A state appeals panel has determined nothing in California law or the San Francisco charter blocks noncitizens from voting in school board elections.
Although city voters amended the charter in 2016 to allow noncitizen voting in school board elections, by parents and guardians of school-age children, the lawsuit challenging the change started in March 2022. Named plaintiffs James Lacy and Michael Denny joined the U.S. Justice Foundation and the California Public Policy Foundation in arguing Proposition N and the ordinances it advanced violated the state constitution and elections code.
San Francisco County Superior County Judge Richard Ulmer Jr. found the effective ordinance void and unenforceable, prompting a challenge to the California First Appellate District Court. Justice Mark Simons wrote the panel’s opinion, published Aug. 8; Justices Gordon Burns and Danny Chou concurred.
According to court records, 59 noncitizens voted in 2018, two in November 2019, 31 in November 2020 and 235 in February 2022. The panel also noted Proposition N’s pamphlet arguments estimated up to a third of the city’s public school students have an immigrant parent otherwise unable to vote in school board elections. In 2021, the San Francisco Board of Supervisors enacted an ordinance making Proposition N permanent for all future school board elections.
On appeal, the city argued the Citizen Voter Provision in Article II of the state constitution sets a floor for voter qualifications — age 18, a U.S. Citizen and a California resident — but doesn’t prohibit a charted government from expanding the electorate. Opponents argued Article II also has a ceiling in that it directs state lawmakers to “prohibit improper practices that affect elections and shall provide for the disqualification of electors while mentally incompetent or serving a state or federal prison term for the conviction of a felony.”
The panel noted a distinction between the federal Constitution, which grants power to Congress, and a state constitution, which limits the powers of the legislature. That means, the panel explained, state lawmakers can do whatever isn’t explicitly forbidden, and challenges to that legislative power should be adjudicated with lawmakers getting the benefit of the doubt.
“We agree with the city that the plain language does not restrict the legislature’s discretionary power to expand the electorate to noncitizens,” Simons wrote. “The Constitution’s affirmative identification of who ‘may vote’ does not expressly deny such power. The additional direction to the legislature to disqualify certain groups does not necessarily imply that the constitution rigidly cements the universe of who may and may not vote.”
The plaintiffs cited an 1898 California Supreme Court opinion, Spier v. Baker, which addressed voting privileges, including those granted under the 1848 Treaty of Queretaro, ending the Mexican-American War. But the panel said that decision turned on “the granular specificity” of certain constitutional provisions and explained “the language in the Citizen Voter Provision is clearly dissimilar; whatever the wisdom of Proposition N, it simply does not expressly or by necessary implication directly contravene the Citizen Voter Provision.”
The panel also noted a 1926 amendment, which replaced language disqualifying Chinese natives from voting with a ban on “aliens ineligible to citizenship.” Because that provision addressed a subset of all noncitizens, Simons wrote, the panel reasoned the constitution doesn’t inherently contain a prohibition on enfranchising any noncitizen.
After establishing the state’s power to expand voting rights, the panel considered whether a charter city could do the same. Simons explained two constitutional provisions do just that, one in Article IX and another that section references in in Article XI.
“The history of home rule in the California Constitution demonstrates an intent to confer broad authority on charter cities over municipal affairs generally,” Simons wrote. “It makes sense to confer on charter cities the authority to expand the electorate where, as here, the city’s voters determine that doing so would better serve local needs.”
Simons said the plaintiffs’ challenge to the city’s authority relied “on a host of contentions that we find unavailing.” Among those was an argument that even if a city can grow the voting pool for municipal elections, it can’t do so with regard to school board positions.
“Plaintiffs’ contention that the construction we adopt will lead to bad policy is, like the city’s contention that it will lead to good policy, not material to the legal issue before us,” Simons wrote. “Though the Charter City School Board Provision contains no express grant of authority to expand the franchise, the provision is a broad grant of power to a charter city to determine how to select school board members.”
Although the panel reversed Judge Ulmer’s dismissal, it noted charter cities don’t have “limitless authority to determine the electorate for school board elections or, for that matter, the election of other municipal officials,” explaining the potential application of things like equal protection clauses of state and federal law.
The panel agreed state law generally stipulates voters must be citizens, but restated the assertion “the Election Code expressly exempts from these provisions school board elections where the city charter provides otherwise.” It further rejected an argument from the Immigration Law Reform Institute regarding vote dilution, saying an expansion of the voting pool — such as by lowering the voting age — is not inherently an unconstitutional dilution.
San Francisco City Attorney David Chiu represented the city, along with deputies Wayne Snodgrass and James Emery.
Several organizations and law firms filed supportive briefs for the city: Keker, Van Nest & Peters, R. Adam Lauridsen, Connie P. Sung, and Stephany Martinez Tiffer for Ron Hayduk, Hiroshi Motomura and Jennifer M. Chacón; Orrick Herrington & Sutcliffe, Mark S. Davies, Sheila Baynes, Kufere Laing and John Palmer for Oakland and San Diego Unified School Districts; ACLU Foundation of Northern California, Angélica Salceda; and ACLU Foundation of Southern California, Julia A. Gomez for Caregiver Organization.
Representing the plaintiffs is the Law Office of Chad D. Morgan.
Support briefs for the plaintiffs came from Public Interest Legal Foundation, J. Christian Adams; Lex Rex Institute, Alexander Haberbush for J. Kenneth Blackwell; and Immigration Reform Law Institute, Lorraine G. Woodwark.
Blackwell argued Proposition N “could” dilute the strength of Black American voters in San Francisco. But the panel said those assertions were “entirely speculative” and that Blackwell failed to allege supports intended to achieve that goal by adopting the referendum.