SCOVT declines to overrule 200-year-old precedent and holds that the voter- citizenship requirement of Chapter II, § 42 of the Vermont Constitution does not apply to municipal elections.

 Ferry  v. City of Montpelier, 2023 VT 4 [filed 1/20/2023]

EATON, J. In this declaratory-judgment action, we are asked to consider whether a statute allowing noncitizens to vote in City of Montpelier elections violates the voter-eligibility requirements set forth in Chapter II, § 42 of the Vermont Constitution. 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. We accordingly affirm the trial court’s grant of the City’s motion to dismiss.

Chapter II, § 42 of the Vermont Constitution provides: 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:

Because § 42 is an older constitutional provision with a complicated history, our analysis of the text requires historical analysis. When we look to the plain text of a constitutional provision, we often simultaneously rely “on historical context to illuminate [its] meaning.” State v. Misch, 2021 VT 10, ¶ 12, 214 Vt. 309, 256 A.3d 519 (per curiam) 

From this history, we know that “voter” in § 42 is synonymous with “freeman,” and since 1828, at the latest, citizenship has been required to exercise the “privileges of a freeman in this State.” The operative question then becomes: what does it mean to have the “privileges of a freeman” under § 42? ¶ 33. Our precedents answer this question.

Marsh and Woodcock demonstrate that a “freeman” is an individual with the ability to vote in statewide elections in Vermont. State v. Marsh, N. Chip. 17 (1789); Woodcock v. Bolster, 35 Vt. 632 (1863) Therefore, under § 42, to exercise the “privileges of a freeman in this State” is to vote in statewide elections. These cases dictate that § 42 does not apply to municipal elections.

Plaintiffs assert that this conclusion is incorrect. First, they argue that the plain text of § 42 clearly applies to voters in all Vermont elections. Second,they argue Woodcock and Marsh , “outmoded” and should not be applied because of changes over time. 

Principles of stare decisis are a necessary lens through which to evaluate these arguments. “[T]his Court is not a slavish adherent to the principle of stare decisis, but we will not deviate from policies essential to certainty, stability, and predictability in the law absent plain justification supported by our community’s ever-evolving circumstances and experiences.” State v. Carrolton, 2011 VT 131, ¶ 15; see Demag v. Better Power Equip., Inc., 2014 VT 78, ¶ 14 (recognizing that changes in social and economic circumstances over time may require deviation from precedent). 

Plaintiffs’ arguments do not convince us that Woodcock and surrounding precedents were wrongly decided then or that changed circumstances since those decisions require us to reach a different conclusion now.

Plaintiffs claim was properly dismissed on the merits because our precedents demonstrate that § 42 does not apply to municipal elections and we decline to overrule or abrogate those precedents in this case. 

Affirmed.

 How cited

SCOVT NOTES: 

 

1) NONCITIZEN VOTING

Noncitizen voting is not a novel idea. The right to vote is not an incident of U. S. citizenship, but is a matter of state law.  Historically, other states have permitted foreigners to vote:

The privilege to vote in any State is not given by the Federal Constitution, or by any of its amendments. It is not a privilege springing from citizenship of the United States. Minor v. Happersett, 88 US. 162 (1875)  It may not be refused on account of race, color or previous condition of servitude, but it does not follow from mere citizenship of the United States. In other words, the privilege to vote in a State is within the jurisdiction of the State itself, to be exercised as the State may direct, and upon such terms as to it may seem proper, provided, of course, no discrimination is made between individuals in violation of the Federal Constitution. The State might provide that persons of foreign birth could vote without being naturalized.

Pope v. Williams, 193 US 621, 632-33 (1904) (citing Minor v. Happersett for its statement that under certain circumstance's the constitutions of Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Minnesota, Missouri and Texas permit voting by persons of foreign birth before naturalization.)

2) STARE DECISIS and CONSTITUTIONAL INTERPRETATION

This case -- involving a test of an ancient interpretation the Vermont Constitution -- recites a standard requiring “plain justification" supported by evolving community experience, to overrule the precedent. 

The cases cited by the Ferry Court for this standard did not involve a constitutional issue. State v. Carrolton, 2011 VT 131, ¶ 15; Demag v. Better Power Equip., Inc., 2014 VT 78, ¶ 14.  They are in a line of authority that says “mere disagreement” is not grounds to overrule recent precedent, "especially where the precedent could be changed easily by legislation at any time.” O’Connor v. City of Rutland, 172 Vt. 570, 570, 772 A.2d 551, 552 (2001) (mem.); State v. Berini, 167 Vt. 565, 566, 701 A.2d 1055, 1056 (1997) (mem); see also Haupt v. Triggs , 2022 VT 61.

Just months ago the Court overruled a constititional interpretation simply because it was “decided incorrectly.” State v. Downing, 2020 VT 101 ¶ 22 (overruling a case that misinterpreted a bail statute expressed in terms identical to the Constitution). The Ferry Court holds the challenged precedent was correctly decided, thus leaving the requirement of “plain justification” in constitutional cases mere dictum.

Downing is consistent with decisions of the U. S. Supreme Court that the rule of stare decisis is relaxed in constitutional cases, because judicial action is the only recourse short of constitutional amendment. E.g. Smith v. Allwright, 321 U.S. 649, 665 (1944). But cf. Arizona v. Rumsey, 467 U.S. 203, 212 (1984) (Although adherence to precedent is not rigidly required in constitutional cases, any departure from the doctrine of stare decisis demands "special justification")

Indeed, some recent Vermont Supreme Court cases involving statutory interpretation do not follow the O’Connor caution. Instead, the Court has said it will overrule prior case law when it  determines the  earlier decision is "simply wrong." In re SD, 2022 VT 44 (overruling a 2007 case and holding the statutes grant no right for the State to appeal the dismissal of a delinquency petition). This simply-wrong standard traces back to a comment of Justice Jackson that there is “no reason why [the Court] should be consciously wrong today because [it] was unconsciously wrong yesterday."  Massachusetts v. United States, 333 U.S. 611, 639-40, (1948) (Jackson, J., dissenting).

It appears that "plain justification" is not necessarily required to overrule even a statutory interpretation, and that  Ferry is better viewed as an independent interpretation of the Constitution, rather than as an application of stare decisis to decide the constitutional question.