By Jeff Wice, Alexis Marking & Michael Athy
This week: N.Y.C. Non-citizen Voting Appeal. N.Y.C. Submits Requests for VRA Preclearance, April 1 N.Y.C. Census 2030 Organizing Conference, Pennsylvania Considers Redistricting Reform
Oral Arguments Heard in Fossella v. Adams: Challenging
Non-Citizen Voting in N.Y.C Elections
On February 11th, the New York Court of Appeals heard oral arguments in Fossella v. Adams. The appeal was requested by the New York City Council, which approved Local Law No. 11 (2022), after an appellate court ruled last February that the law violated the New York State Constitution and Municipal Home Law. Local Law No. 11 (2022) would have authorized certain non-citizens to vote in local elections, including more than 800,000 green card holders and other residents with federal work authorization. Under this law, individuals could vote for mayor, borough president, comptroller, public advocate, and council members in municipal elections.
As stated in the New York State Constitution (Article II, § 1), “Every citizen shall be entitled to vote at every election for all officers elected by the people and upon all questions submitted to the vote of the people provided that such citizen is 18 years of age or over and shall have been a resident of this state, and of the county, city, or village for 30 days next preceding an election.”
The appellate court ruled that an “irrefutable inference applies that noncitizens were intended to be excluded from those entitled to vote” because Article II, § 1 does not reference non-citizens when affording individuals with the right to vote. The court stated that “citizen” referred to a U.S. citizen for voting in municipal and statewide elections.
Along with this claim, the lawsuit—originally filed by state and national Republican committees and GOP officeholders in Staten Island—also alleged that Local Law No. 11 violated Municipal Home Rule Law because it did not pass via a New York City referendum. The lawsuit further alleged that the law violated N.Y. Election Law § 5-102(1), as individuals must be U.S. citizens in order to be qualified to vote.
Oral arguments focused on these two central issues: what exactly qualifies an individual as a “citizen,” and that New York City officials “did not hold a referendum to facilitate a home-rule law that aims to allow non-U.S. citizens to vote in municipal elections.”
Michael Hawrylchak, of counsel with O’Connell and Aronowitz, argued for the GOP plaintiffs. Cesar Ruiz, associate counsel at LatinoJustice PRLDEF, argued on behalf of nine non-citizen residents of New York City (of whom intervened in defense of the local law).
As reported by the New York Law Journal, “Judge Jenny Rivera expressed concerns to New York City Assistant Corporation Counsel Claude Platton about the law not conforming with the Home Rule Law, which provides that any law that changes the method of nominating, elevating, or removing an elective officer must be approved by a public referendum.” Rivera felt that there was a change in process, such as the method of New York City’s tally of ballots, which “means that you have to recalibrate your procedures to accommodate for that.”
Platton stated that Rivera’s suggestion was a “recipe for any change triggering a referendum—and this court has warned that we’d end up with more referendums than any municipality could reasonably bear if changes at that level trigger the referendum requirement. Fundamentally, what this local law does is it allows noncitizens to vote on the same terms that citizens can vote. The ballots may be slightly different, but it’s by secret ballot and fundamentally the method has not changed in any way.”
Additionally, Cesar Ruiz argued that Article II, § 1 of the state constitution “is the guarantee of the right to vote” and is not meant to limit. Instead, Article III outlines voter eligibility. Judge Michael Garcia then asked if expanding the vote by approximately 900,000 would be a form of voter dilution to the voters already protected by Article II. Ruiz stated that “granting a positive right to a group that was formerly disenfranchised is not the same as diluting the vote, because all of the voters are similarly situated.”
Judge Caitlin Halligan also asked whether Local Law No. 11 would comport with federal law. She referenced the language of Article I, § 2 of the state constitution and questioned how this could be done without “running straight into a difference between who can vote in a federal election and who can vote in a state election.” Ruiz responded that the article says every citizen shall be entitled to vote: “Entitled creates positive rights. It does not restrict or prohibit.”
Local Law No. 11 took effect in January 2022. Mayor Eric Adams and former Mayor Bill de Blasio both declined to sign or veto the bill.
N.Y. STATE VOTING RIGHTS ACT
Attorney General Receives Two Preclearance Submissions
The Attorney General’s Civil Rights Bureau received two preclearance submissions from the N.Y.C. Board of Elections related to Spring, 2025 special elections, early voting, and poll sites. The submissions can be accessed by visiting this link: https://oagcloud.ag.ny.gov/s/iGGaDQy9E8Xty6K Enter the password: Preclearance2025!
CENSUS
April 1st N.Y.C. Census 2030 Conference Announced
New York City activists can register now for a conference focused on organizing for the 2030 Decennial Census. The event will be held at New York Law School on Tuesday, April 1st from 9:00 AM to Noon. Organizers include New York City Council Member Julie Menin (who directed N.Y.C.’s 2020 census effort), the N.Y.C. Central Labor Council, and the N.Y. Elections, Census & Redistricting Institute. Register here: https://nyls.wufoo.com/forms/q19nfln10ghm3va/
AROUND THE NATION
Pennsylvania Redistricting Reform Proposal Introduced
The desire to end partisan gerrymandering has gained steam in recent years with several states passing laws to ban partisan gerrymandering and have their districts drawn by an independent commission rather than state lawmakers. Now Pennsylvania may be the newest state to join them.
Partisan gerrymandering results in legislative districts more favorable to one political party. This process allows politicians to essentially pick their own voters, strengthening the electoral power of voters they prefer while marginalizing the power of others. Partisan gerrymandering can be devastatingly effective at ensuring a certain political party retains disproportionate electoral dominance of their state.
A recent example is reflected in North Carolina’s congressional delegation map that went from a 7-7 party split to a 10-4 split favoring Republicans following prolonged litigation and the election of a state supreme court more favorable to the GOP. This gerrymandering helped provide Republicans a U.S. House majority in the 2024 election.
State lawmakers in Pennsylvania have proposed legislation to reform the way the state’s electoral districts are drawn. The bipartisan legislation will be attempting to make the redistricting process more fair before 2031. House Bill 31 and Senate Bill 31 are being introduced in the Pennsylvania state house and senate. These bills would amend the state constitution in order to ban partisan gerrymandering and create an independent commission tasked with redrawing congressional and state legislative districts. The independent commission would be made up of 4 republicans, 4 democrats and 3 non-affiliated members. These proposed changes would be in place ahead of the 2030 census and 2031 redistricting process.
The proposed bills call for extensive safeguards to ensure minimal bias in the members of the redistricting board. These safeguards include that members cannot have previously served as a member of the governing body of a political party or been employed by a political campaign.
The two bills face uphill battles in the state legislature, particularly in the State Senate. However, Philip Hensley-Robin, chair of the Pennsylvania chapter of the redistricting reform advocacy group Common Cause, has expressed optimism that support for fair redistricting reform will accelerate in coming years. He cites the bipartisan sponsors of the bills as well as polling that suggests widespread opposition to partisan gerrymandering from both sides of the aisle.
INSTITUTE RESOURCES
The New York Elections, Census and Redistricting Institute has archived many resources for the public to view on our Digital Commons Page.
Our Redistricting Resources page contains resources on the John R. Lewis Voting Rights Act. You can access the page
here: https://digitalcommons.nyls.edu/redistricting_resources/
Archived Updates can be accessed
here: https://digitalcommons.nyls.edu/redistricting_roundtable_updates/
Please share this weekly update with your colleagues. To be added to the mailing list, please contact Jeffrey.wice@nyls.edu
The N.Y. Elections, Census & Redistricting Institute is supported by grants from the New York Community Trust, New York Census Equity Fund and the New York City Council. This report was prepared by Jeff Wice, Alexis Marking & Michael Athy.