A judge has thrown out a lawsuit brought by the Vermont Republican Party, as well as the national party organization and two Winooski residents, over noncitizen voting in local elections in the city.
It’s the second time a lawsuit challenging noncitizen voting in the most racially diverse city in Vermont has been unsuccessful. The first challenge, in 2021, was brought by nearly all the same parties.
“This dismissal means that the City will continue to administer All Resident Voting as directed by our voters and approved by the state legislature,” Elaine I-Lan Wang, Winooski’s city manager, said in an email this week.
Judge Helen Toor, in a 14-page ruling in Chittenden County Superior civil court earlier this month, granted the city’s request to dismiss the latest case, which more narrowly challenged noncitizen voting in school board and school budget elections in Winooski — rather than all local elections in the city.
The suit was based on the idea that school taxes in particular brought a different set of considerations to bear because Vermont’s education system is funded through a broader statewide fund.
As a result, the lawsuit argued, school matters are of “statewide concern” and only U.S. citizens can vote on “any matter that concerns the State of Vermont” under the state’s constitution.
The judge found that the latest lawsuit was similar to the previous unsuccessful one and that any new challenge raised in it should have been brought up in the earlier case.
When claims in two different legal actions are “identical or substantially identical,” the judge wrote, a legal doctrine bars “not only claims that were raised, but also those that could have been raised, in the earlier litigation.”
That earlier litigation started with suits the GOP brought against both Winooski and Montpelier contending that noncitizen voting measures for local elections were unconstitutional since many local elections are “procedurally indistinguishable from state elections” in which noncitizens cannot vote. Noncitizens also cannot vote in federal elections.
The Montpelier case was first to reach the Vermont Supreme Court. In a January decision, the state’s highest court upheld a ruling by a Washington County judge to dismiss the case against Montpelier on grounds that the city’s charter provision did not violate the state constitution. The Montpelier charter change applied only to city government elections and was not part of the latest lawsuit.
The plaintiffs in the first lawsuit against Winooski agreed to dismiss their appeal in that case after the Vermont Supreme Court issued its decision in the Montpelier one.
Brady Toensing, a former vice chair of the state GOP who also served in former President Donald Trump’s Department of Justice, is an attorney representing the parties who brought the latest lawsuit against Winooski.
Asked Tuesday whether he would appeal Toor’s decision to dismiss the case, Toensing said, “We’re considering our options.”
Parties have 30 days from the Nov. 6 date of the decision to decide whether to seek an appeal.
Earlier this year, lawmakers overrode a veto by Gov. Phil Scott of a Burlington charter change allowing noncitizen residents to vote in city elections. A charter change requires state approval.
Jason Maulucci, a spokesperson for the governor, said in an email Tuesday about the latest court ruling, “Unlike the plaintiffs in the case, the Governor’s opposition to the initiative is not about its constitutionality, but rather the lack of consistency from town to town.”
Maulucci added of Scott, “As he has said he believes the fundamentals of voting should be uniform statewide, and has asked the Legislature to create a uniform template for towns pursuing this objective.”
Correction: An earlier version of this story misstated the name of Winooski’s city manager, Elaine I-Lan Wang.
