SAN JOSE, Calif. — San Jose is considering whether to allow noncitizens to vote in local elections, but the controversial proposal could be in legal jeopardy before it even makes its way to the ballot box.
The idea was proposed earlier this year by council members Magdalena Carrasco and Sylvia Arenas as a way to give a voice to residents who play a critical role in the community but are unable to participate in the democratic process and select their representatives. The move could affect noncitizens such as undocumented immigrants and legal noncitizens who are green card holders or have the right to study or work in the U.S.
More than a dozen cities in the U.S. currently allow noncitizen voting in local elections — most of them in Maryland. But locally, the concept is facing legal challenges.
San Francisco voters approved a measure in 2016 that allowed noncitizens — both undocumented and legal residents — to vote in school board elections if they had a child in the district. But two conservative nonprofits, the United States Justice Foundation and the California Public Policy Foundation, sued the city, arguing it was unconstitutional.
On July 29, San Francisco Superior Court Judge Richard B. Ulmer, Jr. struck down the law, citing a portion of the California Constitution that says, “A United States citizen 18 years of age and resident in this state may vote.” The city had argued that “may vote” isn’t restrictive — a notion that Ulmer rejected.
Litigation in Oakland has followed suit, with the same groups suing the city to try to keep a similar measure off the November ballot.
San Jose city attorney Nora Frimann said she believes San Francisco intends to file an appeal.
The uncertainty around the legality of noncitizen voting is enough for Mayor Sam Liccardo to want to hit the pause button on the issue.
“There’s going to be a lot of courts weighing in on this over the next year and a half or so,” he said. “It seems to me for us to be spending a lot of time on this issue before we even know whether or not it’s lawful is probably not the best use of our time.”
While no decision was made during a study session of the issue at Tuesday’s San Jose City Council meeting, Carrasco indicated her desire to move forward.
“It’s up to local jurisdictions to decide and create an environment where those who are contributing, who are participating and who want to engage have an opportunity to do so safely and legally,” she said. “And what we’re seeing throughout the country is that there is a real move towards voter suppression of folks who have previously been disengaged, who have previously been disenfranchised and when we have opportunities to truly bring them into the conversation, there’s a sense of threat.”
The proposal garnered an overwhelming amount of support on Tuesday from residents — many from immigrant communities.
Jose Servin, the advocacy director for immigrant rights group SIREN, called it an “opportunity to take a step forward and expand the American imagination.” He said many residents who are barred from voting because of their citizenship status have fought for worker protections, canvassed and helped register individuals to vote despite their own inability to do so.
“We’re not talking about giving anybody a handout,” he said. “I’ve stood shoulder to shoulder with some of these people back here, countless members of the undocumented community, DACA recipients like me, TPS holders, people awaiting visas and many other people defined by the legal limbo that they’re stuck in to make our voice heard one way or another.”
Many of those speaking out in opposition argued that voting is a right, not a privilege.
“I believe it devalues the value of citizenship,” said Shane Patrick Connolly, the chair of the Santa Clara County Republican Party. “It was hard-earned by many of our great citizens here in San Jose.”
Allowing noncitizens to vote could be costly to the city of San Jose. The city of New York, which recently had its law struck down by a judge as well, estimated that it would add $4 million to its 2023-2024 fiscal year election costs to have an additional 900,000 noncitizen voters.
City clerk Toni Taber was unable to provide an exact number of how much it would cost but said they would need to factor in ballot design and printing, mailing, staff time, outreach, translations and postage. With an estimated number of possible noncitizen voters of 97,847, that base cost would be $260,274. The city would also need to budget an additional $600,000 to conduct outreach.
San Jose spent $2.2 million on the June 2022 election, but that included shared printing costs with other cities. A noncitizen ballot would have to be printed separately, with the city bearing the full costs.
Councilmember Dev Davis, who was the sole individual who voted against studying the proposal back in January, continued to vehemently oppose the idea on Tuesday.
“We are the most thinly staffed police department of any big city in America,” she said. “We are the most thinly staffed city in all of the United States. I can’t justify spending more than double what we already spend on elections when we don’t have enough police officers to keep everybody safe.”
If San Jose does decide to move forward with noncitizen voting, it would first have to be approved by the voters at the ballot box.
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