The Vermont State Supreme Court has just ruled that non-citizens may vote in the state’s municipal elections because the provision in the State Constitution that defines eligible Vermont voters does not apply to municipalities.
“…we conclude that the statute allowing noncitizens to vote in local Montpelier elections does not violate Chapter II, § 42 because that constitutional provision does not apply to local elections.”
Arrived at, not based on the plain text of the relevant chapter, but as a result of past Court interpretations of it. Interpretations of what? Chapter II §42 of the Vermont State Constitution states.
Voter’s Qualifications and Oaths
Every person of the full age of eighteen years who is a citizen of the United States, having resided in this State for the period established by the General Assembly and who is of a quiet and peaceable behavior, and will take the following oath or affirmation, shall be entitled to all the privileges of a voter of this state:
You solemnly swear (or affirm) that whenever you give your vote or suffrage, touching any matter that concerns the State of Vermont, you will do it so as in your conscience you shall judge will most conduce to the best good of the same, as established by the Constitution, without fear or favor of any person.
Every person who will attain the full age of eighteen years by the date of the general election who is a citizen of the United States, having resided in this State for the period established by the General Assembly and who is of a quiet and peaceable behavior, and will take the oath or affirmation set forth in this section, shall be entitled to vote in the primary election.
Based on past precedent, the State’s Highest Court claims that §42 applies to state-wide and federal elections though nowhere in the State Constitution is that mentioned. I could find no reference at all to Federal Elections.
Chapter II §43 – §55 covers elections for all state-wide offices, including Governor, Lt. Governor, judges, State Senators, State Representatives, Secretary of State, Auditor of Accounts, Assitant Judges, Sheriffs, State Attorneys, Judges of Probate, and Justices of the peace. With one exception, these all appear to be county or state-wide offices. Hence, it seems logical that absent any specific reference to municipal elections, you could determine significant leeway in their conduct.
The one exception I found in the State Constitution is Justices of the Peace (emphasis mine).
Text of Section 52: Election of Justices of the Peace; Apportionment
Justices of the Peace shall be elected by the voters of their respective towns; and towns having less than one thousand inhabitants may elect any number of Justices of the Peace not exceeding five; towns having one thousand and less than two thousand inhabitants, may elect seven; towns having two thousand and less than three thousand inhabitants, may elect ten; towns having three thousand and less than five thousand inhabitants, may elect twelve; and towns having five thousand, or more, inhabitants, may elect fifteen Justices of the Peace. Justices of the Peace shall not exercise judicial powers, except that they may serve as magistrates when so commissioned by the Supreme Court
The election of these offices is by town (meaning municipality).
Regardless of any opinion issued by a previous court, a plain reading tells me that §42 applies to these local elections. So, now what?
If municipalities can decide to allow non-citizens to vote in local elections because the State Constitution is allegedly silent on the matter, non-citizens who do not qualify under §42 could not cast votes for this one local office because the constitution is not silent.
If non-citizens cannot vote for one local office, why would Constitutional restrictions in §42 not apply to other local offices?
If we look at Chapter I, Article 8 states;
Elections to be free and pure; rights of voters therein
That all elections ought to be free and without corruption, and that all voters, having a sufficient, evident, common interest with, and attachment to the community, have a right to elect officers and be elected into office, agreeably to the regulations made in this constitution.
Should this suggest that “rules” outlined in Article §42 of the State Constitution apply to “all elections”?
Chapter I Article 15 allows the legislature (and only the legislature) to suspend laws, but it cannot, through law, suspend the constraints of the regulations made in the constitution. Might this not make the law allowing municipalities to allow non-citizens to vote in local elections unconstitutional?
Nope.
Marsh and Woodcock demonstrate that a “freeman” is an individual with the ability to vote in statewide elections in Vermont. Therefore, under § 42, to exercise the “privileges of a freeman in this State” is to vote in statewide elections. These two precedents draw a distinction between statewide and local elections for purposes of the Vermont Constitution’s voting requirements. The distinction drawn is categorical, and we accordingly reject plaintiffs’ contention that these cases create a flexible, case-specific sliding scale for identifying local versus statewide issues and therefore what voter eligibility requirements must be met for any given election. These cases dictate that § 42 does not apply to municipal elections.
Given the recent ruling, are Municipalities constricted in any way by Chapter I Article 8 because, to my untrained eye, they seem relevant to the application of Chapter II §42?
And at the end of the day, the State Constitution itself is the highest law of the land, and “judicial decisions” are but momentary whims of a few judges, a sort of sliding scale of temperament.
I’m not a lawyer, and I admit there are likely many more things that might be at work, but I find it very difficult to believe that a provision that denotes citizenship as a requirement can be so easily ignored or be presumed to not apply in every election anywhere in the state Vermont.
“Every person who will attain the full age of eighteen years by the date of the general election who is a citizen of the United States.” … “touching any matter that concerns the State of Vermont, ” “agreeably to the regulations made in this constitution,” and “by the voters of their respective towns.”
Those are all in there but in no way reflect on each other in this context.
I should note that courts often choose to be limited by the nature of the assumptions presented in the case before them, but I have to wonder. If non-citizens were more likely to vote Republican, would we be having this conversation because Democrat Vermont would have seen it the way I’ve outlined it today?
For now, we should wonder what other squidgy bits in the state’s founding document do not protect the interests of the citizens of Vermont from the antics of liberals in places like Montpelier and Burlington.
As I said, I’m not a lawyer.
