Tuesday, July 31, 2007

2007 May See New York's Last Supreme Court Nominating Convention

In a post about petitions filed for this year's primaries, Liz Benjamin at the Daily News reminds us that "[t]his could be the last time state Supreme Court nominees will be selected via the party-leader controlled convention route, which has been deemed unconstitutional by state courts and is headed for the US Supreme Court."

While we offer no predictions, we certainly hope that the Supreme Court affirms the unanimous panel decision of the U.S. Court of Appeals for the Second Circuit. Along with the Brennan Center, a broad and diverse group of amici from around the state and around the nation have argued to the Supreme Court that in addition to the system's constitutional flaws, New York's byzantine process is the "worst of all worlds" when it comes to judicial selection. (quoting the brief of City of New York; New York State Bar Association; Bar Association of the City of New York).

Glimpses of the Next Redistricting Fight

The Daily News reports that some of the white constituents in the district of Assemblyman Carl Heastie, who co-chairs the committee responsible for redistricting, may mount a challenge to their district lines: "There's already some rumbling that whites in the East Bronx might file legal action under the federal Voting Rights Act - as a minority group by then - to oppose a Latino congressional district being carved out there."

If it's already time to start thinking about the power struggle that follows each census, shouldn't we also get serious about redistricting reform? 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.

Friday, July 27, 2007

Again, Voter Fraud Rears Its Ugly (and Largely Bogus) Head

The South Florida Sun-Sentinel reported this morning that the Palm Beach County Republican Party has filed voter fraud complaints with several Florida agencies, including the Division of Elections and the State Attorney General. The GOP group alleges that 60 people appear to have double-voted, casting ballots in both Florida and New York during last year's election.

This is something we've seen before--allegations of voter fraud leading to amateur investigations using only rudimentary list-matching techniques to "prove" double-registration and double-voting. Yet time after time, the most thorough investigations across entire states have come up with only a handful of instances of true voter misconduct.

In this case, the Sun-Sentinel admits that since the Palm Beach County GOP's list was released, several people have called in to the paper, denying that they had in fact voted twice in 2006. Shirley Goldberg, a retiree in Delray Beach, said, "I registered and voted in New York when I lived there. But I've been here for the last 12 years. I haven't voted in New York since."

It is important that we safeguard our elections against individual voter fraud, but it is also crucial that we don't jump at shadows and see voter fraud behind every rock. The citizen investigators in Florida checked the full names and birth dates of citizens who registered and voted in Palm Beach County against a list of New York State voters. Yet our research has shown that matching information from list to list can be full of pitfalls. Many instances of apparent fraud have been caused by administrative errors.

Large databases, like voter registration rolls, are vulnerable to human error. For example, the Social Security Administration's "Master Death Index" is known to have an error rate of more than 3%! Inaccuracies in the names or birthdates of voters on the rolls in New York and Palm Beach County could have produced a false match.

The databases could also be missing important information that is not evident at first glance. Some databases substitute generic information when a digit is missing - such as January 1, 1980 for someone who only provided January, 1980 as their birthday on a standardized form. This would increase the likelihood that the analysis found a false match.

Finally, it is statistically likely that a few of the people matched correctly by name and birthday could be separate people. In a group of just 23 people, it is more likely than not that two will share the same month and day of birth. With such significant populations of registered voters (800,000 in Palm Beach County and 11 million in New York), there could be two people registered with the same name and birthday.

Over the years, most of the vivid anecdotes of purported voter fraud have been proven false or do not actually demonstrate fraud. Individual voter fraud is both irrational, because of its stiff penalties, and extremely rare. It is crucial that we conduct impartial, nonpartisan investigations to debunk wholesale claims of fraud.

For more information on allegations of voter fraud, visit the Brennan Center Investigator's Guide to Voter Fraud and our Truth About Fraud website.

Wednesday, July 25, 2007

More on Vote-By-Mail in Ulster County

Ulster County legislator Gary Bischoff commented with an update on our February 8th post on a movement in Ulster County to implement vote-by-mail.

He writes:
At the July Ulster County Legislature session, the legislature voted to petition the NY Board of Election to let Ulster County do a test of Vote-by-mail in the Sept. 18, 2007 primary. The actual resolution:

Thanks for the update, Gary. We welcome all updates on reform-related news that escapes our attention!

Tuesday, July 24, 2007

Counting Incarcerated New Yorkers

Yesterday, the New York Times editorial page cheered the fact that thirteen New York counties that exclude from redistricting counts prisoners housed within their boundaries. This information comes from the newest report by the Prison Policy Initiative, a group that has long advocated allocating prisoners to their last known address for purposes of representation and distribution of federal, state, and local resources.

We wholeheartedly agree with the Times and PPI. By counting prisoners as residents of their current locales instead of their home communities, New York unfairly inflates the 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.

New York State should pass legislation to either exclude prisoners altogether from redistricting data or, better yet, collect information on prisoner's last known address and count them in their home communities.

Read more about the need to change the way incarcerated people are counted in the census here.

Tuesday, July 17, 2007

Reform A.M. for July 17

E.J. Dionne of the Washington Post calls the unprecedented number of small donors to campaigns since 2004 an "uprising."

The Journal News sees workers comp reform as a product of compromise that will save employers billions.

Governor Spitzer has less cash-on-hand than Speaker Silver and Majority Leader Bruno.

Monday, July 16, 2007

Brennan Center and Friends of the Court File Briefs before U.S. Supreme Court Seeking Affirmance of Decisions Enjoining New York’s Judicial Selection

On Friday, along with pro bono partners Arnold & Porter LLP and Jenner & Block LLP, the Brennan Center filed its brief urging the U.S. Supreme Court to uphold the unanimous decision of the Second Circuit enjoining New York’s uniquely burdensome multi-state system for selecting state Supreme Court nominees. The system purports to grant voters a role in electing trial court judges, but in reality, local party bosses control the process at the expense of their party’s rank-and-file members, who are precluded from playing any meaningful role in determining their own party’s standard bearer.

In its brief, the Brennan Center urged the Court to tear down one of the last vestiges of Tammany Hall’s boss control of New York State government arguing that “New York’s state-imposed nominating process creates a locked gate, to which those in control of the party hold the only key.” In urging affirmance of the Second Circuit decision, the Brennan Center’s brief assails a system that “vests de facto judicial appointive power in unaccountable party bosses, thereby creating a fertile source for corruption, decreasing confidence in its courts, impeding the search for excellence, and failing to achieve a genuinely representative judiciary.” See the Brennan Center's website for more information on Lopez Torres v. NYS Board of Elections.

The Brennan Center was supported by a broad and ideologically diverse cross-section of legal, political, academic, and reform organizations and individuals from across the country who filed amicus briefs offering unique perspectives on the operation of New York’s scheme, and supporting affirmance of the Second Circuit’s decision. Eleven briefs were filed on behalf of the following signatories:

Brooklyn District Attorney Charles J. Hynes: “I am persuaded, from my long experience as a prosecutor, voter, citizen, and lawyer that…the problems of corruption in Brooklyn involving Supreme Court judgeships are not attributable to a single corrupt party boss. Rather, as the public record demonstrates, corruption in judicial politics has a long history paralleling the long history of the judicial district convention system,” Hynes wrote. In addition to noting the statewide nature of the problem, Hynes strikingly explains to the Court that the “corruption brought about by the architecture of the Supreme Court nomination system does not end once the judge is tapped by party leaders to serve on the Supreme Court, or when the judge is elected. It often continues, in the form of corruption in the administration of justice.”

John Dunne, former Assistant United States Attorney General for Civil Rights (1990-1993) under President George H.W. Bush and former NY State Senator: “Mr. Dunne’s own experience is illustrative. Despite his record of dedication to the Republican Party and his demonstrated expertise in the area of judicial elections, he has never been put forward as a delegate candidate, even though he had asked repeatedly for the opportunity. Instead, he has been passed over by local bosses in favor of slates of delegates who can be relied upon to rubber stamp the choices of the “leadership.” These slating decisions are unreviewable. If a State Senator with 24 years’ service to his party can be shut out of the nomination process entirely, there is little hope for rank-and-file party members who do not hold elected office.”

Washington Legal Foundation: “If New York were to adopt a law declaring that Supreme Court Justices are to be popularly elected, but only the leaders of the most powerful political party within each judicial district are allowed to vote in that election, the law would surely amount to an unconstitutional abridgement of voting rights.....Based on the detailed (and uncontested) factual findings of the district court, the New York election system has exactly the same effect on voting rights.”

City of New York, the New York State Bar Association, Association of the Bar of the City of New York, and the Fund for Modern Courts: “As a policy matter, the current system results in the worst of all worlds: New York State effectively has an appointive system in the guise of an electoral system, but an appointive system of the worst kind – a system in which judges are appointed by party leaders who are unaccountable to the public and who base their choices on political loyalty and party credentials, rather than on professional judicial qualifications.”

New York County Lawyers Association: “While NYCLA prefers a merit-based appointment system for selecting New York Supreme Court Justices, it is imperative that the current, unconstitutional convention system for selecting Supreme Court Justices not be permitted to continue. The convention system is neither democratic, nor transparent. NYCLA therefore urges this Court to affirm the judgment of the United States Court of Appeals for the Second Circuit so that public confidence in the judiciary, which is a cornerstone of a free society, can be restored.”

Asian American Legal Defense and Education Fund, the Puerto Rican Legal Defense and Education Fund, the Hispanic National Bar Association, the Puerto Rican Bar Association, the Latino Lawyers Association of Queens County, the Center for Law and Social Justice at Medgar Evers College, the Amistad Black Bar Association of Long Island, and the Rochester Black Bar Association: “Minorities seeking to become supreme court justices in New York are not served by a closed, back-door system built on cronyism and political favors. No diverse, fair system can be built by such means. As a blue-ribbon task force on diversity in the judiciary found fifteen years ago, opening the system is “essential to improving diversity on the bench.”

Hon. Ed Koch: “New York’s convention system for electing Supreme Court Justices has gone largely unchanged for the forty-plus years that I have been familiar with it. The undemocratic boss run system that I observed in the 1960’s appears to operate no differently today than it did back then,” Koch wrote the court. He added, “Justices of the Supreme Court in New York are not elected, even though their names are on the ballot. They are selected.”

American Civil Liberties Union and New York Civil Liberties Union: "[H]aving chosen to elect Justices of its State Supreme Court, New York is obligated by the federal Constitution to provide for a fair and accessible electoral process. This it has not done."

Thomas Mann, Norman Ornstein, the Reform Institute and the Campaign Legal Center: “Although New York’s judicial selection scheme genuflects at the altar of democracy, it prays to a very different god: patronage.”

“By effectively lodging the power to control the nomination of state Supreme Court Justices in local political party leaders, New York’s mandated system makes state Supreme Court Justices—and many below them on the judicial ladder—beholden to local party officials. The judges, their law clerks, and other judicial employees become mere patronage spoils.”

Former New York Judges and the American Judicature Society: “The current convention system undermines rather than enhances public confidence in the judiciary.”

“The current convention system thus fails—at the crucial juncture when the nomination is being bestowed—to provide constitutionally required assurances to the public of the nominees’ integrity, competence, impartiality, and quality, and of the integrity of the selection process itself.”

Prominent Constitutional and Election Law Professors: “Insofar as elections promote vibrant political parties, New York State’s regime usurps the autonomy of political parties to structure decisionmaking for themselves. In all, a worse system for electing judges is difficult to fathom.”

Reform A.M. for July 16

The New York Times thinks the rules governing official travel are "fuzzy at best" and should be clarified and strengthened.

The Times also profiles Congressman Jim Walsh.

The Elmira Star-Gazette thinks the Governor and legislative leaders should meet to avoid wasting the special session.

The Times Herald-Record argues that our leaders should stop linking bills and pass them on their own merit.

Briefs were submitted in litigation over judicial pay.

Sunday, July 15, 2007

15,670 is an awful lot of bills

The number of bills introduced in the Legislature this year, according to the Journal News, was 15,670. We can't say we're surprised, though this is a truly astounding number. Assemblywoman Galef, who has introduced legislation that would limit the number of bills any legislator could introduce to 100 makes the case for why this is a problem:

- There are too many bills for lawmakers, legislative committees and staff to effectively analyze and debate each session.

- Members introduce bills similar or identical to legislation already pending, rather than seeking to collaborate with colleagues.

- Some are "dead-end" bills introduced only to score political points with constituencies.

We'd argue for even fewer than 100, but we applaud Assemblymember Galef for making the case for this important issue.

Bruno and Silver are quoted in the Journal News as opposing Galef's measure, noting that most states don't have these kinds of restrictions. But at least 20 chambers do -- including chambers in California and Florida. More to the point, there isn't a single state where so many bills are introduced every year, and almost none where such a small percentage introduced are actually passed.

Thursday, July 12, 2007

Lopez Torres v. New York State Board of Elections, Supreme Court Edition

Stay tuned tomorrow for the Brennan Center's brief to the U.S. Supreme Court in Lopez Torres v. NYS Board of Elections. Also be on the lookout for some really hard-hitting and insightful amicus briefs in support of affirmance.

Curb Leaders' Power to Kill Legislation

Streetsblog reminded us this morning of a fundamental problem with the rules of the state Legislature. They quote Chad Marlow of the Public Advocacy Group:
In almost every other legislature in the country, when a bill is proposed, only the original sponsor of the legislation has the ability to pull that bill and prevent it from coming to a vote. In Albany, the original sponsor can pull his or her bill but so can the Assembly Speaker and the Senate Majority leader. So, regardless of how many of a legislator's colleagues support the bill, if the leader doesn't support the legislator, it will never come to a vote. This gives the Silver and Bruno "veto plus" powers. When the governor vetos a bill there's an opportunity for the legislature to override the veto. But when the Leader pulls your bill, that's it. It's done. That's why Albany legislators are, essentially, forced to fall in line with Silver and Bruno. If they don't, they may never get to pass another piece of legislation.
Isn't it time for real legislative rules reform? New Yorkers deserve a Legislature where their representatives, regardless of their popularity with party leaders, are able to sponsor legislation, have it seriously considered in committee, and if enough committee members approve, have the legislation automatically given a vote on the floor of the chamber.

How Much Does Your Favorite Presidential Candidate Want You to Register to Vote?

Reuters reports this morning on a study by the Project for Excellence in Journalism examining how '08 presidential candidates are using their websites (or not) to encourage visitors to register to vote.

They found that there are front page links to register to vote on the websites of Hillary Clinton and Barack Obama, while Rudy Guiliani and Bill Richardson don't seem to have any at all. They note that John McCain has the most detailed information about registration, including the rules of each state, but this data is only available once you click through to his "Action Center."

Political participation, especially voting, is crucial to a representative democratic process, so we applaud all candidates and public officials who work to get more Americans involved in their government.

Click here for more information on the Brennan Center's work to prevent restrictions on voter registration.

Monday, July 09, 2007

The Legislature (or At Least One Committee of the Assembly) Functions

We won’t take a position on New York City Mayor Bloomberg’s congestion pricing proposal, but we do want to applaud some members of the Assembly for their attempt to put the plan through the legislative process.

After holding two public hearings on the subject, Chairman Richard Brodsky and the Assembly Committee on Corporations, Authorities, and Commissions released a report this morning (read it via the New York Times) asserting that the plan would place a disproportionate burden on low income residents of the outer boroughs. As the report indicates, “The Committee has considered written and oral submissions, hearing testimony, independent and academic research, and a wide variety of citizen and organizational opinion.”

This is the type of legislative activity that should be a model for other committees, in both houses of the Legislature. Committees should devote hearings to individual bills, and experts, public officials, and members of the public should be allowed to testify both in support and opposition to them. The testimony, reports, and transcripts of any committee meetings should be posted on the web. Bills should then receive up-or-down votes in committee and should be guaranteed a floor vote.

We hope the Assembly committee's activity is just a hint of what's to come.

(For opposition to the Assembly’s report, see this memo of the Drum Major Institute for Public Policy.)

Reform A.M. for July 9

The Elmira Star-Gazette agrees with reform groups that if travel includes fundraising activity, officials should pay their own way.

The Buffalo News features an opinion column calling for a vote on judicial pay raises--without any other issues attached.

Officials in Jamestown say they are prepared to break the law by using lever voting machines this year if the Legislature doesn't act.

The Times Herald-Record sits down with top Spitzer aide Rich Baum.

Rochester Business Journal readers give the Legislature the thumbs down.

Thursday, July 05, 2007

Theories of Representation

In today's Washington Post, columnist David Broder laments what he sees as "mob rule" in the federal government:
The belief that official Washington is deaf to the people's wishes is a staple of political rhetoric for both Republicans and Democrats.Let a reporter who is not running for anything suggest that exactly the opposite may be true: A particularly virulent strain of populism has made official Washington altogether too responsive to public opinion.
He sees the defeat of the bipartisan immigration bill as evidence of this swing toward strict adherence to public opinion.

This is an interesting contrast to the way things are perceived to work in New York. It seems that the voices of the people are rarely heard at all, let alone heard so loudly that they force or sink passage of legislation. New Yorkers have been pleading for years for things like Wicks Law reform, energy solutions, and better economic opportunities for upstate.

During this Fourth of July week, it is interesting to think about representation and the delicate balance of the will of the people with what is right for the entire state or country. Should the will of the people ultimately trump all other considerations, as anti-Federalist Melancton Smith argued during the ratification of the federal Constitution? Or should our representatives be trusted to know better than the common person what is in the best interests of their constituents and the public at large, as argued by 18th century British political theorist Edmund Burke?

In New York, at least, it seems that our broken institutions prevent us from having either type of representation. The rules of the Legislature ensure that only bills that are approved by leadership are considered and approved, thwarting legislation that is popular with the public but opposed by powerful special interests. New Yorkers are also unable to trust that their elected officials will act in their best interests, since big donors and gerrymandered districts seems to have more sway over elections than voters.

That's why we think campaign finance reform, legislative rules reform, and independent redistricting must be on the top of the legislative agenda. Until and unless reforms in these areas are implemented, we can neither ensure that our voices are heard in government nor trust our representatives to act in our best interests.

Tuesday, July 03, 2007

Paying the Piper

Check out this morning's Buffalo News for a great editorial countering the idea that there are more important issues before the Legislature than campaign finance reform:
If he who pays the piper gets to call the tune, then the music in Albany is programmed primarily by those who give millions of dollars a year in campaign contributions to those who make our laws.

That's why all sorts of reforms - those opposed by big business, big labor, big medicine and big lawyers - never have a chance. And that is why Gov. Eliot L. Spitzer is correct when he says that the only chance for other reforms to take hold in New York State government is for the most important reform, campaign finance rules, to come first.

Monday, July 02, 2007

In His Own Words

Sick of hearing second-hand accounts of what our leaders are saying about this legislative session? The Syracuse Post Standard's website features a transcript with Governor Spitzer from a meeting with their editorial board. He talks about the importance of bringing the Legislature back to work on issues like upstate development, campaign finance reform, and education.