The Latest Failed Efforts to Block Noncitizen Voting in D.C. Local Elections
November 7, 2024
By: Megan Killpatrick
In December of 2022, the Council of the District of Columbia passed the Local Resident Voting Rights Amendment Act of 2022, which amended the D.C. Election Code to allow noncitizen residents of the district to vote in local elections. The Act defines “local elections” to only include elections for the city’s mayor, council members, attorney general, and state board of education members. Since its passing, the Act has withstood multiple attempts by House Republicans to invalidate it, as well as a judicial challenge by citizen residents of D.C. Despite these challenges, noncitizens were per
mitted to vote for the first time in D.C. in the city’s July 2024 primary elections. According to the D.C. Board of Elections, more than 500 noncitizens were registered to vote ahead of that election.
Before going into effect on February 23, 2023, Republican members of the House of Representatives tried in two separate attempts to block the Act. The first attempt, H.J.Res.24, was passed by the House a few weeks before the Act took effect, before predictably dying in the Democrat-led Senate. The second attempt, H.R.192, failed to come to a vote before the Act’s effective date, but was eventually passed by the House nearly two years later in May of 2024 before also stalling in the Senate. The temporary revival of H.R.192 was likely due to the March 2024 decision of the United States District Court for the District of Columbia in Hall v. D.C. Bd. of Elections, which dismissed a claim by citizen voters of D.C., who challenged the Act on a theory of vote dilution.
In Hall, Judge Amy Berman Jackson (yes, that Amy Berman Jackson) held that the citizen voters of D.C. lacked standing to challenge the Act. According to Judge Jackson, the citizen plaintiffs failed to show an “injury-in-fact” because “their votes will not receive less weight or be treated differently than noncitizens’ votes; they are not losing representation in any legislative body; nor have citizens as a group been discriminatorily gerrymandered, “packed,” or “cracked to divide, concentrate, or devalue their votes.”
Before Hall was decided, the New York State Court of Appeals held in Fossella v. Adams that officeholders had standing to challenge a similar New York City law permitting noncitizen voting. In response to this ruling and in an attempt to bolster their standing claim, the plaintiffs in Hall argued in supplemental filings that one of their plaintiffs, who is currently running for office in D.C. and had been “planning to run for public office” at the time the case was filed, had standing as a candidate as well as a citizen voter. Judge Jackson rejected this argument, emphasizing the difference between officeholders seeking reelection and individuals intending to be candidates in an election.
The plaintiffs in Hall have appealed the District Court’s dismissal, and that case is pending before the D.C. Circuit.
As of now, noncitizen residents of the District of Columbia are, for the second time ever, eligible to vote in the upcoming November D.C. local elections. These noncitizen voters join a cohort of noncitizens eligible to vote across the country, including in certain municipalities of California, Maryland, and Vermont. However, the threat of disenfranchisement remains. In Fossella v. Adams, for example, the New York court ultimately held that the challenged law permitting noncitizens to vote violated the State Constitution.