Is New York Law That Allows Immigrants To Vote and Serve on Juries Constitutional?

June 23rd, 2014

A New York State Senator has introduced a new bill, the New York is Home Act, that purports to grant “state citizenship” to immigrants. Among the rights of state citizenship granted are the right to vote, and the right to serve on juries. This is something of a misnomer. It isn’t really citizenship. The Constitution countenances state citizenship in at least two places.

First in the Article IV, Privileges and Immunities Clause:

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

Second, in Section I of the 14th Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 

But what this law is doing is not state citizenship in terms of the federal constitution. Under the Privileges or Immunities Clause, all citizens are entitled to all of the rights of other state citizens. This law, by its own terms, does not create *full* equality of citizenship. Rather it bestows very specific rights on a certain subset of people, without disturbing all other rights retained by “full” state citizens. So in no sense, does this law actually grant citizenship. Also, the 14th Amendment is not relevant, as those who benefit from this bill were neither born nor naturalized in the U.S. And this law should not, in any way, be confused for national citizenship.

In any event, there is nothing in the Constitution prohibiting states from allowing non-citizens to vote in local (not federal) elections, and serve on juries in state court.

Although, there may be a pre-emption issue, like in Arizona v. U.S. If the federal government determines that this law frustrates federal immigration policy, then it would be pre-empted. There is a 0% chance the Holder Justice Department will take this position.

I spoke with a reporter from La Voz, a Houston newspaper about this. It should run on Sunday.