Noncitizen voting plan on shaky ground
City attorney says charter amendment would probably be struck down in court

- Katia Hetter, Chronicle Staff Writer
Tuesday, July 13, 2004

A City Charter amendment before the San Francisco Board of Supervisors today to give noncitizen parents and guardians of public school children the right to vote in Board of Education elections would probably be struck down if challenged in court, according to City Attorney Dennis Herrera.

In a memo providing legal advice to supervisors on board President Matt Gonzalez's proposal to place the amendment on the November ballot, Herrera said the measure would probably be found to conflict with California constitutional requirements on voter eligibility.

"There is a substantial likelihood that a court would conclude that the amendment conflicts with the California Constitution and is therefore invalid, " Herrera said in the July 9 advice memo obtained by The Chronicle.

Gonzalez, the charter amendment's chief legislative sponsor, declined to comment Monday. Supporters of the measure said they disagree with the city attorney and contended that cities such as San Francisco that are governed by charters have additional legal leeway to decide local matters.

"The educational concerns of immigrant students are local to San Francisco, and the point of the home-rule doctrine is to allow San Francisco voters to decide what is best for the local educational system," said David Chiu, a former immigrants rights attorney who is working on the measure.

"Studies show that parental participation improves the quality of education for all students," Chiu said. "The more we can involve all of our parents, the better off all of our students will be."

Herrera's advice substantially reflects the same legal conclusion of his predecessor, former City Attorney Louise Renne. But Herrera notes there is precedent for the supervisors to introduce legally questionable legislation or ballot measures to challenge the limits of a law or overturn legal precedent.

"It is the prerogative of the city's elected policymakers to challenge the limits of the law ... so long as there is a cognizable legal argument in support of their challenge," Herrera's memo states.

When Renne was city attorney in 1996, she succeeded in going to court to stop a similar measure from making it to the ballot, contending the measure violated the state constitution.

Herrera has not taken a public position, legally, politically or otherwise on the proposed ballot measure, while Renne continues to do so, despite leaving office in 2001.

On Friday, she told The Chronicle that it would take an amendment to the California Constitution to grant noncitizens the right to vote in an election for any public office in the state, including the San Francisco Board of Education.

A spokesman for Herrera, Matt Dorsey, declined to comment on the legal advice to the board or on the proposed ballot measure. Dorsey said the office would be duty bound to defend the measure if it is placed on the Nov. 2 ballot and passes.

In the advice memo to the board, deputy city attorneys Julie Moll and Buck Delventhal, who also worked for Renne on the 1996 case, detailed several state legal obstacles to the proposed ballot measure, foremost among them Article 2 of the state constitution, which states: "A United States citizen 18 years of age and resident of this state may vote."

In interpreting the constitution, Moll and Delventhal wrote, the courts have concluded that only U.S. citizens can vote in California.

Though charter cities, such as San Francisco, have special power to regulate municipal elections and other local affairs under the state constitution's "home rule doctrine," that isn't likely to include the authority to establish different voter qualifications, the lawyers wrote.

Furthermore, while local governments in Massachusetts, Maryland, Illinois and New York have granted noncitizens the right to vote in some municipal elections, those programs have never been challenged in court, they said.