Thank God For New Jersey?

There's an old saying in Alabama and a few other neighboring states -- "thank God for Mississippi" -- that serves to remind people that as bad as things might be in their own state, they're worse somewhere else.

It might be hard to believe that when it comes to voting machines, any state could look more dysfunctional than New York. But New Jersey is giving New York some pretty darn good competition: it's starting to look as though, for yet another general election, voters in New Jersey will be using one of the worst voting systems in the country, without any paper trail to independently verify their votes.

New Jersey passed a law requiring voter verified paper records in 2005. We learn today that after failing to meet previous deadlines, the Attorney General is now asking for another extension, meaning voters in New Jersey will continue to vote on unverifiable electronic machines in November 2008.

We're all for rigorous testing of voting machines and printers. It would be foolish to buy printers that are likely to fail. But it's hard not to ask, what are they thinking in New Jersey? Why would they even contemplate buying printers that have failed testing before (see list of failures here), for a voting system that is so lousy to begin with?

With a looming budget crisis, New Jersey is looking to spend $20 million dollars on printers that have never been used anywhere else, for full-face DREs, which are the worst type of voting system in the country. Professor Kimball of the University of Missouri has shown that the layout of the full-face DREs they use in New Jersey is so confusing that it may result in as many as 20-25% of voters accidentally missing state ballot initiatives. There are also troubling news reports from the February 5 primary that indicate these same machines were providing inaccurate voter totals.

In the end, almost all New York counties rejected confusing, error-prone full-face DREs and instead purchased optical scan machines. It is hard not to ask, what is wrong with New Jersey that it would insist on investing $20 million on questionable printers for questionable machines that virtually every county in New York, and every state in the nation, has rejected?

Through the Albany Looking Glass

In high functioning legislatures, one or both chambers will assess a subject, draft a bill, hold hearings, deliberate, and pass or reject legislation. When similar (or not so similar) bills on the same subject are passed, a conference committee will typically be held between representatives from the upper and lower chambers to reconcile the differences and craft a compromise bill.

Now step through the looking glass and see how we do it in the Empire State.

Yesterday, in a piece about the shifting balance of power in Albany, New York Sun columnist Davidson Goldin lauds the Legislature, in effect, for avoiding moderation and circumventing proper legislative process. He writes that, by passing "one-house bills" that have no hope of becoming law, "[e]ach chamber can stake out an extreme position that then opens the door to negotiations -- leading to a compromise that generally serves the people of this state fairly well."

I guess when you live in New York too long, even the most dysfunctional elements of state government can start to look reasonable.

Instead of working toward viable legislation from the beginning, our Legislature wastes time and taxpayer money by crafting bills that are dead-on-arrival in the other chamber. In the best case, compromise is eventually reached, though we note that it is overwhelmingly done behind closed doors rather than in the public setting a conference committee could create. But more often, the Legislature ends each session with loads of unfinished business--Senate and Assembly bills on the same important subject that are derailed by the lack of institutionalized conference committees.

The Senate and Assembly should amend their operating rules to make the conference committee a regular part of New York's legislative process, including a mechanism for bill sponsors to force a conference committee when the two chambers have passed legislation on the same topic.

The Six Million Dollar State Senator?

Tomorrow’s special election for the 48^th Senate district will continue a disturbing trend in state politics. As the strength of party control ebbs, Senate campaigns have become exponentially more expensive. As reported in today’s Albany Times Union, it appears the race between Assemblymen Darrel Aubertine, the Democrat, and William Barclay, the Republican, will be the first or second most expensive ever for the Senate.

According to Russ Haven, legislative counsel for New York Public Interest Research Group, the candidates have raised about $1 million each and the parties have spent more than $1.5 million combined—so far. When all is said and done, the North Country Senate seat may cost a total of $6 million. In another closely contested Senate race from last year, also a special election, more than $5 million was spent between Craig Johnson and Maureen O’Connell on Long Island.

No matter what happens tomorrow, whether the Democrats gain a seat or the Republicans hold off a challenge, the Senate will remain one or two seats away from a tie. (That’s if the rumored behind-the-scenes maneuvering by Governor Spitzer can’t turn up a Senate Republican willing to switch parties.)

In any event, this year there are about 10 Senate seats that may be contested. If the past is any guide, this year a total of $50 million may be spent on state Senate races. Like the fictional astronaut Steve Austin, the state’s campaign finance reform is in critical need of rebuilding.

As my colleague Ciara Torres-Spelliscy and Ari Weisbard point out in “What Albany Could Learn from New York City: A Model of Meaningful Campaign Finance Reform in Action,” contribution limits are at least eight necessary fixes needed to alter the system. Perhaps most important is the sky-high aggregate contribution limits, which is $150,000 for individuals, and the lax rules governing corporate contributions, which are banned by the federal government and nearly half the states.

We’re getting ahead of ourselves, but we have the capability, though perhaps not yet the will, to do what 15 states—and most notably New York City—have already done. A system of public financing that would be far better than it is currently.

Better. Smarter. Fairer.

One Legislator, How Many Votes?!

The New York State Legislature was famously dubbed the worst in the nation following a study by the Brennan Center published in 2004 and an update in 2006. One of five key criteria or weaknesses that led to the conclusion was dysfunction in legislative committees including a rule about proxy voting.

Prior to 2004, according to state Senate rules, committee members were permitted to cast their votes by proxy, i.e., when absent. In 2005 the Senate removed language permitting proxy voting, but did not place an outright ban. In both reports, it was noted that only one other professional legislature allowed proxy committee voting, the Pennsylvania Senate.

Admittedly, in the case of proxy voting or actual rules enforcement, things could always be worse.

During floor votes in the Texas House of Representatives, members race around to cast electronic votes of absent colleagues. (See video below.) As the report on local news points out, the practice violates the chamber’s rules. If the mess weren’t already ironic enough, a member that defends the practice sponsored a strict voter ID law, which was inspired by claims of voter fraud. As our own Justin Levitt pointed out in The Truth About Voter Fraud, such claims are red herrings.

Apparently acts of voter fraud committed on floor of the Texas House dwarf the records of such acts by the public during elections. Maybe Texas does need a voter ID law after all—just for the members of its House.

Running Again or Just Questionable Use of Old Campaign Funds?

This morning's New York Times reports that Sean Patrick Maloney, a candidate for attorney general in 2006 and now first deputy to Governor Spitzer, spent almost $35,000 from his campaign account in 2007. Among his expenses were a party for supporters of his AG run and maintenance for his donor list and his political website. It certainly appears as if he might be ramping up another run for office, but Maloney insists he is simply taking steps to put his account to rest.

The Times points out a reason that Maloney might be loath to admit to any office-seeking: Governor Spitzer's second executive order upon taking office banned his appointees from seeking elected office.

Maloney's position in the administration doesn't fall under the scope of the ban, but whether he's running or not, his actions don't look great. On the one hand, if he is laying campaign groundwork, he's violating the spirit, if not the letter, of the Governor's executive order. But if he isn't running, buying meals for former supporters and sending out thousands of holiday cards doesn't seem to be legitimate use of leftover campaign funds.

We hope the Governor will start holding all of his employees to the high standard set for those heading up state agencies and public authorities. It's also well past time for the Governor and the Legislature to tighten up the rules for use of campaign cash.

Death Knell for DREs in New York?

Given the fact that other than Hamilton County (New York's smallest in population) no county in New York has listed a DRE as its preferred accessible unit come September, is it safe to assume New York will be almost all paper ballot and optical scanning machines come 2009? Are DREs dead in New York?

Bo Lipari of New Yorkers for Verified Voting isn't so sure:

Yogi said, it ain’t over till it’s over, and friends, it ain’t over yet. First of all, Judge O’Connor has required the State Board of Elections to extend the county machine selection deadline yet another four days, until Tuesday, February 19, giving the counties more time to change their selection to the Avante or LibertyVote DREs. But since they reaffirmed their choices last week, I don’t think any counties really want to change anything - they just want to move forward and get the new systems in place. More ominously however, don’t think for a minute that LibertyVote and Avante are done trying to stop this in any way they can.

But if every county in the state has unequivocally stated that they do not want DREs, can DRE vendors force them to do so through the Courts? Indeed they might, for this is the way hardball is played in rough and tumble New York. DRE vendors have put in way too much money to stop now. As you read this, LibertyVote’s lawyers are being paid $300 an hour to come up with something, anything, to salvage their hopes of dipping into New York State’s HAVA pot of gold.

The State Board does not formally authorize the use of the Ballot Markers until February 27, after testing is complete. Purchase Orders will be issued the following day by OGS. LibertyVote has successfully challenged the Boards’ authority to rule on acceptable systems once before, and with the right judge, who is to say they can’t do it again?

I'm a little more sanguine than Mr. Lipari. Is it possible that come 2009 New Yorkers will be voting on DREs rather than paper ballots, but it seems very unlikely. Of course, as Bo points out, taking anything for granted when it comes to New York, elections and big money is unwise.

Utica-Area Citizens Speak Out About Possible Legislative Pay Raise

Check out the Observer-Dispatch's compilation of views from several Utica-area citizens on the issue of pay raises for legislators and the possibility of creating a commission to handle the issue in the future.

City Election Oversight Alright

This afternoon the Brennan Center offered testimony before the New York City Council’s Committee on Governmental Operations Council of the City of New York. Chaired by Brooklyn Councilman Simcha Felder, who is equal parts astute and charming, the oversight hearing focused on improving democracy and increasing participation in the electoral process. Also present were Councilmen Peter Vallone, Jr. and Domenic M. Recchia, Jr., and DeNora Getachew, Councilman Felder’s Legislative Council.

I, along with NYC Voter Assistance Commission Executive Director Onida Coward Mayers, Susan Lerner of Common Cause, Neal Rosenstein of NYPIRG, Teresa Hommel of www.WheresThe Paper.org, activist Dan Jacoby and David Greenfield of the Sephardic Community Federation, among others, offered a wide array of testimony about issues ranging from the wise selection of optical scan-based technology for accessible machines in every polling place this fall, the impending selection of new voting machinate technology to replace all lever machines; the undue delay for party affiliation changes; and Election Day or automatic voter registration. We all look forward to working with the City Council on the range of issues, and hail the committee for its consistent commitment from seeking public comment and fostering a dialogue.

While it took some wrangling on the part of the State Board of Elections to get this far and approve optical scan-based accessible voting machines, we applaud the Commissioners and Co-Executive Directors for their final decision. However, until the next deadline passes in October, we reiterate our fierce opposition to the full-face DRE, or “touchscreen machine,” for several reasons outlined in a letter by my colleague Lawrence Norden.

However, unlike the robust discussion in the city legislature, Albany has shown no recent leadership—dare I say interest—on issues of Help America Vote Act (HAVA) compliance or general election administration. Since the state has been more than 25 months late to comply with HAVA’s requirement to replace our lever machines, we are unaware of any committee hearing, opportunity for public testimony or even a public letter from the Assembly Election Law or Senate Elections Committees.

Frankly, there’s no excuse for Albany’s legislative absenteeism in balloting.

The Atlantic Yards Campaign Finance Exception?

Given the recent publicity about the large amounts of cash transferred from real estate interests to New York campaign accounts, it should surprise no one that Forest City Ratner (developer of the controversial "Atlantic Yards" project in Brooklyn) has recently given a whole lot of money to the Democratic Assembly Campaign Committee.


But $58,420? Doesn't this run afoul of state limits on campagin contributions from corporations? No, it does not. As we noted in our report on New York's "paper thin" campaign finance laws, New York's contribution limits are riddled with exceptions. Corporations in New York may give no more than $5,000 to a candidate -- though an unlimited number of subsidiaries can each give $5,000 as well. And corporations are not limited by any amount for what they can give to political parties' "housekeeping accounts." So $58,420 in so-called "soft money" is just fine.

We're sure this very large check has nothing to do with the ongoing legal and political battles surrounding Atlantic Yards. And we're sure that this large check will not influence any politicians should they need to consider controversies around Atlantic Yards in the coming months and years. All the same, wouldn't it be nice if we had real limits on corporate campaign contributions, so that we could avoid even the appearance of buying influence?

Making Legislators Pay for Missed Votes

Here's an item from last month on the National Conference of State Legislature's blog: the Arizona House is considering a bill that would dock legislators' paychecks if they miss important votes, like those on passage of legislation, without being excused. Rep. Jerry Weiers' bill sets the price of a skipped vote at one day's pay.

An interesting stick to go along with the carrot of legislative pay raises a little closer to home?

Choice of Voting Machines in New York, County by County

Thanks to Bo Lipari, we've got a preliminary list of county choices of voting machines here. The long and the short:

NYC chooses the ES&S Automark;
Albany, Schenectady and Rockland choose the Premier (formerly known as Diebold) Automark;
Almost all other counties chose the Sequoia ImageCast.

Only one county, Hamilton (which may be the smallest in the State), has chosen the full-face LibertyVote DRE.

Bottom line: if counties get their first choice, it looks very likely that almost all voters in New York (with the exception of those poor souls in Hamilton County) will be voting on paper ballots -- and not full-face touch screen machines -- in 2009.

NYC Board of Elections Chooses Optical Scan Machines

Another dispatch from Larry on the road: the New York City Board of Elections has voted for the ES&S Automark machines as its top choice for accessible ballot marking devices in this fall's election. Check back for more information from Larry once he can get to a computer.

New Brennan Center Research Looks at NYS Campaign Finance Through the Lens of NYC

The inaugural issue of the Albany Government Law Review features an article by the Brennan Center's Ciara Torres-Spelliscy, who compares New York State's dismal campaign finance system to that of New York City.

Torres-Spelliscy and former legal intern Ari Weisbard catalogued the embarrassingly bad aspects of New York State's law:

• Aggregate contribution limits for individuals are sky-high--more than 3 times the median annual income for New York households;
• Unlike nearly half the states, New York does not ban corporate contributions and also allows donations from affiliates and subsidiaries, multiplying a corporation's influence;
• Party "housekeeping accounts," ostensibly formed to pay for headquarters and staff, may accept unlimited donations;
• Loose rules on the use of campaign contributions permit candidates and officials to spend money on questionable items;
• State contractors donating to campaigns can create "pay-to-play" conflicts; and
• Penalties for those who break the law are woefully inadequate.

For those of you who don't have time to read the whole law review article, here is an overview of the research.

The Brennan Center is pushing for comprehensive campaign finance reform in New York State with the ultimate goal of implementing a system of public financing.

Judge Orders Automark Systems Back on the List; Appeal in Liberty Case

Larry's on the road, so it's my job to keep you caught up on the New York voting machine saga. This time it's good news--a judge has ordered that the two Automark systems, previously rejected by the state Board of Elections, be put back on the list of accessible voting machines approved for use this fall.

In other good voting machine news, the Democratic Board of Elections commissioners have appealed Judge O'Connor's decision to include the Liberty DRE on the list of machines counties may consider for purchase this fall.

Election Day Problems in New York

Wendy Weiser, who spent yesterday heading up the Brennan Center's election protection efforts, discusses how a quirk in New York law prevented many from voting in yesterday's primaries.

Voting Machine Shocker

Justice Kimberly O'Connor has granted Liberty's Article 78 petition and ordered the State Board to include their DRE in the list of voting systems counties may consider for purchase for this fall. We'll provide more details when we have them, including the text of the decision, and whether commissioners Aquila and Kellner will appeal.

Needless to say, we think this was the wrong decision, and that it's bad for New York.

UPDATE: The Judge's decision is here. No word yet on whether the board or individual commissioners plan to appeal.

A Decent Idea Out of Albany

In Saturday's Newsday, Assemblyman John McEneny voices an interesting idea: why not put legislators on a state pay grade and give them cost-of-living increases instead of playing political games with raises every couple of years? Seems a lot more efficient than creating a special commission to tackle the "problem."

Observer-Dispatch: Spitzer Should Focus on Campaign Finance Reformgen

The Utica Observer-Dispatch thinks Spitzer's next target should be a reprise of last year's push for campaign finance reform:

"For democracy to work, a variety of ideas and viewpoints must be considered. That requires lawmakers whose only influences are their constituents and their conscience.

"Campaign finance reform is often a tough sell for entrenched politicians.

"The more influence they have in government, the more likely they are to receive donations. And that’s a sure way to limit new ideas in Albany.

"It’s a vicious cycle. And it’s time it was broken."

New Jersey Do-Overs: The Bigger Picture

Justin Levitt has a great post on what some may view as a slightly wacky decision that came out of New Jersey late last week: namely that New Jersey voters who voted absentee for a presidential candidate who has since dropped out of the race (i.e. Edwards, Giuliani, Kucinich), get a do-over and can vote again before the close of polls on Tuesday. As Justin points out , the decision is actually quite relevant to the current debate over . . . requiring voter ID at the polls.

CDR to NYSBOE: Bad Decisions

Have I mentioned lately how reprehensible the State Board's decision not to certify the two AutoMark voting systems for use this fall was? About how it leaves the county boards with little leverage in negotiating with Sequoia, the only voting machine vendor left standing? And how it means the counties will be forced to use machines that have never been used in the United States before?

It's been at least two days you say?

Well, here's another voice -- this from the Center for Disability Rights (i.e., the organization that represents the citizens who will be using these machines this fall):

"While the Sequoia system shows some promise, it has not been fully tested by people with disabilities. The few peers who have tested it have noted issues with the hand held tactile device and an increased amount of time to both use the machine and print the ballot which can create frustration and delays during the voting process. Rather than invest in one system with limited testing, it makes more sense for the State to reinstate the ES&S and Premier AutoMark BMD so the counties and people with disabilities have a choice. The AutoMark system is used in other states and many people with disabilities have tested or used the product before.

Advocates need to take action to ensure that we have a choice of voting machines!"

I couldn't agree more. Wouldn't it be something if the State Board actually consulted with voters who will be using the machines they are authorizing for purchase?

And the Lawsuits Keep on Coming . . . .

As predicted by this blog, we've got another vendor suing the State Board of Elections. This time, its Premier (formerly known as Dieblold -- perhaps you've heard of them?).

Premier is not happy that the State Board seemed to authorize their machine for purchase and then essentially changed its mind. It's hard for us not to be sympathetic to Premier's position, because its hard for us not to view the Board's most recent "decision" as a tit-for-tat on the part of the Republican members of the Board as punishment for the Democrats' refusal to authorize the purchase of the Liberty DRE (which, as far as we can tell was for substantive reasons -- like the fact that this so-called "accessible machine" wasn't actually accessible to many disabled voters).

Who's being punished? The people of New York. There's now only one vendor in the game, which means that vendor has got a lot less motivation to add features requested by counties, or to negotiate contracts favorable to those counties. Why should it? When there's only one system to choose from, where else are county boards going to go? Perhaps the Republican Commissioners on the State Board haven't heard of the benefits of market competition.

Civics Lesson Plus a Little Extra

Capital Confidential reports today that the Senate Majority has created a taxpayer-funded video, aimed at fourth graders, that explains how ideas become law in New York. The video seems like a slightly less fun, New York-specific version of Schoolhouse Rock's "I'm Just a Bill"--that is, until you get to 3 mins 20 secs when the narrator encourages viewers to contact Senator Bruno and explains that Bruno "is always looking for ways to make our towns the best possible places to live, work, and raise a family." The video later flashes the mailing address for Senator Bruno's office.

CapCon reports that the video has also been personalized for Senators Volker and Trunzo but notes that it is unclear whether the Senate Minority even knew that the video was being produced.

We're all for civic education, but is it really necessary (or indeed, ethical) to include a plug in taxpayer-funded materials for specific office holders in an election year? The lesson could have been conveyed without featuring any legislators and Bruno's mailing address could have been replaced by the URL to the Senate's "Who Is My State Senator" page.