Noncitizens Can Vote in School Board Elections

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A controversial San Francisco ordinance that allows non-citizens over the age of 18 to vote in local school board elections if they have children in school has survived a challenge to its constitutionality. In their ruling approving the law, the judges said that home rule is not prohibited by the constitution and allows each charter city to determine what constitutes good voting policy for its own locale.

San Francisco is both a charter city and county, which will be referred to here by the collective term of the “City.” This means that its form of government, also known as “home rule,” is defined by its documents rather than by a general law. Under home rule, the City has its own administration.

In 2016, San Francisco amended its city charter by passing Proposition N, which permits noncitizen parents and guardians of school-age children to vote in elections for members of the school board. Documents submitted at the time reported that an estimated one-third of all children attending the city’s schools have an immigrant parent.

An ordinance enacting Proposition N was passed in 2018. It allowed the City’s Department of Elections to develop “noncitizen voting registration forms.” But it also contained a “sunset” provision that would end noncitizen voting in school board elections starting in 2022. This provision allowed a group of plaintiffs, headed by James V. Lacy and including the United States Justice Foundation and the California Public Policy Foundation, to sue the City and petition for a writ of mandate that would permanently sunset Proposition N because it violates the California constitution.

California’s First District Court of Appeal from Division Five reversed the ruling by San Francisco Superior Court Judge Richard B. Ulmer on August 8. Ulmer had decided that the ordinance “is contrary to the California Constitution and state statutes and thus cannot stand.” The Court of Appeal’s unanimous decision, authored by Acting Presiding Justice Mark B. Simons, reversed Ulmer’s opinion.

Simons began the appellate opinion with a recap of the relevant provisions of the California Constitution, which in Article II, section 2 states in its Citizen Voter Provision that United States citizens over the age of 18 may vote. The City argued that this “sets only a floor for voter qualification and does not prohibit expanding the electorate to noncitizens.” Plaintiffs disagreed, claiming that the “Constitution establishes a ceiling,” rather than a floor. The appellate court said they must “look to the language of the constitutional text” to determine the “ordinary meaning” of the words.” Only if the language is “ambiguous will extrinsic evidence be considered,” he explained.

The opinion then examines the language of the Constitution. First, it points out that the word “only” is not placed before the word citizens. Next, it explains the importance of the legislative intent of California lawmakers. Simons reviewed the legislative history of Proposition N and concluded that it does not restrict the Legislature’s discretionary power to expand the electorate to noncitizens.”

Plaintiffs’ precedents from Spier v. Baker in 1898 were not persuasive. That decision’s timelines for allowing naturalized citizens to vote and its comparisons to legislation that would have allowed women, aliens and minors to vote were easily distinguished from the noncitizens in this case. The court said these comparisons from Spier were not law, merely “dicta.” As such, they were incidental expressions of opinion, not creators of precedent.

The opinion also said that there is historical precedent for the disputed Citizen Voter Provision, which forbids the exclusion of “natives from China” and replaced that language with “aliens ineligible for citizenship.” Furthermore, this replacement language was deleted from the State constitution in 1972.

Next, Simons turns to the question of whether charter cities have the same power to extend voting to noncitizens as the legislature. He concludes that the California Constitution affirmatively gives charter cities the authority to enact the Charter City School Board Provision at issue here. The California Supreme Court has also ruled that the “Home Rule Provision” should not be narrowly construed… (and should) include substantive aspects of elections. The opinion also examines the history of home rule in California and concludes, “The “California Constitution demonstrates an intent to confer broad authority on charter cities over municipal affairs generally.”

None of plaintiffs’ arguments convinced the Court of Appeal to side with them in favor of narrow construction. In fact, the opinion noted, the Charter City School Board Provision “guarantees to charter cities the right to provide ‘for the manner in which, the time at which, and the terms for which members of boards of education shall be elected or appointed…” Similarly, the court rejected plaintiff’s warnings that there could be a snowball effect of this provision that would lead to “absurd consequences,” such as allowing Texas residents to vote in California charter city elections. The opinion dismissed this hypothetical as well, saying, “We doubt such an expansion would survive challenges under other constitutional provisions.”

In addition, the California Education Code’s election provisions protect Proposition N from any conflicts with state law because it “expressly exempts…school board elections where the city charter provides otherwise as to matters “afforded controlling force and effect by the Constitution.”

The unanimous opinion summarizes that “It makes sense to confer on charter cities the authority to expand the electorate where, as here, the city’s voters determine that doing so would better serve local needs.” And one-third of the City’s residents will not be better served because they now have a voice in how their children will be educated.

Maureen Rubin, J.D.
Maureen Rubin, J.D.
Maureen Rubin is an Emeritus Professor of Journalism at California State University where she taught media law and writing and served as an administrator. Previously, she worked in the Carter White House and U.S. Congress, She is a graduate of Catholic University Law School and holds a Master's from USC.
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