our constitutional canon on equal rights, its principles on state citizenship are constant.77<\/a><\/sup>Raskin, supra note 44, at 1417<\/span><\/span> Also, Supreme Court precedent suggests that states are the prime engineers of their governing structures.78<\/a><\/sup>Gilbert, supra note 38, at 235<\/span><\/span> This suggests the constitutionality of <\/span>Intro. 1867<\/em>,<\/span> as states are within their powers to construct separate meanings of citizenship<\/span>,79<\/a><\/sup>Id. at 235<\/span> as long as \u201c\u2026federal baselines are met.\u201d80<\/a><\/sup>Id. at 235<\/span> <\/span> New York City and other localities are empowered to broaden the protection and privileges of a citizen by including the municipal voter, as national citizenship is distinct from state citizenship.81<\/a><\/sup>Id. at 235<\/span> <\/span> After all, the fundamental charge in the 14<\/span>th<\/span> Amendment is that United States citizens are all persons who are born or naturalized in the country are citizens of the nation and their respective state \u2013 it is intrinsically silent on state citizenship.82<\/a><\/sup>Id. at 235<\/span> <\/span>\u00a0\u00a0<\/span><\/p>\n

Furthermore, as states may design independent citizenry schemes, the Constitution also does not specify any qualifications for voting in state elections.83<\/a><\/sup>Raskin, supra note 44, at 1419<\/span><\/span> A textualist reading of the Constitution demonstrates such a silence.84<\/a><\/sup>Id. at 1419<\/span><\/span> Under Article 2, Section 1, Clause 5, the founders detail the requirements for engagement in federal politics; specifically, citizenry as a requirement for Presidency.85<\/a><\/sup>Id. at 1419<\/span><\/span>\u00a0 Such a citizenry requirement is turned in Article 1, Section 2, Clause 2 for election to the House of Representative \u2013 enabling political leadership by citizens and naturalized persons of the nation.86<\/a><\/sup>Id. at 1420<\/span><\/span> Additionally, the Seventh Amendment states \u201c\u2026that the United States Senators shall be elected \u2018by the people\u2019 of the states and that the \u2018electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.\u2019\u201d87<\/a><\/sup>Id. at 1420<\/span><\/span> In all of the above provisions, which are the foundation of our Constitutional electoral rights, state voting and citizenry is primarily silent.88<\/a><\/sup>Id. at 1419<\/span><\/span> Even if narrowly construed, the text of the Constitution does not explicitly define state voting schemes:89<\/a><\/sup>Raskin, supra note 44, at 1421<\/span> <\/span>\u201cIt can be concluded from the juxtaposition of the Framer\u2019s specific and varying constitutional conditions for federal office-holding and their complete silence as to a citizenship qualification for federal voting that they did not intend to create a U.S. citizenship suffrage qualification.\u201d90<\/a><\/sup>Id. at 1421 <\/span><\/span> In addition, states are also protected against the federal government91<\/a><\/sup>Gilbert, supra note 38, at 229<\/span><\/span> \u2013 \u201c\u2026constitutional laws protects states against commandeering by the federal government.\u201d92<\/a><\/sup>Id. at 229<\/span><\/span> Local governments are in fact autonomous93<\/a><\/sup>Id. at 229<\/span><\/span> \u2013 they may exercise a totality of freedom as long as \u201c\u2026a state\u2019s constitution or laws provide.\u201d94<\/a><\/sup>Id. at 229<\/span><\/span> Thus,\u00a0 municipal voting rights\u2019 legality rests primarily on the authority that the local representatives can derive from the state constitution and other laws to enact it.95<\/a><\/sup>Id. at 231<\/span><\/span> Such a silence in the Constitution conveys that state constitutions and electoral law centrally govern the legality of the municipal voter category.96<\/a><\/sup>Id. at 231<\/span><\/span>\u00a0\u00a0<\/span><\/p>\n

The Case for Municipal Voting Rights in New York City and Other Localities<\/strong><\/p>\n

On December 10, 2021, the New York City Council triumphantly passed <\/span>Intro. 1867<\/span><\/em>, legislation to institutionalize municipal voting rights \u2013 extending the City\u2019s franchise for over 1 million immigrant New Yorkers. Sponsored by thirty-six of the Council\u2019s fifty-one members, the bill aims to create a new category of municipal voter. A municipal voter is defined as any lawful permanent residents and persons authorized to work in the United States who is a resident of the City and will have been a resident for 30 consecutive days or longer by the date of the election. The bill perseveres equality between noncitizen voters and citizen voters. It states, \u201c\u2026eligible municipal voters shall have the right to vote in municipal elections and shall be entitled to the same rights and privileges as U.S. citizen voters.\u201d Now, noncitizen residents will have the power to actively shape New York City\u2019s governing structure. Essentially, the legislation empowers them to build and harness their political power. This privilege will afford them the opportunity to interact with municipal institutions, build political pipelines and potentially, vote-in elected officials. \u201cImmigrant New York\u201d will now have a direct opportunity to influence the City that it has for so long contributed to culturally, socially and financially.<\/span><\/p>\n

The New York City legal apparatus supports the passage of <\/span>Intro. 1867<\/span><\/em>. Although the New York State Constitution protects the voting rights of all United States citizens who are over the age of eighteen and satisfy New York residency, it does not limit participation in the franchise to such persons.97<\/a><\/sup>Gilbert, supra note 38, at 230<\/span><\/span> In contrast, the New York State Election Law specifically limits the franchise \u2013 for all elections \u2013 to United States citizens.98<\/a><\/sup>Id. at 231<\/span><\/span> It provides: \u201cNo person shall be qualified to register for and vote at any election unless he is a citizen of the United States.\u201d99<\/a><\/sup>Id. at 231<\/span><\/span> However, embedded within the election law is a \u201csavings clause\u201d or \u201creverse preemption,\u201d100<\/a><\/sup>Id. at 231<\/span><\/span> which offers that \u201cif there is a conflict between the state election law and \u2018any other law,\u2019 the later prevails, unless the election law specifically provides that it should prevail.\u201d101<\/a><\/sup>Id. at 231<\/span><\/span>\u00a0 As such, while <\/span>Intro. 1867 <\/span><\/em>may disagree with the New York State Election law, it is still legal, as the state constitution would supersede it.<\/span>102<\/a><\/sup>Id. at 231<\/span><\/span><\/p>\n

As federal law criminalizes noncitizens for voting in any federal elections, the New York Board of Elections would need to enact procedural protections to ensure that noncitizens are specifically voting for municipal elections.103<\/a><\/sup>Gilbert, supra note 38, at 230<\/span><\/span> A state constitution, law or local ordinance that establishes noncitizen voting for municipal purposes is not a criminal act.104<\/a><\/sup>Id. at 230<\/span><\/span> However, under immigration law, it is punishable for a noncitizen to vote in a federal election, rendering any such person inadmissible or deportable.105<\/a><\/sup>Id. at 230<\/span><\/span> New York City can formulate systems such as constructing a different ballot for noncitizens or holding local elections at a different time of year than national elections to assure that noncitizens are safeguarded.106<\/a><\/sup>Id. at 230<\/span><\/span> The Board of Election will also be required to train poll-workers and the City would need to further voter education informing noncitizens of the sanctions that can result in violation of the federal rule.107<\/a><\/sup>Id. at 230<\/span><\/span> The Council may implement town hall meetings or listening sessions throughout boroughs and districts to help further voter education.108<\/a><\/sup>Id. at 246<\/span><\/span><\/p>\n

All in all, federal law nor state law are barriers for institutionalizing noncitizen municipal voting.109<\/a><\/sup>Gilbert, supra note 38, at 229 <\/span><\/span> This empowers city governments vigorous opportunity to \u201c\u2026serve as [a] lab and experiment with immigration.\u201d110<\/a><\/sup>Id. at 229 <\/span><\/span> Other localities have assumed such a role as engineers of sensible immigration reform by mandating noncitizen voting.111<\/a><\/sup>Id. at 236<\/span><\/span> Several cities in Massachusetts, including Cambridge, Brookline, Wayland and Amherst, proposed noncitizen voting but were unsuccessful as the state did not adopt an enabling legislation, required under state law.112<\/a><\/sup>Id. at 236<\/span><\/span> In 2010, Portland Maine, the League of Young Voters championed a campaign to have noncitizen voting.113<\/a><\/sup>Id. at 238<\/span><\/span> However, after the City Council held a public hearing to review the proposed law, a referendum was defeated, by 52 to 48 percent.114<\/a><\/sup>Id. at 238<\/span><\/span> The prime concerns for excluding Portland\u2019s growing refugee and immigrant community from political participation was a fear of the burdensome reliance of such persons on the locality\u2019s public assistance program.115<\/a><\/sup>Gilbert, supra note 38, at 238<\/span><\/span><\/p>\n

Takoma Park, Maryland serves as a successful example of the implementation and subsequent operation of the practice.116<\/a><\/sup>Id. at 236<\/span><\/span> The City Council initiated a \u201cShare the Vote\u201d campaign, which resulted in the adoption of municipal voting for the City\u2019s 16,700 persons population in February of 1992.117<\/a><\/sup>Id. at 236<\/span><\/span> The City amended its charter to provide all residents the privilege to vote in all local elections and seek office for all local positions.118<\/a><\/sup>Raskin, supra note 44, at 1463<\/span><\/span> The roots of the campaign can be traced to 1990 when the Takoma Park Elections Task Force completed a council redistricting process119<\/a><\/sup>Id. at 1463<\/span><\/span> and \u201c\u2026found that its new wards had equal numbers of residents as required by law, but that some wards had far more eligible voters than others because some contained a large alien population.\u201d120<\/a><\/sup>Id. at 1463<\/span><\/span> Consequently, in September of 1991, the Takoma Park Council voted to place the issue on the ballot.121<\/a><\/sup>Id. at 1463<\/span><\/span> This fueled great debate in the City: proponents of the amendment noted the importance of democratic principles of participation and opponents, furthering xenophobia, maintained that voting in all elections is a privilege solely reserved for citizens.122<\/a><\/sup>Id. at 1464<\/span><\/span> Today, noncitizen voting is in practice in Takoma Park for over 20 years and it has survived coordinated efforts to abolish it, including failed attempts by members of Maryland House of Delegates to enact legislation prohibiting the practice on the premise that it is a threat to national security.123<\/a><\/sup>Takoma Park stands by non-U.S. citizen voting law by Aaron Krut, The Washington Post (March 14, 2012) https:\/\/www.washingtonpost.com\/local\/takoma-park-stands-by-non-us-citizen-voting-law\/2012\/03\/13\/gIQAVBcgBS_story.html?noredirect=on&utm_term=.ab5e8ec25eef<\/span><\/span> Also, the City\u2019s website thoroughly details the process that noncitizens must complete in order to be eligible to vote; the application specifies the requirements and the penalties of violating the rule.124<\/a><\/sup>City of Takoma Park, Maryland Voter Registration Application, https:\/\/cityclerk-takomapark.s3.amazonaws.com\/election\/TP-noncitizen-Voter-Registration-Application-rev.09-26-2016-fillable.pdf<\/span><\/span><\/p>\n

In addition to the constitutional and structural hypothesis that further the legality of municipal voting, normative and prudential theories support its practice. First, the American democracy is founded under the principle of \u201crule by the people.\u201d125<\/a><\/sup>Raskin, supra note 44, at1391<\/span><\/span> As \u201cthe people\u201d is not limited to a set category of membership126<\/a><\/sup>Gilbert, supra note 38, at 237<\/span><\/span>, democracy can be reimagined by localities to include persons \u201c\u2026who have demonstrated a commitment to their communities and the country.\u201d127<\/a><\/sup>Id. at 237<\/span><\/span> A pure understanding of democracy insists that citizenship should not be a precursor to political engagement \u2013 all persons in a confined jurisdiction, particularly, those who are tax-payers and beneficiaries of local services, are entitled to shape their political systems, as such systems are equally responsible to them.128<\/a><\/sup>Id. at 237 <\/span><\/span> Throughout history, our understanding of who constitutes \u201cby the people\u201d has evolved to include marginalized communities and can continue to be expanded to include our society\u2019s contemporary second-class citizens \u2013 noncitizens.129<\/a><\/sup>Raskin, supra note 44, at 1393<\/span><\/span> At the core of the American tradition of political freedom is: \u201cNo Taxation without Representation.\u201d130<\/a><\/sup>Id. at 1441<\/span><\/span> Such a philosophy \u201c\u2026makes noncitizen voting logically unassailable\u201d given \u201cthe bedrock hostility of the liberal rights tradition to taxation and governance without representation.\u201d131<\/a><\/sup>Id. at 1441<\/span><\/span> Every day, noncitizens navigate American society with the expectation and obligation to respect and abide by legal rules \u2013 creations not of their own \u2013 like citizens, but remain disenfranchised:132<\/a><\/sup>Id. at 1442<\/span><\/span> \u201cResident aliens are governed by our political institutions and are subject to all laws which apply to citizen\u2026they must pay all taxes that citizens, pay.\u201d133<\/a><\/sup>Id. at 1442<\/span><\/span> Our societal values \u2013 such as community safety and social responsibility\u2014would also be better advanced if through suffrage, noncitizens are empowered to invest in their respective communities.134<\/a><\/sup>Id. at 1443<\/span><\/span> Arguably, individuals abide by the rules that they directly and indirectly formulate.135<\/a><\/sup>Raskin, supra note 44, at 1443<\/span><\/span><\/p>\n

Conclusion<\/strong><\/p>\n

\u201cImmigrant New York\u201d who will be the recipient of municipal voting are in fact \u201cAmericans in waiting,\u201d136<\/a><\/sup>Term coined by Hiroshi Motomura (Americans in Waiting: The Lost Story of Immigration and Citizenship in the United States by Hiroshi Motomura, Oxford University Press Inc. (2006)<\/span><\/span> many of whom have resided in the City for decades but have failed to find a pathway towards citizenship, given an impaired immigration system.137<\/a><\/sup>Raskin, supra note 44, at 1393<\/span><\/span> Immigrants \u201c\u2026are generally here to stay.\u201d138<\/a><\/sup>Id. at 1393<\/span><\/span> As the New York City Mayor\u2019s Office of Immigrant Affairs notes, approximately 50% of noncitizen New Yorkers have lived in the City for at least 20 years or more.139<\/a><\/sup>NYC\u2019s Mayor\u2019s Office of Immigrant Affairs Annual Report, State of Our Immigrant City, at 14 (March 2018) https:\/\/www1.nyc.gov\/assets\/immigrants\/downloads\/pdf\/moia_annual_report_2018_final.pdf<\/span><\/span> For many, like my parents, America is part of their identity and they envision themselves as part of the respective communities that they have been part of since migrating. To deny such individuals of the right to vote, is to deprive them of their right of belonging and identity. As \u201cimmigration integration is ultimately a local matter,\u201d140<\/a><\/sup>Gilbert, supra note 38, at 246<\/span><\/span> it will also be able to mobilize the assimilation of New Americans to their home communities \u2013 attachment and connection to a new space produces healthy and sustainable communal relationships.141<\/a><\/sup>Id. at 246<\/span><\/span> After all, the immigrant experience in the United States is colored with invisibility142<\/a><\/sup>Raskin, supra note 44, at 1455<\/span> \u2013 \u201cpolitical and social invisibility.\u201d<\/span> Municipal voting will humanize the immigrant reality and safeguard noncitizens from discriminatory practices, specifically, those sanctioned by the state:143<\/a><\/sup>Id. at 1456<\/span><\/span> \u201cTo exclude aliens is not only to render them more vulnerable to discriminatory legislation, but to stigmatize them as less worthy than citizens\u201d144<\/a><\/sup>Id. at 1456<\/span><\/span> Thus, such a social recognition and political power will result in increased dignity and self-esteem.145<\/a><\/sup>Id. at 1455<\/span><\/span>\u00a0<\/span><\/p>\n

Cities like New York City are defined by its immigrant life and contribution.\u00a0 Our country\u2019s noncitizen population is robust and growing:146<\/a><\/sup>Gilbert, supra note 38, at 227<\/span><\/span>\u00a0 For example, \u201cin many of New York City\u2019s 51 districts, the percentage of noncitizens is much higher and in several districts immigrants make up close to a majority of residents.\u201d147<\/a><\/sup>Id. at 227<\/span><\/span>\u00a0 Our country\u2019s diverse pockets of New Americans have shaped the political, cultural, social and economic realities of the City. As New York has already extended measures to safeguard the rights of immigrants \u2013 iDNYC \u2013 municipal voting rights is the logical next-step, specifically, a crucial steppingstone of a larger local agenda that can protect immigrants in the age of anti-immigrant rhetoric. New York City government officials have promoted the idea of the City as a Sanctuary City \u2013 the realities of which are not true as noncitizens can exercise their political capital and have a direct role in building the City\u2019s governance. \u201cImmigrant New York\u201d is primarily and notably progressive \u2013 in a rising conservative political apparatus, extending the franchise to noncitizens would also help protect progressive measures instituted in New York \u2013 universal childcare, municipal identification and a living wage. Lastly, as our national institutions are infatuated with political gridlock, municipal voting is necessary to mobilize greater immigration reform \u2013 it sets the foundation for aspirational immigration reform that is just, humanizing and common-sense.\u00a0<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

By Guest Contributor Fatoumata Waggeh Fatoumata Waggeh, Esq. is a Litigation Associate. She is a recipient of her firm\u2019s \u201cPro-Bono […]<\/p>\n","protected":false},"author":10129,"featured_media":12855,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_post_was_ever_published":false,"_members_access_role":[],"_members_access_error":""},"categories":[3,35,1208,42],"tags":[202,289,440],"coauthors":[1889],"class_list":["post-12853","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-amicus","category-guest-author","category-immigration","category-voting-and-elections-rights","tag-elections","tag-immigration","tag-race"],"jetpack_featured_media_url":"https:\/\/journals.law.harvard.edu\/crcl\/wp-content\/uploads\/sites\/80\/2022\/01\/PHGMD_20.02.20_Eligible-voters_Featured-Image.jpg","jetpack_shortlink":"https:\/\/wp.me\/peZrWS-3lj","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/posts\/12853","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/users\/10129"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/comments?post=12853"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/posts\/12853\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/media\/12855"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/media?parent=12853"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/categories?post=12853"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/tags?post=12853"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/coauthors?post=12853"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}