Across the country, cities have been considering legislation that would allow all residents over age 18 to vote in local school board elections, regardless of citizenship status.  Supporters of this movement argue that because noncitizens pay local taxes, volunteer at schools, and participate in school board meetings, they should be able to have a say in selecting the officials who set the district policies that impact their children’s education.  One such city to allow noncitizen voting, was San Francisco – the first in California to do so.  Circumstances dramatically changed on July 29, 2022, however, when a Superior Court judge struck down San Francisco’s local law, finding it contrary to the California Constitution.  As discussed below, this ruling has affected other California cities currently considering noncitizen voting.

San Francisco’s Proposition N

In 2016, San Francisco voters passed Proposition N, which granted noncitizen parents of San Francisco Unified School District students the right to vote in the November 2018, 2020, and 2022 school board elections.  San Francisco County Board of Supervisors later passed Ordinance No. 206-21, extending this voting right indefinitely beyond 2022.

However, in March 2022, a California attorney, James Lacy, filed a lawsuit against the City and County of San Francisco arguing that this local law was unlawful, and stated that “when noncitizens vote in an election, the voting rights of citizens are wrongly diluted.”

Lawsuit Against the City and County of San Francisco

In this lawsuit Lacy v. City and County of San Francisco, the defendants, the City and County of San Francisco, argued that despite the California Constitution stating that all voters must be United States citizens, under Article IX, section 16(a) of the California Constitution, charter cities like San Francisco are allowed to provide for the time, manner, and terms for which members of the boards of education are elected.  Relying on the word “manner,” the defendants argued that this includes setting voting right qualifications.  The superior court was not persuaded.  The court first found that absent from article IX, section 16(a) was any mention of voters or their qualifications.  The court then looked at Education Code section 5390 which did mention “qualifications of voters.”  However, the court found that under this section, the language clearly stated that voter qualifications “shall be governed by those provisions of the Elections Code applicable to statewide elections.”  Under Elections Code section 2300(a), which is applicable to statewide elections, “All voters, pursuant to the California Constitution and this code, shall be citizens of the United States.”  Taken together, the court ruled that the City and County of San Francisco’s local law granting noncitizen voting rights was contrary to the California Constitution and therefore void and unenforceable.

Following this ruling, the City and County of San Francisco appealed, while the same plaintiff filed another suit – this time against the City of Oakland.

Lawsuit Against the City of Oakland

In June 2022, the City of Oakland’s City Council voted to place a measure on the November 2022 ballot that would allow noncitizen parents or guardians of school-age children to vote in school board elections.  In response to this measure, the plaintiff in the City and County of San Francisco case sued the City of Oakland, seeking a court order to remove this measure from the November ballot.  The plaintiff again argued that allowing noncitizens to vote would violate the California Constitution.  On August 30, 2022, an Alameda County Superior Court judge said that the measure can appear on the November ballot, as it would be premature to decide before a ballot measure is passed, whether it is constitutional.  However, the judge also remarked that the San Francisco ruling was likely correct, but that the issues it addressed would need to be decided by higher courts.

What This Means For Your City

The trend of both extending local election voting rights to noncitizens and facing legal challenges over such proposals is taking shape.  The lawsuits against the City and County of San Francisco and the City of Oakland have already caused some California cities, such as the City of San Jose and City of Santa Ana, to reconsider adopting noncitizen voting laws due to the legal challenges they will likely face.

If your city is considering extending local election voting rights to noncitizens, please reach out to your trusted legal advisors to navigate the potential legal implications.