The Immigrant Voting Project and
New York University Law Students for Human Rights
 

Resident Noncitizen Voting in New York :
A History

During the colonial and early republican period, debates over suffrage in New York centered on the highly contentious issues of property qualifications and race, not citizenship.  New York’s original Constitution of 1777 conferred suffrage rights on “every male inhabitant of full age” who met property qualifications.  Before being admitted to vote, electors would be required to take an oath or affirmation of allegiance to the state.[1] 

The elections law passed on March 24, 1801, did not refer to citizenship in the United States as a qualification for voters, and the provisions for oaths to be taken by challenged voters implied that the legislature viewed voting as a function of citizenship in New York, not the United States.  The 1801 law provided for election officials to challenge voters they suspected did not meet the residency or property qualifications.  In order to vote, the voters would have to take oaths/affirmations testifying that they met the requirements.  In addition, the law provided for inspectors to challenge voters they suspected "not to be well affected to the government of this state."  A voter subject to such a challenge would be required to take an oath stating that "I do abjure and renounce all allegiance and subjection to the king of Great-Britain, and to all and every other foreign king, prince, potentate and state whatsoever, and that I will bear true faith and allegiance to the state of New-York as a free and independent state; and that I will in all things, the best of my knowledge and ability, do my duty as a good and faithful citizen of the said state ought to do."[2]

In 1804, by change to the state election law statute, New York required voters to be citizens in order to vote[3].  Because this was a period when the relationship of state to national citizenship was evolving, however, it remains unclear whether one had to be a citizen of New York State or a citizen of the United States.  Some interpretations suggest that the provision intended state citizenship.

During the post-Revolutionary Constitutional Convention of 1821, delegates debated the inclusion of a racial qualification for suffrage and the removal of the requirement that only landowners could vote in senatorial elections.  While progressives claimed that democratic principles mandated suffrage for blacks and laborers, other delegates cautioned that allowing blacks and non-landowners to vote would lead to irresponsible government and insecure property rights.[4]  The revised Constitution of 1821 embodied a compromise, granting suffrage to “every male citizen of the age of twenty-one years” who met either a property ownership, rental payment, militia service, or public labor qualification.  Men of color were permitted to vote but had to meet stricter residency and property qualifications than applied to white men, including a requirement of being for “three years a citizen of this State.”[5]   

Although the Convention of 1821 did not address alien suffrage directly, delegates alluded to alien voting when explaining their opposition to granting the vote to blacks.  The aversion stemmed from racist views regarding the capabilities of blacks and aliens.  As one delegate explained, “It is not thought advisable to permit aliens to vote, neither would it be safe to extend it to the blacks.  We deny to minors this right, and why?  Because they are deemed incapable of exercising it discreetly, and therefore not safely, for the good of the whole community.”[6]  (New York did not grant full voting equality to blacks until required to do so by the Reconstruction-era amendments to the U.S. Constitution.  Similarly, efforts to amend the New York constitution to grant suffrage to women failed until the change was mandated at the national level.[7])

The elections law passed on December 3, 1827 replicated the language of the state Constitution by granting suffrage to male "citizens."  The oaths required of challenged voters demonstrate different concerns for white and black voters.  White voters who were challenged had to to take an oath stating that, "You do swear (or affirm) that you are a citizen of the United States, of the age of twenty-one years; that you have been an inhabitant of this state for one year next preceding this election...".  Black voters, on the other hand, had to take an oath stating that, "You do swear (or affirm) that you are of the age of twenty-one years; that for three years you have been a citizen of this state; that you have been an inhabitant of this state for one year next preceding this election..." [emphasis added]. [8] 

The root of the U.S. versus state citizenship requirement in relation to white versus black voters may have stemmed from the fact that it was not clear at this point whether or not blacks could be considered U.S. citizens.  (Thirty years later, the Dred Scott decision held that blacks were not U.S. citizens, then the Reconstruction Amendments declared that they were citizens.)  At any rate, the distinction seems to indicate that with regard to voting, the legislature was interpreting the citizenship concept fluidly, sometimes to refer to state citizenship and other times to refer to national citizenship.

Subsequent Constitutions adopted in 1846 and 1894 continued to use the phrase “male citizen” to describe those who had the right of suffrage.[9]  Legal arguments can be made both that this limited suffrage as the exclusive right of male citizens as well as that this simply guaranteed suffrage to male citizens.  Although none of New York’s Constitutions explicitly required citizenship in the United States for suffrage, leaving open the possibility that the use of the word “citizen” in the Constitution referred to state rather than national membership, from an early date state electoral laws required that voters demonstrate U.S. citizenship.  Analyzing one such law, which required, in addition to United States citizenship, a 90-day waiting period before newly naturalized citizens could vote, a New York court admonished the state legislature for drawing distinctions between naturalized and native-born citizens, holding that laws may not “discriminate between citizens upon the basis of how one became a citizen--whether by birth or by naturalization.”[10]  While distinctions between native-born and naturalized citizens were forbidden, however, distinctions between citizens and non-citizens remained. An 1866 state statute required all naturalized citizens to present their naturalization papers to vote[11].

The current version of New York’s Constitution provides that:

“Every citizen shall be entitled to vote at every election for all officers elected by the people and upon all questions submitted to the vote of the people provided that such citizen is eighteen years of age or over and shall have been a resident of this state, and of the county, city, or village for thirty days next preceding an election.”[12]

Although the Constitution does not explicitly require U.S. citizenship, New York’s current elections law, which last was amended in 1976 (derived from the Election Laws of 1949, 1922, and 1909), states that only citizens of the United States are qualified to vote, declaring that, “No person shall be qualified to register for and vote at any election unless he is a citizen of the United States and is or will be, on the day of such election, eighteen years of age or over, and a resident of this state and of the county, city or village for a minimum of thirty days next preceding such election.”[13]

Despite New York’s state laws requiring citizenship for suffrage, local voting by noncitizens has a long history in the state.  Most notably, noncitizen parents of children in the New York City public schools voted in community school board elections from 1969 until 2003, when the community school boards were abolished.[14]

In the early 1993, legislation was introduced in the New York State Assembly and Senate to restore voting rights to noncitizens.  The bills, which differed in which immigrants would be allowed to vote and in what elections, were subsequently re-introduced but have not yet been enacted.

In 2003, discussions related to a possible reform of the New York City Charter provided the impetus for the current efforts to grant noncitizens voting rights in municipal elections.

References

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