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Ordinance Allowing Non-Citizens to Vote Is Valid—C.A.
Opinion Reverses Injunction Against Enforcement of San Francisco Provision Relating to School Board Elections
By a MetNews Staff Writer
Div. Five of the First District Court of Appeal yesterday reversed a permanent injunction barring enforcement of a San Francisco ordinance allowing non-citizens who are adult parents or guardians of children under the age of 19 to vote in local school board elections.
Acting Presiding Justice Mark B. Simons wrote the opinion in which Justice Gordon B. Burns and Justice Danny Y. Chou concurred. It reverses a judgment by San Francisco Superior Court Judge Richard B. Ulmer Jr. who, on July 29, 2022, declared that “San Francisco ordinance 206-21 is contrary to the California Constitution and state statutes and thus cannot stand.”
San Francisco voters in 2016 approved a charter amendment permitting non-citizens to vote for school board candidates and in recall elections, but it sunsetted in 2022, subject to being extended by the Board of Supervisors. The board did so in enacting Ordinance 206-21 in 2021.
The ordinance was challenged in 2022 by James V. Lacy, Michael Denny, the United States Justice Foundation, and the California Public Policy Foundation. Defendants are the City and County of San Francisco, Director of Elections John Arntz, and others.
Trial Court Ruling
Ulmer Jr. said in his 2022 order declaring the charter provision invalid:
“Touchstone of the writ petition is article II, section 2 of the California Constitution: ‘A United States citizen 18 years of age and resident in this State may vote.’ Transcendent law of California, the constitution thus reserves the vote to a ‘United States citizen,’ contrary to San Francisco ordinance 206-21.
“Defendants’ effort to give the California Constitution a different meaning is unavailing. Their lead argument is that, while article II, section 2 says citizens ‘may vote,’ noncitizens ‘may also’ vote….This proves too much. By the same logic, children under 18 and residents of other states ‘may also’ vote in California elections, which our constitution does not allow.
“The constitution uses ‘may’ in ‘A United States citizen 18 years of age and resident in this State may vote’ for good reason. Had it instead used the mandatory word ‘shall’…, resident citizens of age would be legally required to vote. Election laws in many nations make voting mandatory, but not the United States.”
Ulmer noted that at oral argument, the defendants acknowledged that the “home rule power” of chartered cities and counties cannot overpower a state constitutional provision. The state Constitution, as well as various statutes, proscribe voting by non-citizens, he ruled.
Simons’s Opinion
Disagreeing, Simons wrote:
“We reject the challenge for two reasons. First, neither the plain language of the Constitution nor its history prohibits legislation expanding the electorate to noncitizens. Second, the relevant constitutional provisions authorizing home rule permit charter cities to implement such an expansion in local school board elections. This authority is consistent with the principles underlying home rule and permits the voters of each charter city to determine whether it is good policy for their city or not.”
Simons referred to Art. III, §2 as the “Citizen Voter Provision.”
He recited that under California decisional law, legislative bodies have all powers not expressly, or by necessary implication, denied by the state Constitution.
“The Citizen Voter Provision’s definition of who ‘may vote’ does not expressly or by necessary implication prohibit the Legislature from expanding the electorate to noncitizens,” he said.
Home Rule Provision
He pointed to Art. XI, §5 of the state Constitution which provides:
“It shall be competent in all city charters to provide, in addition to those provisions allowable by this Constitution, and by the laws of the State for…the manner in which…municipal officers… shall be elected.”
Simons declared that there is “an underlying intent to confer expansive authority on charter cities in those areas deemed to be within their purview, suggesting the language of the provisions should be construed broadly to further that intent.”
He commented:
“[I]t 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. Conversely, where a charter city’s electorate determines expanding the electorate would not serve its local needs, it need not do so.”
The case is Lacy v. City & County of San Francisco, 2023 S.O.S. 2859
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