Testimony of Lawrence Norden before the New York State Senate Standing Committee on Elections

Lawrence Norden—ReformNY Editor in Chief and Senior Counsel at the Brennan Center—testified yesterday before the New York State Senate Standing Committee on Elections on the introduction of optical scan voting machines in the 2010 primary election. His testimony focused on three areas where the Brennan Center sees room to improve administration of the new optical scan machines, and where both local boards and the State legislature can take concrete steps to improve the use of these machines going forward: (1) ensuring that poll worker training focuses on allowing voters to vote and vote privately, regardless of problems with the machines; (2) improving ballot design so that New Yorkers can easily read and complete their ballots; and (3) adopting policies for using machines to ensure that votes are counted as they were intended to be cast.

To read Mr. Norden’s full testimony, click here.

Conservative Party and Working Families Party Unite in Lawsuit against State Board of Elections

The Brennan Center has filed a lawsuit on behalf of the Conservative Party of New York State and the Working Families Party against the State Board of Elections over its discriminatory policy of counting political party votes when a voter fills in more than one oval for same candidate running on more than one party line – known as a “double vote.” New York’s “fusion” voting system allows for multiple political parties to endorse the same candidate. Instead of returning the ballot to the voter or providing them with a warning message – something the machines can easily be programmed to do – the policy the state has chosen to adopt is to simply ignore the vote cast for the minor party and count the full vote for the major party. This problem was also described by NY Daily News.

A clear case in point this November is Democratic Party gubernatorial candidate Andrew Cuomo, who has been cross endorsed by the Working Families Party. Should a voter mistakenly fill in the oval with Mr. Cuomo’s name under both party lines, the vote for the Working Families Party is ignored. This is particularly troubling for minor parties, whose definition as a political party under New York Election Law is directly dependant on their ability to receive at least 50,000 votes for their gubernatorial candidate. Their ability to receive 50,000 votes in a gubernatorial election furthermore guarantees minor parties a location on the ballot for the next four years.

The State’s policy is blatantly unconstitutional and, without so much as providing voters with a warning, flatly ignores their intent to support a minor party. This is a problem which can easily be corrected by the State by setting the machines to automatically reject the voter’s ballot and informing the voter that if she wants her vote counted for a political party, she will have to fill out a new ballot and ensure only one oval per contest is marked. We hope the State will do so immediately before votes are lost this November and minor parties bear the brunt of this poor policy choice. You can read more about the case here, as well as download a copy of the complaint.

List Maintenance or Voter Purging?

Recently, The Brennan Center came across an article in the Levittown Tribune discussing Nassau County’s new optical scanner machines. The article reported that the County Board of Elections Office was sending out 900,000 voter check cards and purging any names which came back as undeliverable. We found this to be particularly troubling because the reported practices would have violated federal law.

Under federal law, for election officials to purge a voter from their registration rolls, two conditions must be met. First, the registrant must fail to respond to a forwardable address confirmation notice with a pre-addressed response card with prepaid postage. Second, the registrant must fail to vote in two consecutive federal general elections. Furthermore, systematic purges cannot occur within 90 days of an election. The Brennan Center’s report on voter purges details purging practices extensively and ReformyNY has blogged on this subject before. As we have discussed, lists used to purge voters from the rolls are more often than not full of errors which lead to disenfranchisement.

The Brennan Center contacted the Nassau County Board of Elections to discuss their list maintenance practices. We were relieved to learn that the process mentioned in the article was not being used in Nassau County and we were assured that Nassau County is complying with federal law regarding its list maintenance practices.

Still … the law in this area is not well understood, and it's easy for election officials around the state and country to make mistakes and improperly purge voters. We encourage voters around New York to make sure their county officials are following the law.

And as a precautionary measure we also encourage all our readers in Nassau County to verify their voter registration status with the Nassau County Board of Elections. Readers who have recently moved should look at the Brennan Center’s Voting After You Move: A Guide. Should you have reason to believe your county may be unlawfully purging voters from its voter registration rolls, please contact the Brennan Center.

Even Governors Overvote

For those skeptics who don’t believe that overvoting is a serious problem, California Governor Schwarzenegger may prove you wrong with this video posted on The Huffington Post, courtesy of Good Day LA, as he casts his ballot in California’s June 8 primary. Fortunately for Governor Schwarzenegger, the machine automatically rejected his ballot and the poll worker was there to assist. Unfortunately, as we have pointed out before, New York’s machines will not automatically reject overvoted ballots. New York’s machines will instead lead voters making the same mistake as the governor to a confusing screen where they are given the option to click the green “Accept” option on the touch screen, cast their overvoted ballot, and have their vote not be counted in that particular race.

A Test of New York's Barriers to Open and Competitive Elections

A Quinnipiac Poll released yesterday shows approval for the state legislature at an all time low, with record numbers of voters (more than half, in fact) saying they would vote against their own legislators.

As in the rest of the country, there is clearly massive discontent with the status quo. But whereas this has already meant that many incumbents around the country have been ousted, and a "tidal wave" of change is predicted throughout the country in November, New York may yet again be the exception.

We have long argued that despite wide-spread discontent in New York with our government, barriers to open and competitive elections -- including the power of party bosses and legislative leaders to punish dissenters, an opaque legislative process that makes it hard to hold individual office holders accountable, exceptionally weak campaign finance laws, a closed redistricting process, and arcane and difficult ballot access laws -- meant that voters could not adequately express that discontent at the ballot box. Over the past few decades state legislators have enjoyed one of the highest re-election rates in the country at approximately 99%.

Has the tide of voter discontent in New York reached so high a point that large number of incumbents will lose in New York, as they seem destined to (and in some cases already have) in the rest of the country?