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Judge strikes down San Francisco law allowing noncitizen parents to vote in school elections

San Francisco Chronicle 7/29/2022 By Bob Egelko
© Jessica Christian/The Chronicle

A San Francisco law allowing noncitizen parents to vote in local school board elections was overturned Friday by a judge who said the California Constitution permits only citizens to vote.

The ordinance, the first of its kind in the state, was approved by city voters as Proposition N in 2016, took effect in 2018 and was extended indefinitely by the Board of Supervisors in 2021. It allows noncitizens, including undocumented immigrants and legal residents, to vote for school board candidates if they are a parent or guardian of a school-age child and are not in prison or on parole for a felony conviction.

A lawsuit by conservative organizations cited a provision of the state Constitution that declares, “A United States citizen 18 years of age and resident in this State may vote.” Lawyers for the city contended the “may vote” language did not prohibit a local government from authorizing others to vote, but San Francisco Superior Court Judge Richard Ulmer disagreed.

“Transcendent law of California, the Constitution ... reserves the right to vote to a United States citizen, contrary to (the) San Francisco ordinance,” Ulmer said in a ruling that prohibits the city from enforcing the ordinance or counting noncitizens’ votes.

Based on the logic of the city’s argument, he said, “children under 18 and residents of other states ‘may also’ vote in California elections, which our Constitution does not allow.”

If the Constitution used the word “shall” instead of “may,” Ulmer said, it would require everyone 18 or older to vote. Mandatory voting is the law in some nations, such as Argentina, Australia, Belgium, Brazil, Egypt and Thailand, but not in the U.S. or any of its states, the judge said.

He also cited a state law passed by the Legislature that specified, “A person entitled to register to vote shall be a United States citizen.” Such laws “address matters of statewide concern: education and voter qualifications,” and cannot be overridden by a local government, Ulmer said,

Ulmer had signaled his views at a hearing Thursday, when he told a lawyer for the city that the power of charter cities such as San Francisco to regulate municipal affairs “does not override the Constitution.”

James V. Lacy, who challenged the ordinance along with his organizations, the United States Justice Foundation and the California Public Policy Foundation, said the ruling was “a verdict in favor of election integrity in California.”

Jen Kwart, spokesperson for City Attorney David Chiu, said the ruling is disappointing.

“We believe that allowing noncitizen parents to vote in school board elections is not only legally permissible, but strongly beneficial to our communities,” Kwart said in a statement.

The city could ask a state appeals court to reinstate the ordinance.

Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicle.com Twitter: @BobEgelko

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