The battle over New York City’s non-citizen voting law — and possibly the future of electoral politics in the city — will soon be weighed by the Richmond County Supreme Court at Staten Island, which is assigned to hear the suit filed by Republicans who contend the law violates New York’s constitution. 

Advocates for non-citizen voting rights disagree, and the state’s byzantine and seemingly contradictory laws make it anyone’s guess how the court will rule in the case. 

The deadline for the city to respond to the Republicans’ lawsuit is February 16. A  lawyer for the Republicans, Cornelius Murray, told the Sun the case is “pretty straightforward — the local law that the city enacted is inconsistent with the state constitution.”

The law, which made it through  the City Council in early December 2021, allows about 800,000 non-citizen residents of New York City to register with political parties and vote in municipal elections.

New York Republicans, with the help of the Republican National Committee, responded with a lawsuit asserting that the new law violated the state constitution, state election law, and municipal home rule law in New York State.

There may be even more nuance to the issue than the lawsuit suggests.

“I think the principal defense the city will have is in the provision that allows more specific laws to vary from the general law,” a professor of law at Columbia University, Richard Briffault, said.

He is referring to a provision of New York State election law that allows specific laws to supersede the state code:  “Where a specific provision of law exists in any other law which is inconsistent with the provisions of this chapter, such provision shall apply unless a provision of this chapter specifies that such provision of this chapter shall apply not-withstanding any other provision of law.”

“The general election law is a default,” Mr. Briffault said.

This could theoretically give New York City, or any other municipality, the ability to regulate its own elections as long as statewide laws do not specifically forbid doing so.

“The general election law is a default,” Mr. Briffault said.

The statute potentially could be overruled by the state’s Home Rule Law, which “expressly provides that a local government shall not be deemed authorized to adopt a local law which supersedes a State statute.”

The president of the borough of Staten Island, Vito Fossella, a plaintiff in the case, said the Republicans’ lawsuit “is not about a political party win or loss, it’s about what’s the right thing to do.” He added: “It’s about what is allowed under the state constitution currently, if you want to change that you can.”

He disagreed with the interpretation that the New York City Council could supersede state law on the matter.

“It’s not a so-called living constitution, it’s the law of the land. If people don’t like it they have the right to change it,” Mr. Fossella said.

One thing both proponents and opponents of the legislation agree on is that any ambiguity or differences in interpretation will be settled in the upcoming lawsuit.

“I don’t question the motives of the proponents, what I question is the legality of it,” Mr. Fossella continued. “Obviously I disagree with it, more importantly we are going to let the courts decide.”

It will be up to  the Staten Island court to decide whether any state statutes specifically prevent a municipality from allowing non-citizen residents to vote in municipal elections.

Specifically, the question is whether Home Rule Law will be interpreted as being able to supersede a state voting law stating that “no person shall be qualified to register for and vote at any election unless he is a citizen of the United States.”

Mr. Briffault, for one, told the Sun that Home Rule Law should not affect the city’s “ability to supersede the election law,” but ultimately the issue will be settled in court.

The lawsuit also contends that the non-citizen voting law breaches the state constitution. Some believe, however, that the state’s constitution simply guarantees the right to vote to citizens.

“The state constitution … does not limit the right to vote to citizens,” Mr. Briffault said. Non-citizen voting was once permitted in New York State but was banned in 1804. 

Non-citizen residents of New York City were allowed to vote in local school board elections between 1968 and 2003, setting some modern precedent for the practice.

The city’s law department, the mayor’s office, and the governor’s office have not responded to requests for comment.