PORTLAND – For three meetings, the Portland Charter Commission debated whether non-citizens who are legal residents should vote in city elections and if the law would allow it. In the end, we decided to dismiss the issue, but the question lives on as a petition begins to circulate.

Of the debate, the Press Herald reported that I and others “think there is a decent chance that the court would support the change” (“Denial of non-citizen vote mobilizes petition drive,” March 12).

There is a chance, but I wouldn’t — and didn’t — describe it as a decent one. In a memo to the commissioners (there were copies for the public at the meeting), I wrote, “the argument for this change (is) a legitimate one — if not one likely to succeed before the current (Maine Supreme Judicial Court).” There is an important difference between “some chance” and “a good chance.”

But remember the commission’s role: While it is important to be comfortable with the legality of the changes that we suggest, it is not our part to make that decision alone.

State law requires corporation counsel to attest that the commission’s recommendations comply with state law. Portland’s attorney assured us that if we elected to place that change on the ballot, he would certify the question.

With that in mind, we were free to decide the question on its substance.

As I wrote in the memo, “this question has never been squarely put before the (Supreme Judicial Court).” Ambiguity is a fact when it comes to the law — more so than many people realize. Courts exist to resolve that ambiguity. When it’s there, all we can do is make our best guess about what the outcome will be.

In this instance, I think convincing the Supreme Judicial Court to allow this extension of municipal power would be a heavy lift. The opening is a narrow one, and this court’s tendency is to move incrementally, rather than sweepingly.

Nevertheless, I see no problem with permitting municipalities to expand the right to vote in local elections as a matter of policy. Contrary to what many people think, there is nothing constitutionally sacred about the right to vote. It is a blessing of democracy, but it is also a tool.

At the city level, where our concerns are practical and voting is not the grand expression of a national identity, the question “who votes?” goes to whether the community functions better when all residents are at the table, or not. We lose nothing by soliciting the input of all members of our community as we seek to manage that community.

More importantly, because the question of who can vote is so fundamental to democracy, the right to decide who votes in our local elections should be up to us — not the state. We are granted great latitude in governing ourselves in almost all other ways. Why not in this most fundamental way?

But, some argue, if a city can allow non-citizens to vote, what’s to stop it from allowing children to vote? Or even people from another state?

The answer is, “Nothing.” The law allows us to pursue our own wisdom or folly in any number of ways, with experience and consequence our only guides.

I’m sure that if we chose to allow 12-year-old New Yorkers the right to vote in our own elections, experience would punish us appropriately. But as we are a city that governs itself, the power to make that decision should be ours alone.

Seeing that possibility in the law as it stands requires what some have called an “artful” reading. True enough. The role of the commission may be conservative, and I do not fault my fellow commissioners who opposed recommending the question.

But I would like to see issue live on. In matters purely municipal, the municipality should decide. What could be more purely municipal than a city election? If home rule is anything more than a convenience to the state, the power to decide who sits inside the municipal circle should be up to the city.

You may not think non-citizens should vote. But ask yourself how you feel about the rest of the state dictating to you the details of your own small democracy. A petition drive can put this issue on the ballot. The strongest approach, however, is an adjustment to the statutes of the state, made by the Legislature.

If the Legislature is disinclined to act, perhaps the Supreme Judicial Court can tell us just what home rule means when it comes to running a local election.

– Special to the Press Herald


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