Divided Court upholds charter amendment allowing noncitizens to vote in the City of Burlington’s school board and school budget elections

 

Vermont Constitution. Noncitizen Voting 

Morin  v. City of Burlington , 2026 VT 17 [5/15/2026]

WAPLES, J.   In this appeal, we consider whether a Burlington charter amendment allowing noncitizens to vote in the City of Burlington’s school board and school budget elections violates the voter-eligibility requirements set forth in Chapter II, § 42 of the Vermont Constitution.  Plaintiffs sought declaratory and injunctive relief to this effect below and challenge the trial court’s dismissal of their complaint for failure to state a claim upon which relief can be granted.  We extend our discussion in Ferry v. City of Montpelier, 2023 VT 4, 217 Vt. 450, 296 A.3d 749, to clarify the distinction between local and statewide elections.  We conclude that plaintiffs’ complaint failed to demonstrate that school elections are statewide elections that implicate § 42.  See Ferry, 2023 VT 4, ¶ 1 (explaining § 42 “does not apply to local elections”).  We affirm the trial court’s dismissal.  

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.    In Ferry, we held that § 42 applies to statewide elections but does not apply to municipal elections.  2023 VT 4, ¶¶ 9, 36.

We distinguish local and statewide elections as follows: when the question voted on has been (1) delegated to the locality, and (2) such delegation is lawful, the election is properly a local election.  On the other hand, when the question either  (1) has not been delegated or (2) cannot lawfully be delegated to local governments, the election is properly a statewide election.   Plaintiffs argue that although Burlington’s school board and school budget elections may appear to be local elections, under Vermont’s current school-funding mechanisms, they are properly categorized as statewide elections subject to § 42

We reject plaintiffs’ arguments.  While we are “particularly wary of dismissing novel claims,” like the one before us, on a motion to dismiss for failure to state a claim because “[t]he legal theory of a case should be explored in the light of facts as developed by the evidence,” factual development of the complaint’s legal claims would not change our conclusion here.  Montague, 2019 VT 16, ¶ 11 (quotation omitted).  Given plaintiffs’ complaint did not present a sufficient basis to allow this Court to evaluate whether statewide school-funding mechanisms make the local-voting provisions of Title 16 an unconstitutional delegation of authority, it does not satisfy the rigorous standard necessary  for us to nullify an act of the Legislature.

ZONAY, Supr. J., Specially Assigned, concurring and dissenting.   The majority concludes that plaintiffs failed to demonstrate that school-board and school-budget 19 elections are statewide elections subject to the voter-eligibility requirements of Chapter II, § 42 of the Vermont Constitution.  I concur in part because I agree that a vote to elect members of the Burlington School District’s Board of School Commissioners is, as a matter of law, a local election.  Plaintiffs’ argument that the Burlington City Charter amendment violates § 42 as applied to votes to ratify the District’s education budget, however, demands an answer to the question left open in Ferry v. City of Montpelier—how do we distinguish between local and statewide issues where a vote is “municipal in name” but allegedly statewide in character?  2023 VT 4, ¶ 50, 217 Vt. 450, 296 A.3d 749.  In my view, the text of our state Constitution supplies a complete answer to that question: § 42 provides that its voter-qualification requirements apply to votes “touching any matter that concerns the State of Vermont.”  Vt. Const. ch. II, § 42.  It is undisputed that under Vermont’s current education-funding structure, a vote on the District’s annual education budget has statewide effects.  That being the case, I would reverse the trial court’s dismissal of plaintiffs’ claim that the Burlington City Charter amendment violates § 42 as applied to the District’s education-budget vote.