Lawsuit Claims Non-Citizen Voting in Burlington School Elections Breaches Vermont Constitution

Permitting foreign nationals to vote in Burlington School District elections violates the Vermont Constitution, a lawsuit filed Monday claims.

Brought by two Vermonters against the City of Burlington, the lawsuit alleges that a charter amendment adopted by the locality last year allowing noncitizens to vote in Burlington School District elections does not comport with the Green Mountain State’s founding document. The residents are supported by Restoring Integrity and Trust in Elections (RITE), an election integrity legal group.

“The charter change permitting noncitizen voting has changed the qualifications for voters as defined in [the Vermont Constitution] and the individual Plaintiffs are voters ‘within the voter pool for which those qualifications have been changed,’” the lawsuit reads. “Both individual Plaintiffs are registered voters who have voted and intend to continue voting in Burlington elections. Those votes will be diluted by noncitizen votes made possible by Burlington’s charter change.”

The City of Burlington adopted a charter amendment in March 2023 authorizing aliens who have legal status in the United States “to register and vote in all local elections.” In addition to this requirement, foreign nationals seeking to vote under the amendment must be at least 18 years old, have taken the Voter’s Oath, be a Burlington resident as specified by state law, and be “registered to vote with the Board of Registration of Voters not later than the deadline established by Vermont law for that election or meeting.”

The amendment was approved by Vermont’s Democrat-controlled General Assembly in May 2023, but was vetoed by liberal Republican Gov. Phil Scott that same month. The General Assembly subsequently overrode Scott’s veto on June 20, 2023, allowing the amendment to take effect.

Plaintiffs note how the city oath foreign nationals must recite before voting in Burlington School District elections — “which includes votes on the annual education budget as well as for members of a Board of School Commissioners” — conflicts with the Vermont Constitution’s Voter Oath. Rather than require noncitizen electors to pledge to vote in the state’s best interests, as specified by Vermont’s founding document, Burlington’s oath requires them to pledge to vote in the city’s best interests.

Plaintiffs argue this is problematic because “[s]chool budgets and school funding in Vermont are statewide, freeman issues,” meaning “votes regarding local school budgets directly impact the State budget and thus the financial interests of Vermonters statewide.”

“Once a school budget is approved by local voters, paying for it becomes the responsibility of the State through the State Education Fund,” the lawsuit reads. “Defendant has now expanded the electorate that determines educational issues to include noncitizens, even though those votes have substantial extra-municipal and statewide implications and thus directly implicate [the Vermont Constitution’s] limitation of the franchise to United States citizens.”

The lawsuit details litigation filed against other Vermont localities for approving noncitizen voting measures in years prior. Montpelier and Winooski’s adoption of charter amendments authorizing alien voting in their local elections in 2021 prompted the Republican National Committee to bring suits against the cities, which alleged that the measures violated the Vermont Constitution.

The Vermont Supreme Court ultimately struck down the RNC lawsuit against Montpelier in January 2023, ruling the state constitution does not “categorically” bar foreign nationals from voting in local elections. A lower court similarly dismissed the GOP’s challenge to Winooski’s charter amendment.

According to plaintiffs, however, “while the Supreme Court rejected the argument that all municipal elections are now subject to Section 42 [of the Vermont Constitution], it held that specific municipal votes would require United States citizenship if those votes were of statewide concern.”

In other words, plaintiffs are claiming the state Supreme Court left the door open for challenges to be brought against charter amendments permitting alien voting if such voting impacts statewide residents.

“The non-citizen voting movement achieves the left’s goal of legalizing foreign interference in American elections,” RITE President Derek Lyons said in a statement. “It threatens the rule of law and must be stopped before it further infects Vermont and other states in this country.”

Plaintiffs are asking the court to declare Burlington’s charter amendment as it relates to school board elections and education funding unconstitutional. They also request the court prevent the city and its employees from enforcing the amendment’s “application to any election that determines school board members or education funding for the City of Burlington, including enrollment of any noncitizen voters or allowance of noncitizen voting in such elections in the future.”