One of the most notable wins among the raft of progressive policies passed this summer in the New York State legislature was the Driver’s License Access and Privacy Act, better known as the Green Light bill, which made the state one of 13 to allow undocumented immigrants to obtain driver’s licenses. In addition to improving quality of life, proponents of the bill argue that it will provide an economic boost and help undocumented people avoid potential deportation for minor traffic offenses. It’s currently scheduled to go into effect on December 14.
“This legislation will not only provide undocumented immigrants with a legal solution to obtain a driver’s license, but its positive impacts will include significant economic growth, improved road safety, and keeping hardworking families together,” said Senator Luis Sepúlveda (D-Bronx), the bill’s sponsor.
(If you want to know more about the bill, Green Light NY—a coalition that built support for it—has fact sheets in English and Spanish available for free on its website.)
The issue proved to be one of the most divisive of the session (albeit not the most divisive). Republicans and law enforcement were against it, and Democrats were split largely along urban/suburban lines. It was an echo of 12 years ago, when Governor Eliot Spitzer bowed to pressure from the public, upstate legislators, and some county clerks and abandoned his “plan to issue driver’s licenses to illegal immigrants,” as the New York Times reported. (In another sign of progress, the Times left behind the term “illegal” in favor of “undocumented” in its 2019 reporting, in accordance with a 2013 change in the AP Stylebook.) According to an early June poll from Siena College, more than half of New Yorkers opposed giving licenses to undocumented immigrants.
One of the main points of contention was that, due to the forthcoming implementation of the federal REAL ID Act—which establishes minimum security standards for state-issued driver licenses, permits, and ID cards—issuing driver’s licenses for undocumented people would tacitly grant them legal status and put county clerks and the state DMV at odds with federal immigration law.
But New York offers three separate options for driver’s licenses. There are the Enhanced License (introduced in 2008) and REAL ID License (introduced in 2017), both of which can be used for federal and state purposes, and a Standard License (the long-existing option), which cannot be used for federal purposes. If you got a license after October 30, 2017, then you probably got a REAL ID-compliant license, which has a star in the upper-right corner. Non-REAL ID-compliant licenses issued after that date have a stamp that reads “NOT FOR FEDERAL PURPOSES” in that corner, meaning it could not be used to contravene federal law.
Approval and Blowback
In June, the bill barely passed in the Senate—33 to 29—and Gov. Cuomo signed it into law shortly thereafter.
According to Green Light NY, there are 752,000 undocumented New Yorkers over the age of 16 who will now gain access to a driver’s license, as well as another 70,000-plus who had access via Temporary Protected Status (TPS) or Deferred Action for Childhood Arrivals (DACA) designations and will have another option should those federal programs be revoked. According to the Fiscal Policy Institute, New York State and County governments will receive an estimated $57 million in combined annual revenue, and $26 million in one-time revenue through taxes and fees, while insurance premiums for all drivers will decline by an estimated $17 per year.
But that wasn’t the end of the story. True to their word, county clerks in conservative areas dissented. And they were in a unique position to resist: Unlike most states, DMV administrative duties fall to county clerks in New York, rather than state agents. Parallels were drawn to Kim Davis, the county clerk in Kentucky who refused to issue marriage licenses to same-sex couples.
Rensselaer County Clerk Frank Merola, Niagara County Clerk Joseph Jastrzemski, and Erie County Clerk Michael Kearns all filed lawsuits seeking to stop the law, while others, including Genesee County Clerk Michael Cianfrini, said they would not comply with the law.
On November 8, US District Judge Elizabeth A. Wolford dismissed Kearns’s suit, which argued that the law was unconstitutional and would force him to break federal immigration law. Wolford decided that Kearns did not have standing to sue because he didn’t show that he has been harmed by the law, a constitutional requirement.
Kearns, a conservative Democrat, was defiant, calling the lawsuit “round one” and saying that he would appeal the decision. According to Documented, the Justice Department has also said it intends to weigh in on the suit. In response to Kearns’s suit, a coalition of eight states and Washington, DC, as well as the New York Civil Liberties Union, filed briefs defending the law, while the Conservative Party of New York State and the Immigration Reform Law Institute offered support for Kearns.
Meanwhile, Rensselaer County Clerk Merola moved forward with his suit, filed in a different district, last week. According to the New York Law Journal, it includes several arguments Kearns did not make, including that the law provides a loophole allowing undocumented immigrants to be able to register to vote in New York, which Steven Choi, executive director of the New York Immigration Coalition, called a “complete and despicable lie.”
Like many states, New York registers voters through its DMV, with a valid driver’s license being the only document required to register. But the bill says licenses granted through the Green Light law won’t be eligible for purposes of voter registration. Choi told the New York Law Journal that state election officials will be able to determine how the license was obtained, and whether it can be used to register.
In a separate filing seeking an injunction, Merola also claimed that the law violates a federal statute because it includes provisions restricting state employees from sharing information related to immigration status with federal immigration authorities. (The NYCLU, in its amicus brief, argued that the Green Light law doesn’t collect information about immigration status and that the federal statute is unconstitutional anyway.)
For now, the Driver’s License Access and Privacy Act is scheduled to go into effect less than a month from today. But it’s clear there’s more to come from this story.
“I understand that the State may intend to assert that I lack standing to challenge the Green Light law,” Merola wrote. “But I am at a loss to understand who could challenge this statute, if not me. I have long served as County Clerk in Rensselaer County. I have personal experience with the issues involved in this case, and a personal stake in its outcome.
“Ultimately, I am faced with the choice of which law I would prefer to violate.”
Phillip Pantuso is the editor of The River, and has contributed to the Guardian, the New York Times, and Yes! Magazine. Follow him on Twitter @phillippantuso.