City Attorney Office
www.santa-ana.org/city-attorneys-office
Item # 39
City of Santa Ana
20 Civic Center Plaza, Santa Ana, CA 92701
Staff Report
November 7, 2023
TOPIC: Consider Whether to Adopt a Resolution to Place a Ballot Measure on the Ballot for the November 5, 2024 Municipal Election Concerning Amending the City Charter to Permit Voting by Noncitizen Residents in City Municipal Elections
AGENDA TITLE
Consider Whether to Adopt a Resolution Calling and Giving Notice of a General Municipal Election to be held in the City of Santa Ana on November 5, 2024, Requesting Consolidation with the Statewide General Election, and Placing a Ballot Measure Before the Voters Asking Whether to Amend the Santa Ana City Charter to Authorize and Implement Noncitizen Voting in Municipal Elections
RECOMMENDED ACTION
Approve a Resolution Calling and Giving Notice of a General Municipal Election to be held in the City of Santa Ana on November 5, 2024 for the Submission of a Ballot Measure to the Qualified Voters Proposing an Amendment to the Santa Ana City Charter to Authorize and Implement Noncitizen Voting in Municipal Elections.
RESOLUTION NO. 2023-XXX entitled A RESOLUTION OF THE CITY COUNCIL OF
THE CITY OF SANTA ANA CALLING AND GIVING NOTICE OF A GENERAL
MUNICIPAL ELECTION TO BE HELD IN THE CITY OF SANTA ANA ON NOVEMBER 5, 2024 FOR THE SUBMISSION OF A BALLOT MEASURE TO THE QUALIFIED
VOTERS ASKING IF THE CITY OF SANTA ANA SHOULD PERMIT NONCITIZEN VOTING IN ALL CITY MUNICIPAL ELECTIONS (includes determination that the Resolution is not subject to the California Environmental Quality Act (CEQA) pursuant to sections 15060(c)(2) and 15060(c)(3) of the State CEQA Guidelines because it will not result in a direct or reasonably foreseeable indirect physical change in the environment and it is not a “project” as defined in section 15378 of the State CEQA Guidelines) GOVERNMENT CODE §84308 APPLIES: No
DISCUSSION
In July of 2022, while considering recommendations from a Council Ad Hoc Committee formed to review and recommend amendments to the City of Santa Ana City Charter, the
Consider Whether to Adopt a Resolution to Place a Ballot Measure on the Ballot for the November 5, 2024 Municipal Election Concerning Amending the City Charter to Permit Voting by Noncitizen Residents in City Municipal Elections November 7, 2023
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issue of proposing a charter amendment to permit voting by noncitizens in municipal elections was raised. At that time, the City Attorney advised that although towns in the states of Maryland and Vermont had implemented similar proposals, the questions posed presented an issue of first impression in California for a charter city like Santa Ana. The City Attorney advised that the City and County of San Francisco had adopted noncitizen voting rights for parents of school-aged children in school board elections and a proposal in New York City had been struck down. At that time, the City Attorney advised the Council that it could refer the matter to Council Charter Ad Hoc Committee for further research and feasibility analysis. Days after this recommendation was made, a trial court struck down the San Francisco measure.
In August of 2023, the California Court of Appeal decided the case. In James V. Lacy, et al., v. City and County of San Francisco, et al., California Court of Appeal, First Appellate District, Case No. A165899, the Court reversed the trial court decision and upheld the legality of San Francisco’s voting program. However, the First District Court limited its decision to San Francisco only. The Court stated that: “We decide today solely the issue before us: the Constitution confers on the City the authority to expand the electorate for school board elections to include noncitizen parents or guardians of City children.” The court was careful to explicitly limit the breadth of its decision to San Francisco’s noncitizen voting program in school board elections. The Court stated that its decision “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.
Some assert that the Lacy decision authorizes charter cities like Santa Ana to pursue and implement similar voting programs and others caution that the decision is limited. The fact is that the law is not clearly settled. The City Council is advised to consider that the proposal is certain to draw legal scrutiny and the San Francisco Chronicle reported that the lead plaintiff in the San Francisco case has vowed to sue any other California city that approves similar legislation. Lacy and the US Justice Foundation are reported to say that they will file challenges in federal court. Federal litigation can be complicated and expensive. A challenge of this type would require the City to engage expert outside legal counsel.
On September 19, 2023, the City Council addressed a request by Councilmembers Hernandez and Vazquez to: Discuss and Consider Directing the City Manager and the City Attorney to Prepare for the City Council’s Consideration Resolution Options to Place the Issue of Noncitizen Voting in City Council and Mayoral Elections on the November 2024 Ballot and Further Discuss and Consider Directing the City Manager to Prepare a Cost and Implementation Analysis of Establishing Noncitizen Voting. A majority of the Council provided direction to prepare the documents necessary to proceed with the ballot measure as an advisory question.
Consider Whether to Adopt a Resolution to Place a Ballot Measure on the Ballot for the November 5, 2024 Municipal Election Concerning Amending the City Charter to Permit Voting by Noncitizen Residents in City Municipal Elections November 7, 2023
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On October 17, 2023, the documents were presented to the City Council and further direction was given to staff to modify the recitals in the Resolution, expand the original proposal from voting in city council and mayoral elections to all municipal elections, including elections on referenda, initiative, and ballot questions and prepare the text necessary to present the matter to the voters as an amendment to the City Charter.
The Resolution before the City Council incorporates Council direction with the exception of a recital citing racism as the reason for citizen voting eligibility. The Council should also be aware that certain statements and facts included in the recitals that the Council directed to be added have not been independently verified.
FISCAL IMPACT
Estimated costs for a City General Municipal Election on November 5, 2024 are $279,085 - $327,742, as noted for the previous Council action calling the election for the submission of a ballot measure.
The estimated cost to add an additional measure (3000 words and 2 pages) is $8,500.
Sufficient funds to accommodate the 2024 General Municipal Election will be presented to City Council for consideration during the FY 2024/25 budget approval process. (Account No. 01107031 62300)
If the measure is approved by the voters and challenged, estimated legal costs could exceed $500,000. Additional costs to implement the change to Charter Section 1203, if approved, are unknown at this time.
EXHIBIT(S)
1. Proposed Resolution
Submitted By: Sonia Carvalho, City Attorney
Approved By: Steven A. Mendoza, Acting City Manager