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Villagers voted on May 8, Primary Election Day. According to election officials, voting ebbed and flowed throughout the day at Antioch University Midwest, with an overall turnout of 1,664 voters. For precincts in Yellow Springs and Miami Township, the total turnout was about 53 percent, compared to 22 percent county-wide. (Photo by Megan Bachman)

Photo by Megan Bachman

Noncitizen voting under fire

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Yellow Springs’ recent charter change allowing noncitizens to vote on local matters came under fire last week from the state’s chief election official.

In a press release, Ohio Secretary of State Frank LaRose criticized what he called Village efforts to “undermine the constitution” by granting noncitizens the right to vote, arguing that the measure is unconstitutional at the state and federal level. Local voters passed the charter amendment in the spring.

“Just when you thought 2020 couldn’t get any weirder, the village of Yellow Springs forces me as Ohio’s chief elections officer to restate the obvious — only U.S. citizens may vote,” LaRose said in a press release on July 30.

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“I won’t tolerate any local government who tries to subvert our laws, devalue American citizenship, and sew [sic] chaos in our elections,” he added.

In a separate letter also dated July 30, LaRose ordered the Greene County Board of Elections to reject any noncitizen voter registrations as well as to put measures in place to ensure that only citizens vote in November’s election. In that communication, LaRose suggested that local noncitizens who registered to vote could face criminal penalties and have their immigration status threatened.

This week, Denise Percival, deputy director of the Greene County Board of Elections, confirmed that the county board of elections would comply with LaRose’s order.

“As of today the board is going to follow the secretary’s order until told otherwise by a court of law,” she said.

Village Council members pushed back against LaRose’s arguments over the week and, at an emergency virtual meeting on Monday, Aug. 3, considered taking legal action to defend the provision.

Village Council President Brian Housh called LaRose’s order a “political stunt,” characterizing LaRose’s comments as “pejorative” and “demeaning.” Housh suggested that LaRose was deliberately misinforming citizens by not mentioning that the provision only applied to local measures and races, and not state or federal elections.

“The non-U.S. citizens that would register to vote reside here legally, are highly involved in our community and deserve to have a say,” Housh said at the meeting.

Housh also defended the Village’s home rule powers, which he claims gives Yellow Springs the ability to decide who can vote in municipal elections.

“The fundamental principle of home rule is that you cannot conflict with state law but you can add to it if it is not explicitly prohibited,” Housh said. “There is nothing in the Ohio or federal Constitution that denies non-U.S. citizen residents the right to participate in local elections.”

At the Aug. 3 meeting, Council members reaffirmed a previous commitment to not spend Village tax money to defend the provision. However, by relying on a combination of pro bono legal support, outside funds and internal expertise, the Village may still take legal action, Housh said.

As for the board of election’s role, Village Solicitor Breanne Parcels said on Monday that it doesn’t necessarily have to comply with the secretary of state’s order, citing other county board of elections in Ohio that have defied orders from the secretary of state’s office. She said it would take a court to definitively settle the matter.

“One official can’t declare a charter provision unconstitutional,” Parcels said. “Really it would take a court to determine whether it’s legal or not.”

In recent months, the county elections board had been working with Village officials to finalize the noncitizen registration forms ahead of an Oct. 5 registration deadline for the Nov. 3 general election. Local voters are set to decide on a municipal property tax levy renewal.

The Greene County Board of Elections, whose current plan is to follow LaRose’s directive, may choose to discuss the matter at its next meeting on Aug. 18, according to Deputy Director Percival.

History of the charter amendment

In the extended spring primary, Yellow Springs voters passed a charter amendment granting noncitizens the right to vote on local matters by a margin of 891–650,  58%–42%. The measure failed when Council first placed it on the ballot, in November 2019, inadvertently bundling it with another charter change allowing local 16- and 17-year-olds to vote. (In the spring, voters declined to lower the voting age.)

The charter change ballot measure on noncitizen voting that passed read:

“Residents of the Village of Yellow Springs who are non-U.S. citizens shall be electors and are eligible to vote for Yellow Springs local issues and elected officials pursuant to the home rule power and granted by this Charter. The general election laws shall control in all elections except as otherwise provided by this Charter.”

Both the Greene County Board of Elections and the Ohio Secretary of State’s office approved the issue’s placement on the Yellow Springs ballot when it was first proposed last year. Those approvals signaled to Village officials that the effort to enfranchise noncitizens was within their powers.

But this week, a spokesperson for LaRose wrote in an email that when the Secretary of State’s office approved the initial ballot language, they included a warning to the Village that the measure was unconstitutional. Last year, LaRose’s office only determined “whether the language accurately describes the issue to be voted on,” the spokesperson noted.

“Our office’s approval as to form does not in any way convey a determination as to the potential substantive validity or legality of this language,” a note at the bottom of the approved ballot language, shared by LaRose’s office this week, reads. It adds, “… allowing individuals who are under the age of eighteen or who are not United States citizens to vote, is unconstitutional under the Ohio Constitution and the United States Constitution.”

Constitutional or not?

LaRose reiterated in his letter and press release last week that the charter provision is “blatantly unconstitutional” under the Ohio Constitution, which states that “every citizen of the United States” is entitled to vote. In addition, home rule powers, he argues, only apply when they are not in conflict with state laws.

On Monday, Council members and Village officials disagreed with LaRose’s argument. They suggested that the home rule provision specifically empowers municipalities in this case, while the Ohio Constitution deliberately omits municipalities from its section on who can vote.

Regarding home rule powers, Section 3 of Article XVIII of the Ohio Constitution reads: “Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”

On voting, Section 1 of Article V of the Ohio Constitution reads, “Every citizen of the United States, of the age of eighteen years, who has been a resident of the state, county, township, or ward, such time as may be provided by law, and has been registered to vote for thirty days, has the qualifications of an elector, and is entitled to vote at all elections.”

Village Council Member Laura Curliss, an attorney, said the omission of municipalities from Section 1 was intentional.

“[LaRose] is ignoring the fact that it is not addressing municipalities, consistent with the home rule,” Curliss said. Curliss added that, in her view, Section 1 does not address the “full universe of voters,” and although it allows citizen voters does not necessarily disallow noncitizen voters.

Village Solicitor Parcels additionally pointed out that when the Ohio Constitution was first passed, in 1851, voting was not restricted to only U.S. citizens, and has changed multiple times over the years. The mention of “citizen,” was added after World War I, she said.

“Just about every state allowed alien voters who came from somewhere else to vote in elections,” Parcel said of voting before the 1920s.

In addition, Housh pointed out that LaRose was not equally enforcing all sections of Article V, as Section 6 still reads, “No idiot or insane persons shall be entitled to the privileges of an elector.”

“If he is stringent about the terms of the Ohio constitution, why is he not out advocating for Section 6, in addition to Section 1?” Housh said at the meeting.

Curliss also pushed back on LaRose’s contention in the press release that “a vote is a sacred right which many have fought and bled to protect — but only a right that is earned by birth or the oath of citizenship.” She noted that legal noncitizen residents have been allowed to enlist in the military for generations, and that there are 35,000 active military members who are noncitizens.

“Obviously those people put their lives on the line for the country as much as citizens do,” Curliss said.

Housh ended the Council meeting with a resolve to challenge the secretary of state’s actions.

“We’re going to be focusing on our Village values and not let people’s personal campaigns keep us from doing our amazing work,” he said.

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