On August 8, 2023, in Lacy v. City and County of San Francisco (Aug. 8, 2023, A165899) Cal.App.5th, the California Court of Appeal for the First District upheld San Francisco’s Charter provision permitting noncitizen parents or guardians of children to vote in San Francisco school board elections.

San Francisco voters approved the charter amendment in 2016. San Francisco conducted several elections under this noncitizen voting program before it was challenged in March 2022.

Charter Cities’ Authority to Expand Voter Eligibility in Local Elections

There were two main issues before the court. First, the plaintiffs argued that Article II, Section 2(a) of the California Constitution only allows citizens to participate in elections. That provision states: “A United States citizen 18 years of age and resident in this State may vote.” After analyzing the plain text and legislative history of this provision, the court found that the constitution’s definition of who may vote does not prohibit the Legislature from expanding the electorate to noncitizens.

Second, the plaintiffs contended that even if the constitution allows for expansion of the electorate to noncitizens, only the Legislature has the authority to modify voter qualifications and that charter cities like San Francisco lack the ability to do so. Again, the court rejected the plaintiff’s argument, holding that the provision granting charter city authority over the “manner” of election or appointment of boards of education (Article IX, section 16, subdivision (a)) and the “municipal affairs” provision (Article XI, section 5) allow charter cities to expand voter eligibility in local elections.

The Broader Implications of the Ruling

Conscious of the potential implications, the court was careful to explicitly limit the breadth of its decision to San Francisco’s noncitizen voting program. It added that its conclusion “does not leave charter cities with limitless authority to determine the electorate for school board elections or, for that matter, the election of other municipal officials,” since state and federal constitutional constraints still apply. The fate of other potential changes to voter qualifications—such as lowering the minimum age below 18 years old—is unclear, although Lacy certainly establishes a springboard for such charter amendments in the future.

For more information on this case or other matters relating to elections, please contact your RPLG attorney or Andrew Shen.