A bill under consideration in Albany would allow undocumented New Yorkers to obtain driver’s licenses. It’s likely a long shot for passage by the Legislature, but that didn’t stop Erie County Clerk Michael P. Kearns from announcing last week that should it become state law, “we will not process any of these licenses in Erie County.”
Kearns, who is up for re-election in November, is playing to the crowd. The former assemblyman and one-time Common Council member is a registered Democrat who – in the grand tradition of fusion politics in New York State – crossed over to run as a Republican for county clerk. Kearns was also endorsed by the state Conservative Party, which stands firmly against “illegal immigration.”
Getting to pick and choose which laws to enforce is not a luxury we afford to our elected officials. Apart from whatever merits or deficiencies such a policy might have, Kearns would be well-advised not to flout state law while doing his job.
Erie County Sheriff Timothy B. Howard made some waves when he announced in May 2013 that he not only opposed the SAFE Act, the state’s gun control law that Howard said violated the Second Amendment, but added that he “would not enforce it.”
Howard was re-elected handily in November that year, with many attributing his defiance toward gun control as motivating many firearms owners to come to the polls. In an endorsement of his opponent, Richard E. Dobson, we warned in this space “anyone who values democratic processes knows that Howard was treading where sheriffs are not allowed to go.”
Neither are county clerks.
Erie County Executive Mark C. Poloncarz, a Democrat, on Saturday said on WBEN Radio that Kearns has to “be careful,” or could be found in violation of state Public Officers Law, if he refuses to do part of his job.
Public officeholders take a calculated risk when they make a statement about defying a law or official duty. And the key word is “calculated.” Howard caught a lot of flak for the phrase “I won’t enforce it” in 2013, but things worked out pretty well for him on Election Day. Much of the citizenry in Western New York, from Kearns’ home base in South Buffalo and elsewhere, will applaud his tough talk on immigration, which might gain him more in votes than it loses him.
Kearns’ declaration calls to mind some other recent acts of government defiance. Kim Davis was the county clerk in Rowan County, Kentucky, who in August 2015 refused to follow a federal court order to issue marriage licenses to same-sex couples, objecting on religious grounds. Davis was jailed for five days for contempt of court until a compromise arrangement was reached.
Sally Yates was the acting U.S. attorney general in January 2017 when President Trump issued a ban on travel from several predominantly Muslim countries. Yates directed the Justice Department to not enforce the ban. She was hailed by members of the anti-Trump resistance, and was soon after removed from her post by the president.
Civil disobedience is not free of cost or consequences.
When Kathy Hochul – now our lieutenant governor – was Erie County clerk, she publicly opposed then-Gov. Eliot Spitzer’s 2007 executive order permitting undocumented people to gain driver’s licenses. She said that she would follow the directive if it became law, but she would tell auto bureau employees that if undocumented citizens applied for driver’s licenses, their names could be turned over to law enforcement authorities as possible violators of immigration law. Hochul, who was up for re-election that year, maintained she would not defy the law on driver’s licenses, which later died due to opposition in the Legislature.
“I took an oath of office to uphold the laws of New York State,” Hochul said. “I can’t unilaterally pick what laws to support.”
Speaking up for one’s principles is what we want our elected officials to do. Hochul’s approach met that standard, but when an officeholder vows to defy laws he is elected to uphold, that’s putting political priorities above the duties of office.