Item 39 - Resolution for Ballot Measure for Noncitizen Voting

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Consider Whether to Adopt a Resolution to Place a Ballot Measure on the Ballot for the November 5, 2024 Municipal Election Concerning Amending the City Charter to Permit Voting by Noncitizen Residents in City Municipal Elections November 7, 2023 Page 2 3 8 5 6 issue of proposing a charter amendment to permit voting by noncitizens in municipal elections was raised. At that time, the City Attorney advised that although towns in the states of Maryland and Vermont had implemented similar proposals, the questions posed presented an issue of first impression in California for a charter city like Santa Ana. The City Attorney advised that the City and County of San Francisco had adopted noncitizen voting rights for parents of school-aged children in school board elections and a proposal in New York City had been struck down. At that time, the City Attorney advised the Council that it could refer the matter to Council Charter Ad Hoc Committee for further research and feasibility analysis. Days after this recommendation was made, a trial court struck down the San Francisco measure. In August of 2023, the California Court of Appeal decided the case. In James V. Lacy, et al., v. City and County of San Francisco, et al., California Court of Appeal, First Appellate District, Case No. A165899, the Court reversed the trial court decision and upheld the legality of San Francisco’s voting program. However, the First District Court limited its decision to San Francisco only. The Court stated that: “We decide today solely the issue before us: the Constitution confers on the City the authority to expand the electorate for school board elections to include noncitizen parents or guardians of City children.” The court was careful to explicitly limit the breadth of its decision to San Francisco’s noncitizen voting program in school board elections. The Court stated that its decision “does not leave charter cities with limitless authority to determine the electorate for school board elections or, for that matter, the election of other municipal officials,” since state and federal constitutional constraints still apply. Some assert that the Lacy decision authorizes charter cities like Santa Ana to pursue and implement similar voting programs and others caution that the decision is limited. The fact is that the law is not clearly settled. The City Council is advised to consider that the proposal is certain to draw legal scrutiny and the San Francisco Chronicle reported that the lead plaintiff in the San Francisco case has vowed to sue any other California city that approves similar legislation. Lacy and the US Justice Foundation are reported to say that they will file challenges in federal court. Federal litigation can be complicated and expensive. A challenge of this type would require the City to engage expert outside legal counsel. On September 19, 2023, the City Council addressed a request by Councilmembers Hernandez and Vazquez to: Discuss and Consider Directing the City Manager and the City Attorney to Prepare for the City Council’s Consideration Resolution Options to Place the Issue of Noncitizen Voting in City Council and Mayoral Elections on the November 2024 Ballot and Further Discuss and Consider Directing the City Manager to Prepare a Cost and Implementation Analysis of Establishing Noncitizen Voting. A majority of the Council provided direction to prepare the documents necessary to proceed with the ballot measure as an advisory question.