When Problems Get Big Enough, Albany Will Look For Solutions

Or that's the hope anyway. The Binghamton Press & Sun-Bulletin on New York's poor economic grades from the Business Council of the State of New York:

When a student receives a D, either extra homework is required or a mentor is hired. It appears that Albany is in desperate need of both.

There was a lot of talk of reform this year. Next session, let's hope the Legislature takes the message to heart, puts partisan politics aside and takes real action to release the problems that are choking this state's economy to death.

Congratulations to Mark Bitz

We see from today's Syracuse Post Standard that one of New York's most important businessmen/reformers, Mark Bitz (who has blogged on this site before) has sold his family's Syracuse-area turkey farm "to a firm affiliated with an international food company, The Hain Celestial Group." The amount of the sale was not disclosed.

According to the paper, the Bitz family will continue to operate a number of businesses in the Central New York area. We certainly hope that this means they will also continue to play their important and active role in pushing for reform in New York.

Victory for Re-Entry Advocates

Glen Martin, Co-Director of the Legal Action Center's National HIRE Network, writes to tell us of two important bill signed into law by Governor Spitzer yesterday:

S.3092/A.3379 -- Amends the Human Rights Law (Executive Law § 296(16)) so that individuals with confidential youthful offender (YO) adjudications and sealed convictions for non-criminal offenses are protected against discrimination. Individuals with criminal convictions are protected against unfair employment and licensure discrimination (Section 296(15) of the Executive Law) as are individuals whose cases have been terminated in their favor (Section 296(16) of the Executive Law.) However YO adjudications, which are not judgments of convictions, and convictions for non-criminal offenses, fall under neither of these categories, and thus individuals with these histories are entirely without protection against unfair employment and licensure discriminatory practices. Because of the failure to include them within the protection of the Human Rights Law, these two groups of individuals have no remedy if employers refuse to hire them. Despite the fact that the law says that YO adjudications are "confidential," there is nothing currently in law that prohibits employers from asking about them.

S.3092/A.3379 remedies these problems by bringing statutory protections for confidential YO adjudications and sealed non-criminal convictions in line with Executive Law § 296(16).

Not That I Think We Should Electrocute Fur-Bearing Animals, But...

Capital Confidential reported this afternoon that the Governor has signed into law a bill that prohibits the electrocution of fur-bearing animals in the state. The idea is to force the fur farming industry, which apparently favors electrocution because it does little damage to the animal pelts, to adopt more humane ways of killing the animals.

The problem is that, as CapCon notes, "it's unclear whether any fur farms here use this method." I'm all for showing solidarity with our furry woodland friends, but I draw the line at spending tax dollars to draft, print, distribute, and send for the Governor's approval a bill that attacks a problem that may or may not even exist here.

This is just one particularly absurd example of the wasteful bill introduction (and in this case, adoption) that is common practice in New York. Bill introduction is a way for legislators to show their constituents that they care about an important issue. But this type of credit claiming, if left unchecked, is an extremely inefficient use of resources and, as we see today, can result in useless regulation cluttering our statutes.

Isn't it time to limit the number of bills each legislator may introduce? And while we're at it, shouldn't we require that each bill be submitted with a memo detailing FACTS that justify its passage? In this case, one measly paragraph of rhetoric just doesn't cut it:

JUSTIFICATION: Setting aside temporarily the debate over whether killing an animal for some exogenous benefit, such as the value of their fur, is morally and/or legally permissible, it stands to reason that no animal should suffer needlessly. Anal and genital electrocution is a severely inhumane way to bring about the desired death; it causes a protracted and painful cessation of life for the animal. At the very least, we have an interest in requiring those who kill animals to do so in a way that is adjudged humane and comports with the best practices as recognized by the "fur farming" industry.

Another Reason the NY State Legislature is So Special

The Journal News again calls for equal allocation of resources for legislative staff, noting that

As it stands now, the majority party in both the state Senate and the state Assembly get far more money to spend - on office space, staff, postage stamps, mailers - than their minority-party counterparts, despite the fact that each Assembly district represents the same number of constituents, as does each Senate district.

As the paper states, this practice is unfair, not just to legislators, but to taxpayers and constituents. Just how unfair can be seen in these nifty graphs prepared by the Brennan Center.

The Journal News notes that a lawsuit to end this practice brought by Assemblyman Kirwan (R) and Senator Krueger (D) has died, and that a bill introduced by Assemblywoman Galef that would have created equity in staff budgets was bottled up in committee. The editorial ends on a sobering quote from Kirwan:

"Let's face it. Neither majority is going to give the minorities anything," Kirwan said. "If everyone got the same staff allowance, (majorities) would essentially be volunteering for dentistry to have their fangs removed."

But this begs this question -- if Congress, other state legislatures, and even the New York City Council can do it, why can't the New York State legislature?

Maybe It's An Ethics Kind of Week

We just keep getting hit with excuses to write about the need for ethics reform in New York. Yesterday, it was the California proposal to ban legislators from using campaign funds to employ relatives. Today, it's a great column from Bill Hammond in the Daily News on the "hot dog pol" who "lobbied while on the public payroll." Hammond notes that less than two years after leaving the Assembly, Robert Straniere (who apparently has just launched a new company, "New York City Hot Dogs") was "holding a $65,000-a-year job at the state Health Department even after he took a full-time partnership with the New York City law firm of Kantor Davidoff." Kantor Davidoff apparently lobbies both the state and city.

The whole column is worth a read. Hammond states "It should be a bright line in politics: Either you work for the public interest as a government official, or you work for a private interest as a lobbyist... Only in New York can a pol get away with working both sides of the revolving door at the same time."

We agree. We should note that even under New York's current and fairly weak ethics laws, it is illegal for a former member of the legislature, within 2 years of his service, to receive compensation for services related to the passage of bills or resolutions in either chamber. The timeline detailed by Bill Hammond suggests that Straniere went to work for the Kantor Davidoff less than 2 years after leaving the Assembly. Hammond notes that Straniere's law partner stated Straniere "never worked with the Legislature until he had been out for two years, as the law requires."

We hope that's the case. And we hope that the fact that all of this activity seems to have been perfectly legal will spur the legislature to pass more comprehensive ethics reform.

(Hat tip: Knickerbocker Blog)

Ethics, California Style

Will the Golden State provide a lesson in ethics to the Empire State?

Via the L.A. Times, we see there is a new proposal in California to disallow the use of candidate campaign funds to provide salaries to spouses and other relatives. Key graf from the article:

More than a dozen state lawmakers, including top legislative leaders, have paid $1.12 million in campaign cash -- raised from special interests -- to spouses, sons, daughters and companies that employed them during the last seven years, records show.

Thank goodness we don't have these kinds of problems in New York.

Eradicating Barriers to Voting for Young People

Yesterday, the New York Times published an article on lowering the voting age. Lawmakers in various state and local jurisdictions, including New York City, have proposed allowing 16-year-olds to vote in certain elections. Proponents of lowering the voting age assert that it would create voters for life and improve turnout rates among the youngest voters.

While the Brennan Center does not take a position on the issue of voting age, more attention should be paid to our youngest voters, aged 18 to 24. Young voters are often highly mobile, and as a result, experience legal or administrative barriers to the ballot box. Learn more about the Brennan Center's work to eradicate these barriers to student voting here.

--Margaret Chen, Research Associate, Democracy Program

In Response to This Morning's Anonymous Commenter and Our Other Not-So-Constant Readers

An anonymous visitor left a comment this morning on a post I wrote last week about the opportunity for redistricting reform that New York has in the few years before the next census.

Anonymous writes, in part:

A so-called bipartisan computer redistricting model will magically retain McHugh and Walsh upstate seats by generating weirdly vast gerrymandered districts with absolutely no connection to the electorate. The reason will be to ensure the disenfranchisement of downstate citizens, i.e., to dilute Hispanic votes and the potential for more Hispanic political clout in NY.

First off, thanks for participating in the conversation, Anonymous! In response, I would refer you to our further posts on the topic of redistricting. Nowhere will you find us advocating for a blind, computer-driven model of redistricting. We agree that ignoring demographic factors will lead to a map that in no way serves the needs of New Yorkers.

We are seeking reforms that will take power out of the hands of self-interested politicians and break the cycle of bipartisan gerrymanders that have plagued us for so long. District lines should be drawn to encourage competition, but as Anonymous points out, they should also be sensitive to the needs of the citizens that they encompass. Where at all possible, district lines should avoid splitting up communities of interest, whether they are official communities, such as towns and cities, or they are less defined racial and ethnic communities.

We are open to any ideas that would serve these purposes and would love to hear your further thoughts on the topic!

Accessible Polling Places Before September 2008

As we previously reported, the State Board of Elections appears to have agreed to ensure that there is at least one accessible voting system in every polling place by the September 2008 primaries. But there will be elections in New York before September 2008, including the presidential primary in February.

What can New York do to make these elections more accessible to disabled voters? Andrea Senteno and Doug Israel of Citizens Union have some ideas.

Nonpartisan, Bipartisan and Just Plain Partisan

For those that pay close attention to how New York administers its elections, there is plenty to complain about, including the fact that its requirement for strictly "bipartisan" boards of election often seems to make it impossible to get some very basic, important things done.

In this respect, nonpartisan election administration that is professionalized and accompanied by a clear code of ethics would seem preferable to the current bipartisan scheme in New York.

On the other hand, as this report on Stateline.org makes clear, New York's system is far preferable to those of many other states -- for all of the stalemates that it can create, bipartisan is almost always preferable to just plain partisan when it comes to running our elections.

Start Early, Get It Right

Capital Confidential reported on Friday that the state Budget Director has lit a fire under agencies, more than a month early, to begin work on the 2008-09 budget.

CapCon notes that the letter to agency heads emphasized a desire to close the projected gap without raising taxes, but we hope that the administration is also considering how to work with legislative leaders to have a much more transparent budget process next year. Governor Spitzer was lambasted by the press and reformers in March for presiding over a budget deal that, while nominally on-time, was overwhelmingly negotiated in secret.

By starting early, maybe this time Albany can achieve what is so often out of its grasp: good policy, in a timely manner, created with ample public input.

With Briefing Complete, Next Stop: Supreme Court

In response to the respondents' Supreme Court brief and the numerous, diverse and extensive friend-of-the-court briefs submitted supporting affirmance, the few defenders of New York's status quo judicial conventions filed their reply briefs last week in the litigation challenging the constitutionality of New York's judicial nominating conventions.

With briefing complete, all that remains is the Supreme Court hearing on October 3rd, which will feature the Brennan Center's Fritz Schwartz arguing that New York's judicial selection process effectively precludes rank-and-file party members from playing any meaningful role in determining their own party's standard bearer.

The reply briefs can be found here.

New York City Bar Embraces Legislative Rules Reform

The Brennan Center welcomes the City Bar to the cause of legislative rules reform!

We were very happy to read Christina Daigneault's op-ed in yesterday's Times-Union, in which she urges Governor Spitzer and the legislature to push for substantive legislative rules reform. Ms. Daigneault, who chairs the City Bar's State Affairs Committee, referenced a recent report by that committee entitled "Supporting Legislative Rules Reform: The Fundamentals" Many of these reforms have long been championed by the Brennan Center.

Ms. Daigneault notes that the City Bar report makes the following recommendations:

All proposed legislation should be accompanied by a committee report (more substantive than a bill memo) that contains information such as the purpose of the bill, change to previous law and the estimated cost.

All legislation must be properly presented before committee and considered with an opportunity for amendment.

Three or more members of a committee can petition for a public hearing, which is granted unless voted against by a majority of the committee.

If three or more members of a committee petition for a vote on a bill, it is taken no later than 10 days before the end of the legislative session.

Among other things, the City Bar also seeks mandatory and public conference committees, a more fair allocation of resources to legislators and staff, and reform of the the member item process.

We congratulate the City Bar on taking this important step and look forward to working with them to continue to push for this change.

Big Decisions from SBOE on Voting Machines

There appear to have been a few breakthroughs at last Thursday's State Board of Elections meeting. First, several attendees at the meeting tell us that the commissioners reached a bipartisan agreement that the State Board of Elections will prepare a revised plan for implementation of the Help America Vote Act that will require the county boards to provide a ballot marking device that is fully accessible to voters with disabilities at every poll site in time for the September 2008 primary. Ballot marking devices are computers that will fill out paper ballots for voters. Voters can review these paper ballots before casting them. Such devices are far more accessible for most disabled voters than current lever machines.

This is huge news. While we would like to see ballot marking devices in every polling place by this September, at least this guarantees that disabled voters will have more accessible machines in every polling place in time for the 2008 general election. We also hope that this will push counties to purchase optical scanners (which can read paper ballots filled out by hand or by the ballot marking devices) to replace their lever machines, rather than the full face touch screen machines the state is also considering for certification (which, the Brennan Center has shown, are expensive, cumbersome, poorly designed and confusing to voters).

In related news, the State Board of Elections rejected a proposal which would have limited the use of ballot marking devices to people with disabilities. This was certainly the right decision since, among other things, the proposal probably violated federal law.

Finally, the SBOE also intends to inform the Department of Justice that it would appear impossible to replace the state's lever voting machines in 2008.

Given the constraints the State Board of Election is dealing with, we view these decisions as good news for New York.

Possibility of Losing Congressional Clout May Carry Silver Lining

An AP story in this morning's USA Today highlights Missouri's impending loss of a congressional seat but also mentions that, given current trends, New York stands to lose two.

This is obviously bad news in terms of New York's clout in the House of Representatives, yet it also presents a ripe opportunity for redistricting reform.

In addition to considering how populations have shifted within the state, those charged with drawing the lines must figure out how to carve 27 districts out of a state that previously had 29. As in the past (New York has lost at least one seat in each of the last six census counts), this means that we will have to go through another round of political wrangling to decide whose districts will be eliminated and how that territory will be divided up. Inevitably, partisan and incumbent motives will take precedence over fairness and representation of real communities.

That is, unless we get serious about redistricting reform. Proposals like Governor Spitzer's independent commission plan would take the redistricting pen out of the hands self- and party-interested politicians.

New York deserves a redistricting process that suppresses politics and power in favor of the values of redistricting reform: counting the population and redrawing the district lines in a way that is equitable, fair, and sensitive to diversity. We should not let another census go by before we fundamentally improve the way districts are drawn in our state.

More on Voting Machines

We agree with nearly everything the Utica-Observer Dispatch says about the need for New York to get moving on certifying and purchasing new voting machines. Among the points the paper makes are:

1. the new open-ended deadline signed into law by Governor Spitzer could have the negative effect of tempting New York into taking years more to certifying new electronic voting machines;

2. state leaders need to put aside any appearance of favoritism toward certain vendors and set clear guidelines for selection of new machines and this whole process should be as public as possible;

3. New York has probably been lucky that it's taken so long to certify these machines (given all the problems other states have had with theirs) but this is best described as "dumb luck";

4. We must take all steps necessary to ensure that we are buying secure and reliable systems, but this should not be an excuse for foot dragging.

We'd add a few more points:

1. The longer the state waits to buy electronic voting machines, the longer some disabled voters will be denied the chance of voting independently and privately in a polling place -- this is no doubt tens of thousands of New Yorkers;

2. if they are rigorously tested, electronic voting machines promise to record voters intentions more accurately than lever machines; and

3. The "full face" touchscreen machines New York is considering are a full-out disaster, and the State Legislature should step up and ensure that counties are only buying optical scans and ballot marking devices in New York (or change the "full-face ballot" law -- we're not holding our breath).

Finally, we can't let this pass: someone seems to have engaged a bit of selective editing of their Wikipedia page.

Are Touch Screen Voting Systems in New York Doomed?

At some point, eventually, New York will move from its lever machines to some kind of electronic voting system. The choice is between two basic architectures: optical scan machines (which allow a voter to fill out a ballot with a pen or pencil, and then scan it into an electric scanner, just as she would fill out a lottery ticket) and the touch screen machines (by which a voter touches a computer screen -- similar to an ATM screen -- and her vote is recorded directly onto a computer).

For all of the contentious debate about which system is better for New York (many groups, including the Brennan Center, NYPIRG, New Yorkers for Verified Voting and the New York League of Women Voters have come out in favor of Optical Scan machines for New York), recent developments in New Jersey suggest that New York counties may not have to make a choice at all -- because the touchscreens won't get certified.

One of the complicating factors in New York is that under State Law, the new electronic machines must produce a paper trail. That's no problem for optical scan machines -- the voter fills out the paper ballot herself, and it is stored in a ballot box connected to the scanner. But for touch-screen machines, the vendors must create a printer that produces a paper trail that voters can review -- this is something voting system vendors have shown themselves remarkably inept at creating.

To our knowledge, no vendor has been successful at creating a printer for "full face" touch screen machines. The State Board of Elections has held that if counties buy touch screens in New York, they must be "full face" -- meaning that all candidates and races must appear on a single screen (making for a very large screen) -- AND have a printer.

When we say no vendor has been "successful" in creating a printer for such touch screen machines, we mean none has created a printer that jurisdictions have found reliable enough to use in an actual election.

And the vendors failed once again, last week. For more than a year, vendors have been trying to create voter verified printers for New Jersey's full face touch-screen machines. On Friday, Attorney General Anne Milgram said they were unsuccessful, and that they must correct their flaws and resubmit the printers for new testing.

There is little reason to believe that vendors will be any more successful in New York, which has been particularly tough in certifying machines.

We won't be crying over the missed opportunity to purchase full-face touch screen machines. As we've shown in past studies, such machines are not only ridiculously expensive, cumbersome, overly-complicated and large, they are also poorly designed and confusing to voters -- which has historically resulted in extremely high "undervote" rates. Voters are so confused that they accidentally skip races. We've estimated that their use in New York could result in the loss of hundreds of thousands of votes.

State Agencies Should Not Charge for Electronic FOIL Requests

The Times Union's Jordan Carleo-Evangelist writes that he received an invoice for his e-mail FOIL request to the Public Employment Relations Board for--get this--$1.

Carleo-Evangelist apparently requested a document via PERB's website and is being charged $1 for the pdf sent to him by a PERB staffer.

But according to the Executive Director of the state Committee on Open Government, FOILers using e-mail can only be charged if the document requested must be altered in some way--as Carleo-Evangelist puts it, "if PERB had to print out the document, redact information, copy the redacted version, then re-scan it in order to send the e-mail."

The document the TU writer received did not appear to be altered.

So what's up with this? Carleo-Evangelist writes that this was one of the fastest turn-around times he's experienced on a FOIL request, but this does not make up for the fact that the TU is being inappropriately charged. We'll keep our eyes peeled for more information on this topic.

Senator DeFrancisco to Speak on Judicial Selection at NCSL Annual Meeting

Senator John DeFrancisco of New York's 50th District will be in Boston tomorrow on a panel at the National Conference of State Legislature's Annual Meeting. DeFrancisco is slated to join researchers from the American Judicature Society and the Institute for the Advancement of the American Legal System, along with other legislators and judges, in a discussion of judicial selection methods around the country.

DeFrancisco, who chairs the Senate Judiciary Committee, has been a key player in conversations about how to bring the state's system of selecting Supreme Court judges in line with the decision invalidating New York's judicial nominating conventions.

The Senator sponsored a bill that is modeled on the system of conventions and primaries already in place for all statewide elected offices in New York. Designating conventions would occur in the spring. All Supreme Court candidates with more than 50 percent of the delegate vote would be designated as the party's potential nominees. Candidates receiving 25 percent of the delegate vote would earn an automatic spot on a September primary ballot. Most fundamentally, candidates with grass-roots support could force a primary by gathering petition signatures among the voters.

That system, familiar to all in New York state politics, gives parties and their leaders a role -- but if a candidate can muster support, it gives rank-and-file voters the final say.

Along with open primaries, DeFrancisco's model would rectify the problems inherent in the current system, so we look forward to hearing what he has to share with the NCSL audience!

How Inmate Populations Skew Political Power

We've previously blogged about the distorting effects of counting inmates as citizens of the town where their prison is located, rather than the neighborhoods they came from and will return to. Among other things, we noted, this practice unfairly inflates the political power of prison towns. In effect, since incarcerated people are disenfranchised, the votes of citizens in towns that house prisons are worth more than those of citizens who reside in other areas. It also drains political power from districts with high crime rates (who arguably need resources at least as much as other districts).

This issue is generally discussed in the context of its effects on state legislatures and Congress. But an interesting article in yesterday's New York Times points out that its distorting effects are most dramatically felt in apportioning votes in local government, "diluting the votes of residents in other parts" of the city or county.

The graph that accompanies the article gives an eye-popping representation of how frantastic this distorting effect can be on county boards and in city councils. In Livingson County, for instance, 60% of the residents of one district are in prison. The result is that County Board Supervisor elected from this district has twice as much voting power as he otherwise would. In New York City, 8% of the residents living in Peter F. Vallone Jr.'s district (which includes Rikers Island) are incarcerated.

Back to the Future

Yesterday's post about Speaker Silver's "secret vote" on whether to allow video and audio coverage of court proceedings in state courts got us to thinking about an decade-old proposal by Assemblywoman Sandy Galef.

As the Brennan Center has documented, more bills are introduced in the New York State Legislature than in almost any other state, but the Legislature actually votes on just a small fraction of them (in fact, a smaller fraction than in any other state).

At least, it only publicly votes on a small fraction of them. This has some benefits for legislators: they can get credit for introducing bills without getting the blame for passing or defeating them. But it doesn't serve the public particularly well.

Back in 1996, Assemblywoman Galef offered a remedy for this problem in the guise of a proposal to amend the State Constitution (A.9799). The Amendment would allow New Yorkers to do what residents of other states, such as Massachuesetts, can do -- petition the Legislature and force it to "finally act [on certain bills]... with a positive or negative vote."

Is it time to revive this proposal? Just asking . . . .

Secrecy Triumphs Again

In an editorial today, the Buffalo News points to yet another example of secrecy trumping transparency in Albany.

The paper asks, "is it irony?" We're not sure, though we're pretty comfortable stating that it's expected.

Random Post-Election Audits of Paper Records and Machines Essential to Ensuring Integrity of the Vote

Yesterday, the Brennan Center and Samuelson Law, Technology and Public Policy Clinic at UC Berkeley School of Law released a new report entitled Post-Election Audits: Restoring Trust in Elections. While there is widespread agreement that all electronic voting machines should produce voter-verifiable paper records, few states have implemented procedures for using these records to ensure the security and reliability of the machines. Paper records on their own will not prevent programming errors, software bugs, or the introduction of malicious software into voting machines. States must use the voter-verified paper records to "audit," or check, election results if the paper is to have any real security value.

New York is among the fifteen states with audit laws on the books and will conduct audits when it adopts new electronic voting systems. Congress and state legislatures are considering audits in future elections.

Together with a panel of statisticians, voting experts, computer scientists, and several of the nation's leading election officials, the Brennan Center and Samuelson Clinic reviewed and evaluated current and proposed audit methods. Among their major findings:

• Post-election audits of voter-verifiable paper records are a critical tool for detecting ballot-counting errors, discouraging fraud, and improvign the security and reliability of electronic voting machines in future elections. Unfortunately, of the thirty-eight states that require or use voter-verifiable paper records throughout the state, twenty-three do not require such audits after every election.


• Of the few states that currently require and conduct post-election audits, none has adopted audit models that will maximize the likelihood of finding clever and targeted software-based attacks, non-systemic programming errors, and software bugs that could change the outcome of an election.


• Only one state, North Carolina, has collected and made public the most significant data from post-election audits for the purpose of improving future elections. Based upon the Brennan Center's review of state laws and interviews with state election officials, the authors conclude that the vast majority of states conducting audits are not using them in a way that will maximize their ability to improve elections in the future.


• Regardless of the audit model a jurisdiction implements, there are several simple, practical, and inexpensive procedures that it can adopt to achieve the most important post-election auditing goals, without imposing unnecessary burdens on election officials.

We hope New York will move toward implementation of this type of procedure that will allow the state to conduct effective audits and ensure election integrity.

--Margaret Chen, Research Associate, Democracy Program

Why Special Elections are So Special

Today, the Times-Union reported that George Amedore (R) is the apparent winner in District 105’s special election to replace Paul Tonko, who left to head the New York State Energy Research and Development Authority. Amedore’s victory means the Republicans pick up a seat in the Assembly, bringing their total number of seats to 43, and moving as close to .300 ( share of total assembly seats) as this guy is to 300 or this guy is to 500. Perhaps some of this is in order!

In fairness, a seat flipping to another party (or even another person) is a cause for celebration in New York’s state legislative elections. Incumbents win reelection at rates upwards of 95%, and the professionalized legislature (with comparatively high allowances for staff and ample compensation) prompts many Senate and Assembly members to make a career out of public service.

New Yorkers rarely “throw the bums out” themselves (that is, by deposing incumbents) but, eventually, some legislators show themselves the door, usually in the middle of the night (by vacating a seat mid-term). As the Brennan Center has noted elsewhere, between 1995 and 2006, more legislators died in office than were defeated in general elections. The bulk of legislative turnover, then, is induced by legislators who choose to retire, run for higher office, or accept positions with more responsibility. The latter option, in most cases, happens mid-term, and requires a special election to fill the vacancy.

Citizens Union recently released a report showing the high percentages of legislators that gained by office by special election (33% in the Assembly, 28% in the Senate), while making the larger point that the nomination process for special elections is inherently undemocratic and gives the winner an inside track to the powerful advantages of incumbency in subsequent elections.

Nonetheless, special elections for open seats have several qualities that are positive for democracy, and uncommon in regular elections. While plagued by very low turnout, these races are usually much more competitive than those when an incumbent is present, and usually much more reflective of the underlying partisan demographics of a given district. Paul Tonko beat his Republican opponent by more than 50 points in 2006, even though Democrats had only about a six point registration advantage over Republicans, and probably should have been somewhat competitive. In Senate District 7, Michael Balboni won his race by 16 points in a Democratic leaning district last year, only to see Craig Johnson (D) win a special election for the seat after Balboni went to head up New York’s Homeland Security outfit.

Relatedly, fundraising, on average, is more balanced between candidates running in open seats, because incumbents use their connections to build huge campaign war chests in order to squelch their competition. Challengers in open seats, by contrast, often times begin fundraising on relatively equal footing, though the margin may vary depending on a candidate’s personal wealth or whether parties pour relatively even amounts of money into the race.

So while we’re not crazy about the insider dealing that determines who appears on the special election ballot, we’re happy to see any elections that give voters (the ones that show up, anyway) new choices, on a playing field where both candidates have an opportunity to be competitive. It's unfortunate that those circumstances are so special.