California Appeal Court Rejects Challenge Against Noncitizen Voting in San Francisco School Board Election

California Appeal Court Rejects Challenge Against Noncitizen Voting in San Francisco School Board Election
San Francisco Board of Education meets in San Francisco, Calif., on Oct. 12, 2021. (City of San Francisco Screenshot via The Epoch Times)
Lear Zhou
SAN FRANCISCO—The California Court of Appeal issued an opinion on Aug. 8 upholding noncitizen voting in the San Francisco school board election, which allows illegal immigrants to vote.
An extrapolative interpretation of the California Constitution was used in the opinion.
“A United States citizen 18 years of age and resident in this State may vote,” the California Constitution’s Citizen Voter Provision stated.
However, the opinion of the Appeal Court ruled that “neither the plain language of the Constitution nor its history prohibits legislation expanding the electorate to noncitizens.”
The ruling also supports that San Francisco as a charter city has the authorization to make a “home rule” to implement an expansion in local school board elections.
The Appeal Court ruling also reversed a ruling by trial court judge Richard B. Ulmer Jr. in July 2022. Judge Ulmer ruled that San Francisco’s ordinance violated the California Constitution.
“The ruling of the Court of Appeals denigrates the integrity of elections for the San Francisco school board by devaluing citizenship as the key qualification for voting, and opens the door for further erosion of election integrity throughout the state in Charter Cities,” plaintiff James V. Lacy stated in a press release sent to The Epoch Times.
He also told The Epoch Times he may not appeal to the California Supreme Court.
“In the last 13 years, every single member of the California Court of Appeals and the state Supreme Court has been appointed by a Democratic Governor,” Mr. Lacy said.
Mark B. Simons, the judge of the California Appeal Court who wrote the opinion, was appointed early in January 2000 by then Democratic Governor Gray Davis.
Whether the noncitizen voting in San Francisco’s local election violates the California Constitution is the ground argument of this lawsuit.
Judge Simons quoted in the opinion a ruling on the 2010 case Greene v. Marin County Flood Control & Water Conservation Dist.: “In interpreting a constitution’s provisions, our paramount task is to ascertain the intent of those who enacted it. ... If the language is ambiguous, however, we consider extrinsic evidence of the enacting body’s intent.”
The city attorney argued in court that identification of persons who “may vote” in the Citizen Voter Provision does not “preclude the expansion of the franchise to noncitizens.”
“The Court of Appeals has twisted around the use of the word ‘may’ in the Constitution to mean it is not a mandatory limitation, and coupled with an expansive view of ‘home rule powers’ of Charter cities, which are a fraction of the cities organized in the state, that it is OK to let noncitizens vote in school board elections,” Mr. Lacy told The Epoch Times. “Now Chinese consulate diplomatic staff members in San Francisco, who may even be members of the Chinese Communist Party, are qualified voters in SF school board elections. That simply cannot be what the intent of our state Constitution’s founders intended.”
San Francisco passed Proposition N in 2016, amending the City Charter to allow noncitizens who are adult parents or guardians of children under 19 years old to vote in school board elections.
The City’s Board of Supervisors enacted an ordinance later before the sunset Proposition N expired, and started implementing it in elections in November 2018.
Since the ordinance doesn’t have any other requirements, it means illegal immigrant parents or guardians also have the right to vote in corresponding matters.
The first year, even with months of outreach and over $300,000 spent, only 56 noncitizens registered to vote in the school board election in 2018.
In the next two years, only 2 (in November 2019) and 31 (in November 2020) noncitizens registered to vote.
After the lockdowns during the COVID-19 pandemic, and after the San Francisco Unified School District did not reopen schools when the pandemic was easing up, 235 parents voted in a February 2022 special election and contributed to the successful recall of the school board members Alison Collins, Faauuga Moliga, and Gabriella Lopez.
City Attorney David Chiu said in a statement, “The Court’s decision is a wonderful victory for immigrant parents, who can continue to exercise their right to vote in San Francisco school board elections.”
However, Mr. Lacy warned that an unanticipated consequence of the court allowing charter cities “home rule” power “may be that more conservative cities will now have a legal precedent to administer their elections to also require stricter voting rules than the rest of the state, such as presentation of valid government identification when voting.”
The rule has effects on charter cities, which comprise about 15 percent of all 478 cities in California.
Cities like Oakland and San Jose followed San Francisco to enact similar ordinances.
“Noncitizen voting also discriminates against the rights of citizens by diluting their vote,” Mr. Lacy said. “Now in San Francisco, black voters as an affinity group have less power at the polls, because of allowance for noncitizen voting.”
This violates the Equal Protection Clause of the U.S. Constitution (14th Amendment), according to Mr. Lacy.
He did not rule out putting that argument in a federal court challenge next time.