San Francisco’s law allowing some noncitizens to vote in school board elections was challenged in court Thursday by conservative groups, who argued that California authorizes only U.S. citizens to vote. A judge seemed inclined to agree.
The ordinance, approved by city voters as Proposition N in 2016, took effect in 2018 and was extended indefinitely by San Francisco supervisors in 2021. It allows voting by noncitizens, including undocumented immigrants as well as legal residents, if they are a parent of a school-age child and are not in prison or parole for a felony conviction.
Similar laws are in effect in several cities in other states, but none elsewhere in California.
A lawsuit by the United States Justice Foundation and the California Public Policy Foundation contends the local law conflicts with the state Constitution’s provision on voting, which declares, in full: “A United States citizen 18 years of age and resident in this State may vote.”
In other words, Superior Court Judge Richard Ulmer said at Thursday’s hearing, “the California Constitution says you’ve got to be a United States citizen to vote. … How do you overcome that?” he asked Deputy City Attorney James Emery.
By concluding that the word “may” doesn’t necessarily exclude others, Emery replied.
To say that a citizen may vote “means you can’t take it away,” the city’s lawyer said. “To add a category of people entitled to vote … does not conflict” with the constitutional language.
What’s more, he said, state law allows charter cities like San Francisco to govern their own municipal affairs, such as local elections. And the state “has an interest in protecting every single person’s right to vote,” Emery said.
“If that person is entitled to vote,” Ulmer said. “Doesn’t the state law tell us … that it’s a statewide concern?”
Sounding the same theme, attorney Chad Morgan, representing the groups that challenged the law, said the state’s “interest,” or legal concern, is to guarantee that “voting is a right of citizenship.”
“The state has no interest in discriminating against immigrants,” countered Emery.
Ulmer did not issue a ruling at the end of the one-hour hearing.
Prop. N, approved by 54% of the voters in 2016, has not led to a large turnout of noncitizen voters. Immigrant groups say many noncitizens fear taking actions that might come to the attention of federal agents.
“It’s a growing program,” Emery told Ulmer, who had noted the small participation. “People have to know there will be no immigration consequences.”
Morgan also argued that public schools in California are actually “little state agencies” that are subject to state regulation rather than local control. School buildings are state property, he said, and the highest educational authority is the state superintendent of public instruction.
