NYS Board of Elections circa 2017

NYS Board of Elections

Leadership at the State Board of Elections (where diversity reigns) seen in 2017: From left to right, Co-Executive Director Robert A. Brehm, Commissioner Andrew J. Spano, Commissioner and Co-Chair Douglas A. Kellner, Commissioner and Co-Chair Peter S. Kosinski, former Commissioner Gregory P. Peterson (his seat is now vacant), and Co-Executive Director Todd D. Valentine.

The first votes of the 2020 presidential race have been cast, and the Iowa caucuses have reminded us of all the ways an election can go off the rails, even without the hand of a foreign saboteur. State-defined laws and local election administration are still at the heart of voting equity in the U.S. And while it’s often the Southern states — and now Iowa — that get most of the attention for their problematic, sometimes illegal, election practices, there have also been persistent roadblocks to voting in a certain solidly blue Northern state and its flagship megalopolis. Yes, New York State and City, I’m looking at you — and I wish more national media outlets would do the same. Only then might your penchant for mass suppression and gross mismanagement be kept in check.

In January, a federal judge concluded that the Board of Elections’ practice of rendering voters “inactive” based on post office errors, and then keeping the names of these deactivated voters away from polling sites, is not just unlawful but unconstitutional. Though potentially a landmark case, it has mostly met with crickets in the press. Apart from a few law journals, the only mainstream reporter covering the story so far has been WNYC/Gothamist’s Brigid Bergin, who has kept a spotlight on the New York Board of Elections through its recent stream of purges, goofs and cover-ups. No national news outlets have picked up the story, and none of New York’s major papers have given the judge’s decision any play. This lack of broad media attention is one reason the New York Board of Elections, a body in charge of ensuring fair voting in a state of nearly 20 million people, consistently gets away with murder.

When New York City’s Board of Elections was found guilty of illegally purging roughly 200,000 voter names in the runup to the 2016 presidential primaries, the result was a consent decree that had little bite. No criminal charges were pursued against the board’s directors by the state attorney general or the Department of Justice, both of whom were plaintiffs in the civil case.

In the most recent lawsuit against New York State’s Board of Elections, Federal District Judge Alison J. Nathan ruled that the board had broken federal law in two crucial areas. First, it violated the 1993 National Voter Registration Act by moving tens of thousands of registered voters to an “inactive” voter list. It did so using a flawed process based on returned mail from the post office, as well as relying on a third-party address database rife with errors. During the four-day bench trial in October, plaintiffs showed that any time a piece of election mail was returned to the board marked “undeliverable,” the body immediately moved that voter’s name to the inactive list. Many of the voters placed on the inactive list still lived at the address in question.

Second, the court found that the election board breached the Fourteenth Amendment by failing to make these “inactive” voters’ names available at polling sites. Poll workers therefore had no way to look up the names of voters who, to their surprise, found themselves missing from the active rolls on Election Day.

As a result of the board’s policies, thousands of New Yorkers were either sent home without casting a ballot, or were told to submit a ballot by affidavit. In the 2016 primaries, over 45,000 registered voters were made to cast affidavit ballots because of this process, and in New York, votes submitted through affidavit are frequently disqualified over minor errors on the form. (This happened to my affidavit ballot in 2018.)

In her 60-page conclusion, Judge Nathan ordered the Board of Elections to make the names of inactive voters available at all New York polling stations going forward, so that poll workers can cross-reference them and potentially reactivate voters on the spot. Common Cause New York, the good governance group that brought the suit, hailed the judge’s decision as a victory. “This landmark decision tears down a wall that threatened to block millions of New York voters from the polls,” said Kristen Clarke, executive director of the Lawyers’ Committee for Civil Rights Under Law, one of the teams representing Common Cause in court. “[It] should also serve as precedent against efforts to suppress voting rights across the country.”

This court order, if properly enforced, matters. The current inactive voter list has over a million people on it. That’s roughly one in every 12 registered voters in the state. Voting in New York’s presidential primary begins April 18, followed by state and congressional primaries in June. That’s soon. Plus, in New York City, 2021 will see about 500 candidates running for 41 local offices.

But the question remains: Will the Board of Elections actually comply with the court’s ruling and beef up the oversight it so desperately needs? This is an agency known for its opaque processes, partisan appointments, and suspicious, at times baffling, gaffes. Though the 2017 consent decree with the Justice Department required that the city agency institute immediate changes, reporting has found that many of these requirements have been ignored.

And though Judge Nathan’s ruling will improve access for New Yorkers who find themselves on the inactive list, it doesn’t go far enough. The judge did not order the state board to change its method of putting voters on this list, a process reliant solely on post office snafus, even though she declared the method a violation of federal law. That means we should expect more names to go missing on Election Day, perhaps until the next costly lawsuit is filed by an intrepid nonprofit watchdog.

Without more national media coverage of New York’s elections — the kind often reserved for states like Georgia, Florida and North Carolina — more New Yorkers will find themselves robbed of their right to vote on Election Day. Plus, civic engagement across the state will continue to go down. (New York is already in the bottom 10 for voter turnout nationwide.) And, as a New Yorker who advocates for election reform, I can attest through my own very unscientific survey that my fellow New Yorkers don’t usually pay attention to local bureaucratic injustices until they make the national news. Until stories appear on more networks, the voters of New York will continue to be under the thumb of an unaccountable state board that routinely and quietly purges their names without due process.

Eli James writes the “Voting in the Dark” blog.