WASHINGTON—Representing DC politician Stacia Hall, Second Amendment activist Dick A. Heller, and five other U.S. citizens registered to vote in the District of Columbia, the Immigration Reform Law Institute (IRLI) has filed its response/reply brief in the DC Circuit Court of Appeals, which is considering plaintiffs’ case against DC’s law allowing noncitizens—including illegal aliens—to vote in local DC elections.
Previously, in a brief and flawed order, a lower federal court had dismissed the case for lack of standing, and much of IRLI’s latest brief is occupied with refuting the claim of the DC Board of Elections that letting noncitizens vote somehow does not dilute the votes of citizens, even though the latter are now forced to vote alongside the former, and that any effect on the voting strength of citizens, as a group, is only “accidental.”
On the merits of the case, the Board of Elections also claims that American citizens are not a “protected class” under the Constitution’s guarantee of equal protection of the law, even though noncitizens—that is, aliens—are a protected class. When a law burdens a protected class, courts subject that law to “strict scrutiny,” sustaining it only if it is narrowly tailored to serve a compelling governmental interest—and, to put it mildly, there appears to be no compelling governmental interest in letting noncitizens vote in U.S elections.
The DC Circuit has never ruled on whether American citizens are a protected class. The Board of Elections claims, in particular, that American citizens are too “powerful” a group to have protected status, and thus any law burdening them should be upheld if it merely has a rational basis. In its brief, IRLI takes issue with that view, responding that:
the principals of equal protection disallow discrimination based on general suspect characteristics, such as race, national origin, and citizenship status, leaving the circumstances of a case to decide which particular group defined by those characteristics needs protection. After all, if a previously- or generally-powerful group is harmed by a particular law or governmental practice, it is no longer “powerful” in the circumstances before the court. . . For whatever reason, U.S. citizens and native-born Americans, as classes, were not all-powerful in DC when the [law letting noncitizens vote] was passed, and in the circumstances of this case, Plaintiffs, as members of those classes, have not come before the court below or this Court from a place of power and privilege needing no real defense from the Constitution.
IRLI also points out that the Constitution does not “enshrine a kind of caste system, in which some groups are hereditary victims, and others hereditary oppressors.” Rather, the Constitution protects all even-handedly—including American citizens.
“The mindset of the DC Board of Elections is extraordinary. It is willing to distort the law and declare that American citizens receive no real protection in the Constitution even when a law targets them,” said Dale L. Wilcox, executive director and general counsel of IRLI. “But of course the Board has to say this; in the end, the only way to defend a law burdening citizens and their right to self-government is to claim that the American people, as a group, are of no real account in the Constitution their forefathers established. We hope the court sees the profound error of that view, recognizes that American citizens are a protected class in these circumstances, and strikes down this law.”
The case is Hall v. DC Board of Elections, No. 24-7050 (DC Circuit).
