NYC Extends Voting Rights to Certain Aliens

Doesn't really cover 'Dreamers', but does apply to many with temporary visas

By Andrew R. Arthur on January 11, 2022

On January 10, the new mayor of New York City, Eric Adams (D), allowed a bill permitting certain aliens to vote in municipal elections to become law. You have likely heard about this legislation, but there is both more and less to it than meets the eye.

Alien Voting Rights in the United States. The Associated Press (AP) referred to Adams’ action as a “watershed moment”, which is somewhat of a misstatement as even the outlet’s reporting reveals. Already, there are about 15 localities in which what AP refers to as “noncitizens” have some sort of franchise, from San Francisco (for the board of education) to Winooski, Vt., (in municipal and school district elections).

None of those localities, of course, are as large as New York City, the nation’s largest city, with more than 8.62 million residents and some seven million voters. What's more, Gotham’s alien-voting law is more sweeping than, for instance, the one in the City by the Bay.

Who Is Covered by the New Law? The bill, designated Int. 1867-2020A, limits suffrage to municipal elections, and to aliens who are lawful permanent residents (commonly known as “green card holders”), and to those “authorized to work in the United States”. That means that aliens who aren’t here legally and who are not allowed to work can’t vote in local elections in NYC, either.

Here is how AP describes the class of aliens who would be eligible to vote now that the bill has become law:

The measure would allow noncitizens who have been lawful permanent residents of the city for at least 30 days, as well as those authorized to work in the U.S., including “Dreamers,” to help select the city’s mayor, city council members, borough presidents, comptroller and public advocate.

“Dreamers” are young immigrants brought to the U.S. illegally as children who would benefit from the never-passed DREAM Act or the Deferred Action for Childhood Arrivals program, which allows them to remain in the country if they meet certain criteria.

The “noncitizen” part is AP’s own gloss on the measure; the word doesn’t appear in the bill, but then the legal (and correct) term “alien” doesn’t, either. The second paragraph in the excerpt above, however, is not legally correct, at least under my reading of the new law.

There have been numerous iterations of the DREAM Act over the years (up to and including the current “American Dream and Promise Act of 2021”), and all have failed (thus far) to pass.

The Deferred Action for Childhood Arrivals (DACA) program — which provides work authorization and certain other immigration benefits to aliens who arrived in the United States under the age of 16 and who met other criteria — was an (unsuccessful) attempt by President Obama to force Congress to pass the DREAM Act.

Would-be beneficiaries of the failed DREAM Acts who do not otherwise have employment authorization in the United States (through DACA or some other means) thus would not be eligible to vote in municipal elections in NYC, despite AP’s assertions to the contrary.

New Nonimmigrant Voters. That said, there are plenty of employment-authorized lawful nonimmigrants (i.e., temporary visa-holders) who will be given the franchise under Int. 1867-2020A.

This category includes H-1Bs (workers in specialty occupations); H-2Bs (temporary non-agricultural workers); L-1s (intracompany transferees); O-1s (those “with extraordinary ability in sciences, arts, education, business, or athletics and motion picture or TV production”); P-1As (“internationally recognized athletes”); and I-nonimmigrant visa holders (who represent foreign media).

You will not be surprised to find that there are a lot of those folks in the nation’s financial and media center. And back in 2018, Forbes reported that 27 percent of all the players in Major League Baseball were foreign-born; NYC is home to MLB’s Yankees (who have played in the Bronx since 1923) and the Mets (home ballpark in Queens).

Further, as my colleague Rob Law explained last January, certain aliens under final orders of removal may also be eligible for employment authorization, applications for which are usually “rubber-stamped”. In addition, there are tens of thousands of nonimmigrant students in the United States with employment authorization, and NYC — home to 81 colleges and universities with almost 600,000 total students — probably has its fair share.

All that any of them would have to do to vote is to reside in NYC for 30 days and register. It is not clear from the legislative materials that the purpose of Int. 1867-2020A is to allow stockbrokers from Frankfurt, Chinese students, and power-hitting Dominicans to have a say in municipal matters in the Big Apple, but that will be the effect.

Implementation Problems. It will now be up to those at the New York city board of elections to figure out who will be allowed to vote, and who will not. I am rounding the corner on my third decade in the field of immigration, and I would have a bit of a problem making this determination myself.

The new law will also provide any number of snares for unwary aliens, as well. Those who are now newly enfranchised will be able to vote for municipal offices, but they will not be allowed to vote for statewide or federal offices.

Under section 237(a)(6)(A) of the Immigration and Nationality Act (INA), “Any alien who has voted in violation of any Federal, State, or local constitutional provision, statute, ordinance, or regulation is deportable.” I could easily see some alien municipal voter in NYC confusing the terms of Int. 1867-2020A with a general enfranchisement, and registering for a state or federal election, too.

And if an alien who would be covered by the (as yet unpassed) American Dream and Promise Act of 2021 but who currently does not have employment authorization were to register to vote (in reliance on the description in the AP article), that would-be voter would be dependent on a random NYC election-board worker to catch the fact that he or she is not eligible.

If that putative voter were to slip through, however, there is a distinct possibility that ICE under a future President Mike Pompeo, Nikki Haley, or Ron DeSantis would deem them deportable under section 237(a)(6) of the INA.

Dulling the Luster of the “Crown Jewel of American Liberties”. The biggest problem with the NYC bill, however, is that in extending the franchise to aliens — including those under final orders of removal who have no right to remain in the United States — Int. 1867-2020A dulls the luster of what Ronald Reagan described as “the crown jewel of American liberties”, the right to vote.

As an immigration judge, I would regularly preside over naturalization ceremonies, and the importance of this privilege was inevitably underscored — both by me and by the USCIS employees who did the heavy lifting. New citizens were instructed how to register to vote and advised of the importance of doing so.

Take out the DACA recipients (who likely aren’t going anywhere anytime soon, under the current administration or any future one) for a moment. What sense does it make to give nonimmigrant reporters the right to vote?

This bill turns the nation’s largest city into the functional equivalent of an Elks Lodge or condominium association (except that to join the Benevolent and Protective Order of Elks, you actually have to be a citizen and over the age of 21). Meaning no offense to those groups, votes in such organizations are usually for short-term, transient issues.

Governments exist to shape the future. That’s why the penultimate phrase in the preamble to the U.S. Constitution talks about “secur[ing] the Blessings of Liberty to ourselves and our Posterity” (emphasis added). Under this law, New York City’s voting rolls will include individuals who — by definition — won’t even be in NYC in the future. That’s what it means to be a “nonimmigrant”.

Aliens prove their intent to invest in the future of their communities and the nation by becoming citizens. Int. 1867-2020A requires no investment in the future of the city at all. A more apt analogy is likely to the restaurant patron who is choosing what meal to have now, not how the business will be run down the road.

According to CNBC, it’s not clear whether the bill will face challenges in the courts. I am not a New Yorker, nor am I a voting rights attorney, but I question whether a federalism-minded Supreme Court will intervene in what is, at its base, a local issue.

NYC voters may have their own opinions as to whether allowing nonimmigrants and aliens under final orders of removal to vote is a good idea or a bad one. Come 2023, when this law takes effect, however, there will be a lot more NYC voters to make that call — many of whom won’t be there in 2024.