NYC's new measure allowing noncitizens to vote is 'unconstitutional': Andrew McCarthy

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What do New Yorkers think about letting noncitizens vote in local elections?

The New York City council's recent approval of a measure allowing legal, noncitizens to vote in local elections is "unconstitutional," National Review Institute senior fellow Andrew McCarthy told Fox News Digital.

The city council approved the legislation last Thursday, giving the right to an estimated 800,000 noncitizens who have lived in the city for at least a month — mostly green card holders and others with work authorization — the right to vote in municipal elections. That right would extend to any primary, special, general or run-off election for mayor, comptroller, public advocate, borough president or council member, as well as local ballot initiatives. 

"Noncitizens should not be allowed to vote because it is a violation of New York's state constitution, which explicitly invokes the word 'citizen,' repeatedly, in defining the qualifications for voting," McCarthy, former assistant U.S. attorney for the Southern District of New York, said.

Activists participate in a rally on the steps of City Hall ahead of a City Council vote to allow lawful permanent residents to cast votes in elections to pick the mayor, City Council members and other municipal officeholders, Thursday, Dec. 9, 2021, in New York. (AP Photo/Mary Altaffer)

The first article of New York State's Bill of Rights states that "every citizen shall be entitled to vote at every election for all officers elected by the people … provided that such citizen is [18] years of age or over and shall have been a resident of this state, and of the county, city, or village for [30] days next preceding an election."

The New York City measure will allow noncitizens who have been lawful permanent residents of the city for at least 30 days, as well as those authorized to work in the U.S., including so-called "Dreamers," to help select the city's mayor, city council members, borough presidents, comptroller and public advocate.

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McCarthy added that the qualifications for holding a New York City office are also set in the Constitution.

"They limit officeholders to citizens." he explained. "Obviously, if the City Council believes it can ignore the state constitution on the matter of who is permitted to vote, there is no reason to believe it would not similarly ignore the Constitution regarding qualifications for holding office."

Andrew McCarthy, former assistant U.S. attorney for the Southern District of New York, speaks during a House Intelligence Committee hearing on Capitol Hill in Washington, D.C. June 12, 2019. (Anna Moneymaker/Bloomberg)

The consequence of such legislation, he added, is "immense," not only for New Yorkers but for "American governance and culture."

"Obviously, when noncitizens vote, it dilutes the votes of citizens," he explained. "The concept that the votes of citizens count is a bedrock of constitutional democracy. Also fundamental is the concept of citizenship, to which singular allegiance to the nation and its laws is basic."

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McCarthy continued: "If citizenship is eviscerated, so are our ties to the nation and to the ideal that we are a unified political community. This is why citizenship has always been a prerequisite to voting. To be a citizen is not merely to have the rights but also the obligations of being an American. Citizenship implies a commitment to the nation and its principles, which is what makes the country work, and makes us a unique national community."

The measure will allow 800,000 noncitizens to "enact laws requiring the redistribution of the wealth and property of citizens," even if they have only lived in New York for a month, McCarthy said.

Absentee ballots sit in a ballot box during early voting in the primary election, Monday, June 14, 2021, at the Church of St. Anthony of Padua in the Soho neighborhood of New York. (AP Photo/Mary Altaffer, File)

Democratic New York City Council member Kalman Yeger of Brooklyn broke ties with most vocal lawmakers in his Party to voice concerns with the legislation's constitutionality, telling Fox News, "The New York State Constitution limits voting to ‘citizens,’ as does New York State Election Law."

"The City Council has no legal authority to provide something greater than state law or the state Constitution," the councilman said. "The most unfortunate part about this whole mess is that the sponsors of this legislation know this, and they don't care, because they legislate for the press release, and they'll be gone from the Council in three weeks, well before the courts strike this down."

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Republican New York state Rep. Nicole Malliotakis called the legislation "careless" in a Thursday statement.

"There is nothing more important than preserving the integrity of our election system," Malliotakis, who represents Staten Island, said. "The government should be working to create more trust in our elections, not less. The right to vote is a sacred right given only to United States citizens. This careless legislation dilutes the voices of American citizens and is not in line with the views of the vast majority of our city. My local colleagues and I pledge to take the city to court and challenge this legislation."

Representative Nicole Malliotakis, a Republican from New York, speaks during a Select Subcommittee On Coronavirus Crisis hearing in Washington, D.C., May 19, 2021. (Susan Walsh/AP Photo/Bloomberg via Getty Images)

Democratic city and state lawmakers cheered the city council's passage of the bill, which now goes to Mayor Bill de Blasio's desk for signing. The mayor's office did not respond to an inquiry from Fox News.

"In one of the most diverse cities in the world, we need to ensure that there is adequate representation for all New Yorkers. That starts by expanding the scope of who is allowed to vote in our local elections," New York City Council Member Ydanis Rodriguez, who introduced the legislation, said in a statement Thursday. "Immigrants in New York City own over half of the local businesses and contribute over $190 billion dollars to the citywide GDP."

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Rodriguez added that more than half of the city's "front-line essential workers are immigrants" and about one in five "are noncitizen New Yorkers."

New York City-based noncitizens will be eligible to register to vote by December 2022 and cast ballots by January 2023. Undocumented immigrants will not be allowed to vote, as is the case for all noncitizen voting legislation that exists in the U.S. today.

Democratic New York Rep. Jamaal Brown, who represents Yonkers, called it a "huge victory" in a Friday tweet.

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"Yesterday, the immigrant community in NYC had a huge victory," he wrote. "Over 800,000 legal residents now have the right to vote in municipal elections. Hopefully this will motivate other towns and cities to implement similar legislation. Immigrants must have their voices heard."

Other prominent New York Democrats including Alexandria Ocasio-Cortez, who represents the Bronx; Jerry Nadler, who represents parts of Manhattan and Brooklyn; and Carolyn Maloney, who represents parts of Manhattan and Brooklyn, have not commented on the legislation.