January 5, 2023
IRLI shows appellate court that law is based on ethnic favoritism
WASHINGTON—The Immigration Reform Law Institute (IRLI) recently submitted a friend-of-the-court brief in an appeal seeking to revive a law the New York City Council passed giving the right to vote in city elections to aliens. At stake is the sovereignty of the people of the United States—American citizens—over the nation’s largest city.
Following briefing by IRLI, a Staten Island trial court has already struck down the law as unconstitutional. Now the law’s proponents have gone before the Appellate Division in the state court system in an effort to bring the law back.
IRLI shows in its brief on appeal that the law intentionally discriminates against some ethnic groups in favor of others, and for that reason is unconstitutional. In the judicial precedents interpreting the Equal Protection Clause of the Fourteenth Amendment, IRLI explains, discrimination against groups courts have held to be “protected classes” must be struck down unless it passes “strict scrutiny,” that is, can be shown to be necessary to achieve a compelling governmental interest. Aliens, racial groups, and groups defined by national origin have all been held to be protected classes.
IRLI shows that American citizens, too, should be considered a protected class. And the alien voting law lessens the relative voting strength of American citizens in New York City, by letting those who are not citizens vote.
The law also lessens the voting strength of voters in New York City who were born in this country and thus are of American national origin, because the law only adds persons born in other countries to the voting rolls. Those of American national origin are a protected class, as well, and laws burdening them have to receive strict scrutiny.
In fact, IRLI’s brief exposes the real motivation of this law: aggressive ethnic politics. Its proponents exalted that it would “shift” power away from the American-born—and therefore from such longstanding New York City ethnic groups as the Dutch and the Italians—to other national origin groups, such as city residents from the Dominican Republic, China, and Mexico, a large proportion of whom are aliens. In the words of one council member, “We’re all here to support our ethnic groups.”
The alien voting law cannot withstand the strict scrutiny it must receive. The U.S. Supreme Court has repeatedly held that citizens have a right to be governed by their fellow citizens and not foreigners, and that aliens by definition are outside of our political community. This fundamental interest American citizens have in democratic self-government far outweighs any interest New York City might claim in giving the vote to aliens.
“It’s rare for a law passed in an American legislative body to burden those of American national origin, let alone American citizens,” said Christopher Hajec, IRLI’s director of litigation. “But this law does both. It’s a basic constitutional principle that the power of self-government may not be transferred away from U.S. citizens—including of course foreign-born U.S. citizens. And once you see the game of ethnic politics they were playing, at the expense of city voters born in the USA, it becomes glaringly clear that this law is unconstitutional discrimination in voting.”
“This law is an attack on the very idea of American nationhood,” said Dale L. Wilcox, executive director and general counsel of IRLI. “The sovereign of this democratic nation is the people, U.S. citizens. When their power is eroded, our nation begins to lose its independence. And that erosion will escalate. If this law is not struck down, next there will be calls to allow aliens to vote in statewide and even federal elections. We hope the court is assisted by our brief, and invalidates this assault on the sovereignty of the American people.”
The case is Fossella v. Adams, No. 2022-05794 (N.Y. Supreme Court, App. Div., 2d Dept.).
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