McCain, Obama, Money

I've got a post up on the other Brennan Center blog, noting that it's probably time to start reviewing a much overlooked deal between McCain and Obama from March 2007.

New York at "High Risk" for Voting Machine Mishaps on Tuesday?

So says Common Cause and Verified Voting, in a report released today.

Opposition to Liberty

Here's Doug Kellner's Affidavit in Opposition to voting system vendor Liberty's petition now before the State Supreme Court in Albany. Liberty seeks to reverse the State Board's refusal to allow the purchase of its touch screen DRE voting machine.

We agree with much that Commissioner Kellner has to say -- especially his citations to our letter of January 22.

Here's a Lulu of an Idea

Capital Confidential has put in spreadsheet form [Senate|Assembly] what seasoned observers of New York politics already know--the base legislator salary of $79,500 is only the real pay for a fraction of our state legislators who don't receive a stipend, commonly known as a "lulu," for holding so-called leadership positions. CapCon notes that EVERY state senator is eligible for a stipend. (We say eligible because it is possible that some decline the extra cash.) This means that the lowest paid senator would make $88,500. Salaries are only a little less padded on the Assembly side, with two-thirds of Assembly members eligible for an average stipend of $14,427.

There is something to be said for making legislator salaries high enough to attract top-notch individuals to public service. But if we're going to have a discussion about pay raises, which we seem to be in the midst of, let's be honest about what members are earning. There's a lot of extra money floating around the legislature and it provides each chambers' leaders with a lot of extra of power.

Here's an idea: Why not use these lulus to help boost base salaries for all members, regardless of party, seniority or political loyalty? This would reduce the temptation of leaders to use leadership positions and committee chairs to curry favor and force loyalty among members.

For a depressing window on how little Albany has really changed over the years, check out this 1987 New York Times editorial railing against the lulu.

We Never Cease to Be Amazed

This is depressing.

As some may recall from earlier posts, the State Board of Elections did not authorize the Liberty DRE for purchase by February 8 because Doug Kellner, a Democrat on the Board, determined it did not comply with New York law.

The Republican commissioners were not very happy about this. For some reason, they really, really wanted that DRE to be authorized for purchase (who can say why?). They nearly blocked the authorization of any system as a result, but eventually relented after a tense 24 hour standoff. It looked like three systems (all ballot marking devices --meaning machines that mark a paper ballot) were authorized for purchase.

But today, we learn, the Board essentially reversed itself. Two of the three ballot marking devices -- THE ONLY TWO THAT HAVE EVER BEEN USED BEFORE IN AN ELECTION IN THE UNITED STATES -- have been taken off the table.

Assuming all of this stands (at least one vendor lawsuit is pending -- we now expect to see more), New York counties will have only have one choice of voting machine -- and it will be one that has never been used before in this country.

What's doubly depressing about this decision is that one of the systems rejected today may well have been the most accessible system. If we understand correctly, it could have allowed disabled voters to cast their ballots without ever having to handle the ballots themselves (something that is very important to many advocates for both blind voters and voters who manual dexterity impairments).

But why should any of this matter? If a Democrat like Doug Kellner can block one system, why shouldn't the Republicans be able to block another? Given what we know, we have a hard time believing the decision had anything to do with which system was best for disabled voters, or New Yorkers in general.

It ain't over . . .

. . . until Justice Kimberly O'Connor sings.

We're getting word that there is a hearing going on right now in Albany Supreme Court. Liberty is asking for a temporary restraining order to require that the State Board put their DREs (touch-screen electronic voting systems) on the selection list provided to counties for accessible voting systems they can purchase (counties must make decisions on or before February 8).

Developing . . . .

UPDATE: Albany Supreme Court Justice Kimerbly O’Connor denied Liberty’s application for a temporary restraining order to compel the NYSBOE to include Liberty on the list of approved units for selection by the county boards of elections.

Justice O’Connor has scheduled a hearing on an Article 78 proceeding brought by Liberty which challenges the State Board of Elections’ failure to authorize the purchase of Liberty's DREs for 1:30 p.m. on Thursday, January 31.

Leave the Campaign Money at the Revolving Door

Like many legislators before him, former Assembly Majority Leader Paul Tokasz left office in 2006 with a considerable campaign account, which, under New York law, he was allowed hang onto. Now he's working as a lobbyist and sprinkling his campaign cash, $57,000 of it so far, among the very lawmakers that his firm is trying to sway.

This is hardly "new news." As we've noted in the past, former Governor George Pataki has been funneling money through his PACs to sitting legislators since he left office at the end of 2005, and several former politicians from Western New York have used leftover campaign contributions to "stay in the game." This loophole is only one of many in our campaign finance and ethics laws that allow former and sitting officials to stretch the meaning of a campaign expenditure to cover almost anything.

The use of campaign contributions should be limited to legitimate campaign expenditures, which, after a legislator has stepped down, should only extend as far as paying off campaign debts or running for another office. To address Tokasz's point that he might again run for office one day, wouldn't it be possible to put campaign accounts in escrow until politicians decided to throw their hats back in the ring or donate the money to charity?

Want to Switch Your Party Affiliation? Too Late.

It's too late to register to vote in the February 5th primary, and it's way too late to change or adopt a party affiliation. Check out this post by our own Renee Paradis and this one by the Gotham Gazette's Andrea Sentano for details on New York's onerous rules for changing party affiliation, where we stand compared to other states, and what can be done about it.

New York Times: Lopez Torres “Blazing a Trail”

The Supreme Court’s reversal of the lower court decisions in Lopez Torres v. New York State Board of Elections was a major victory for the defenders of New York’s judicial selection status quo. As counsel to the plaintiffs, the Brennan Center, along with all those observers who understand the seamy realities of how New York’s system actually works in practice, was certainly disappointed by the decision.

That said, as we indicated in an op-ed in Tuesday’s New York Law Journal, the First Amendment claim rejected by the Supreme Court is just one chapter in an 87-year story. The battle to end the Byzantine process by which New York’s trial court judgeships are determined, will go on both legislatively and in the courts.

Today, a wonderful and deeply personal profile story in the New York Times looks at the remarkable woman and jurist behind the case that bears her name. The profile examines the courage of our lead plaintiff, whose story serves as a valuable reminder of why the fight for a truly accessible selection process is not only worth fighting, but is an essential component the larger struggle for truly fair and independent courts.

The SBOE Decision on Voting Machines: What Does It All Mean?

There's been some confusion in the press about the State Board's decision on voting machines. Does this mean New York will now replace its lever machines with paper ballots and "optical scan" machines that read those ballots (something many election integrity advocates have been hoping for)?

Well, not necessarily. What happened in Saratoga yesterday was that the Board approved three types of "accessible" voting units -- called "ballot marking devices" -- that will allow disabled voters to fill out paper ballots in this fall's elections. One of these machines will be placed in every polling site in New York beginning in September. But most New Yorkers will continue to vote on lever machines until 2009. In accordance with a federal court order, in 2009, the lever machines will either be replaced with DREs (touchscreen machines that directly record votes and print a paper trail -- much reviled by many activists) or "optical scanners" which can count paper ballots filled out by hand or by ballot marking devices (like the ones approved for purchase yesterday).

So what's the big deal about the State Board's decision? First, it was (for the time being) a rejection of full-face DREs, which the Brennan Center has long opposed. Second, it makes it much more likely that come 2009, counties will not purchase these full-face DREs, even if the State Board authorizes them for purchase to replace the lever machines.

Why? Buying full-face DREs in 2009 won't make any economic sense. Counties will already have bought and used (and continue to use) ballot marking devices that produce paper ballots. Adding a couple of scanners to each polling place will be far cheaper than buying DREs.

Plus, from an election administration perspective, having one system -- that allows voters to fill out paper ballots (whether by hand or ballot marking device), and then reads those ballots with an electronic scanner (with all systems running on the same software, developed by the same vendor) -- is a lot simpler than having two systems -- one system for disabled voters that produces paper ballots, and an entirely different system (from an entirely different vendor with entirely different software), that records votes directly onto a computer without a paper ballot.

This also means it's unlikely the Brennan Center will be making our way to court over voting machine issues in New York. At least for now.

For further thoughts on the Board's decision yesterday, go here.

Great News for New York Voters

The ATU is reporting that the three ballot marking devices (which will allow disabled voters to fill out a paper ballot) have been approved, and the Liberty full-face DRE has not.


We don't know what happened (we'll forward the scoop when we get it). But this is very good news for New York.

The Project Sunlight Roadshow Comes to Rochester

Our good friend Stu Berger, president of Citizens for Better Government in New York, informs me that his organization will be co-hosting Blair Horner's demonstration of Project Sunlight, the new website created by the Attorney General's Office that allows New Yorkers to explore legislation, campaign finance data, lobbying activity, and government contracts. Here are the details:

Blair Horner & Project Sunlight
Tuesday, January 29, 6:30 - 8:30 pm
Greece Town Hall [map]
One Vince Tofany Blvd, off Long Pond Rd just North of Latta Rd
Light refreshments provided 6:30-7:00pm
Concise presentation promptly at 7:00 PM followed by Questions and Answers

As we said when Project Sunlight was unveiled, we think this is an impressive step forward for transparency in our state government. The AG's Office is taking comments and suggestions, so we encourage everyone in the Rochester area to check out the site and use the Greece Town Hall Q&A to pass along your ideas for improvements. If you can't make it to the demonstration (or you live outside the Rochester metro area), you can also e-mail your comments here.

Embarassed at the SBOE

The Times-Union reports on the latest example of partisan gridlock in New York, as the State Board again fails to come to agreement on which voting systems to authorize for purchase. We'll see if they do any better today.

Bo Lipari is embarassed.

And we understand his embarassment. The hang-up is over whether the board should authorize the purchase of one type of "accessible" voting machine, the Liberty DRE, that is outrageously expensive compared to other systems, confusing for many voters to use and -- as far as we know -- has never actually been used before in the United States. It is also probably inaccessible to a very large number of disabled voters (the very voters these machines are supposed to serve!).

There do not appear to be any legitimate objections to the other three ballot marking devices, two of which are far less expensive and have been successfully depolyed around the United States. But unless the Liberty DRE is approved, the Republican commissioners appear willing to put the entire approval process on hold.

Whose interest is the Board of Elections supposed to be serving again?

Brennan Center to SBOE: Don't Even Think About It

Tomorrow morning the New York State Board of Elections will meet to authorize the purchase of accessible electronic voting systems for every polling place in every county in the State. In accordance with an Order signed by federal Judge Gary Sharpe on January 16, 2008, all New York counties must deploy these accessible units in time for the fall primary. The decision made tomorrow will directly affect (and probably determine) which systems New York chooses to replace its lever machines in 2009.

The Brennan Center has sent the State Board a letter (joined by several other groups) that opposes any effort by the State Board to authorize the purchase of full-face DREs, and notes that we hope that "further litigation will not be necessary to preclude New York counties from purchasing voting machines that potentially will disenfranchise hundreds of thousands of New Yorkers in violation of state and federal law."

The State Board is considering authorizing the use of two basic kinds of systems: full-face DREs, "or "touchscreen machines," which present every singly candidate, every race and every ballot measure on a large computer screen and prints out a "paper trail" which provides a record of the voter's selections; and traditional ballot marking devices, which present voters with a scrolling computer interface, that allows voters to consider a single race at a time, and uses that computer interface to mark a paper ballot that can later be read by an optical scan machine.

If counties are only allowed to purchase traditional ballot marking devices, they will almost certainly purchase optical scan machines (which read hand marked paper ballots and ballots marked by ballot marking devices) in 2009. If, however, the are allowed to purchase and choose the full-face DREs as accessible units in 2008, they will likely purchase full face DREs to replace all lever machines in 2009. This is a simple matter of economics and election administration: election officials generally prefer to have one system (all DREs or Ballot Marking Devices with Optical Scan machines) for everyone.

Based on scientific study, as well as interviews with members of the public who have used the accessible systems New York is considering, the Brennan Center has concluded that the full-face DREs being considered by the State Board present a confusing computer interface and inacessible paper trail "that predictably disenfranchises hundreds of thousands of voters, who are disproportionately voters of color and disabled voters."

The Brennan Center's New Look

If you've visited the Brennan Center's homepage in the last 24 hours or so, you've probably noticed that we've launched a new version of our website! You'll still be able to find all of the publications, op-eds, and legal analysis you've come to expect from us, but you can also access our organization's fledgling blog. ReformNY will continue to bring you updates on reform efforts in your neck of the woods, while the Brennan Center-wide blog will feature commentary from our experts and outside voices on issues of democracy and justice in the other 49 states and the federal government.

In case you're new to the Brennan Center's work outside New York, here are a few links to help you get your feet wet:

The Truth About Voter Fraud - The publication by counsel Justin Levitt finds that allegations of widespread voter fraud are greatly exaggerated.

Twelve Steps to Restore Checks and Balances - Justice Program Deputy Director Aziz Huq makes recommendations for how we can keep our country secure and free.

Green Party of Connecticut v. Garfield - The Brennan Center's campaign finance litigation team is defending Connecticut's full public financing system.

SCOTUS Decision in NYS Board of Elections v. Lopez Torres

The Supreme Court handed down its decision today in NYS Board of Elections v. Lopez Torres. Here is the statement released by the Brennan Center:

This morning plaintiffs’ counsel issued the following statement in response to the decision issued today by the U.S. Supreme Court upholding New York’s system of selecting State Supreme Court Justices (trial judges in New York). The case is New York State Board of Elections v. López Torres. The Brennan Center for Justice at NYU School of Law, together with co-counsel Arnold & Porter LLP and Jenner & Block LLP, represents the plaintiffs in the litigation.

"New York has compiled an 87-year record of anti-democratic exclusion, unaccountability and corruption in judicial selection. These problems will not go away because of the U.S. Supreme Court’s decision," said Kent Yalowitz, Partner at Arnold & Porter, LLP.

"The plaintiffs are considering further litigation options. In the meantime, we urge the political, civic, and bar leaders who stood up for reform to continue to stand with us, demanding legislation that will end the closed process, which has, for too long, undermined public confidence in New York's courts," said Frederick A.O. Schwarz, Jr., Senior Counsel, Brennan Center for Justice at NYU School of Law.

“As the concurrences by Justices Stevens and Kennedy make clear, the Supreme Court’s decision should not, by any means, be read as endorsing New York’s flawed system,” said Surrogate Judge Margarita Lopez Torres, the lead plaintiff in the case.

Read our archives to learn more about the case.

What A Difference a Year Makes

On Day 366 in Albany, apparently everything changes—again. Echoing the insightful sentiments of my colleague Bethany, the governor’s annual message was disappointingly devoid of his vision of sweeping reform from only a year ago.

“Our first objective is to reform our government – not merely for the sake of reform, but because if our state is to prosper again, we need a government that is a catalyst for change instead of an impediment,” Governor Spitzer said in his inaugural State of the State Message.

Take just one example on an obvious reform issue, New York’s (lack of) compliance with the Help America Vote Act, which is the worst in the nation. As I write, a federal judge in Albany is deciding when the state will move from lever-operated voting machines to a technology from, well, this century that will allow for audits of the results. The Executive Chamber has been noticeably silent on the timetable for the switch. Even though Governor Spitzer maintains a debit balance in his account of political capital, one would think that replacing outdated voting technology wouldn’t ruffle partisan feathers.

It is worth noting, however, that our energetic governor's silence on a given issue doesn’t necessarily mean inaction. Last year, Governor Spitzer failed to mention support for historic same-sex marriage legislation during his January address. Only three months later he introduced such a bill, apparently becoming the first governor in the nation to do so.

I, for one, still have hope for Day One anew.

Don’t Let Reform Slip Off the Agenda

At the beginning of 2007, we heard a State of the State from Governor Spitzer that sounded highly promising, and included firm commitments to reform in the areas of ethics, campaign finance, lobbying, elections, the judiciary, and the budget. He followed up the speech with a hard push to pass a campaign finance bill and proposals to change the way we choose judges and draw district lines. What a difference a year (and some political trouble) makes! Today's speech completely ignored last year’s ambitious reform agenda, making at the end a passing reference only to campaign finance reform.

We don’t quarrel with the importance of the items like education and healthcare that did make the cut, but we were greatly disappointed to hear crickets instead of a renewed commitment to reform of our government systems. As we have argued many times, the dysfunction we find in Albany doesn’t keep to itself -- it filters into the problems we face in all other areas. Sky-high contribution limits make our elected officials responsive to their big donors rather than ordinary voters and taxpayers. Gerrymandered districts help incumbents skate to 90-plus percent re-election rates, regardless of whether they are tackling the tough issues. And legislative rules allow Senate and Assembly leaders to bury even those bills that enjoy the support of a majority of legislators and the public.

The 2008 election season will put our broken campaign finance system, overdue switch to electronic voting machines, and gerrymandered districts on display. We will spend the year pushing for the reforms New York so sorely needs. We hope the Governor will fill in today's silence with a plan to pitch in.

Turning the Change Message Into Actual Change

Washington Post writer Richard Cohen has a great column this morning taking on the idea of "change" that has been omnipresent in this presidential election. He argues, as we have on both the New York State and federal levels, that the answer to how you get real change starts with public financing of campaigns.

Here's a snippet:

"The only way to eliminate the disproportionate influence of lobbyists is to break Congress's nymphomaniacal lust for campaign funds. Otherwise, we will forever be getting remedies that sound good in a presidential debate but that don't really matter all that much (and that in any event affect only one branch of government, the presidency)…

"I don't blame any of the candidates. Even special interests have a right to be heard. But not a greater right than you or I. If elections were publicly funded, members of Congress would not be reliant on special interests for money to campaign. As in all things, there would be a downside. Certain groups would lose some clout -- including, unfortunately, organizations with unpopular but progressive agendas. In general, though, the disproportionate role of money would be curbed."

Welcome, Susan Lerner!

We were sad to see Rachel Leon leave her post as Executive Director of Common Cause NY, but we're delighted at yesterday's formal announcement that Susan Lerner, formerly of the California Clean Money Campaign, is taking up the mantle of reform at our ally (and Soho neighbor) organization. We look forward to working with Susan and her team in 2008 and beyond!

Registration Deadline for February 5th Primary Approaching Fast

As we all wait with bated breath for the results of tonight's Iowa Caucuses, New Yorkers can make sure they get their shot at the presidential candidates by double-checking their registration status. Voters must submit registration forms in person or postmarked by next Friday, January 11th in order to be eligible to vote in the February 5th primary.

You can find the form here, and use this map to find the address of your county's board of elections.

Decision for 2008 Voting Machines Already Made?

While many of us at the Brennan Center were on vacation, Judge Sharpe held a hearing on DoJ's motion to force New York to comply with HAVA and purchase new electronic voting machines in time for the November '08 election.

There was a fair amount of commentary related to the hearing, but most of it missed what should have been the big story. While papers focused on the fact that Judge Sharpe threatened to throw Board of Election commissioners in jail, and insisted that the State Board offer a single plan by this Friday, there was far less focus on the fact that the Judge and the Department of Justice seemed to agree on what the solution was: specifically, that the Board should adopt a plan substantially similar to the one already submitted by the Democratic members of the Board (the Republicans submitted their own plan).

The Democratic plan (also referred to as the "Zalen Plan" for Co-Executive Director and Democratic board member Stanley Zalen) would ensure that the state had one accessible electronic voting machine in every polling place this November, but would stop short of replacing all lever machines with new electronic systems until 2009.

We've already stated on this blog that we think that's the right approach. It ensures that disabled voters in New York will be able to exercise the same rights as disabled voters in the rest of the country (namely vote on machines that make it substantially easier for many of them to vote independently and privately) without forcing the state to replace all lever machines with equipment that has not been adequately tested.

Of course, there's no guarantee that the Board will take the very strong suggestion offered by Judge Sharpe and Department of Justice to adopt this approach. But it's hard to believe they would defy a Federal Judge who was so obviously annoyed by their continued stalemate.