City Board's Mistake on Ballot Instructions

After obtaining and posting a copy of New York City’s poorly designed sample ballot, a careless mistake on the instruction page has been brought to our attention that will surely further confuse voters on Election Day if action is not take immediately.

Instruction (2) reads: “To vote for a candidate whose name is printed on this ballot fill in the oval above or next to the name of the candidate.”

Unfortunately, as you can see below (click for a full image), in the sample ballot the ovals connected to the candidate appear below the candidate’s name. A voter who follows the directions and chooses the oval above the candidate’s name will actually be voting for a different candidate than she intends.

The Brennan Center sent this letter to attorneys for the City Board of Elections as well as the State Board of Elections, asking that they take immediate action to correct this error by changing both the instructions on the ballot as well as the instruction in the privacy booths. Furthermore, we requested that the City Board include a warning in the privacy booths against “double-voting.”

We hope that the City Board will comply with our request and we will keep our readers informed.

NYC Sample Ballot 2010 – An Early Look

For years, in contrast to many jurisdictions around the country, the City Board has refused to post sample ballots on its website. Remember all those voters complaining during the primary that the type on the ballot was too small? Well, posting sample ballots can and does help with this kind of problem elsewhere -- it gives voters an opportunity to review and familiarize themselves with the ballot ahead of time.

Amazingly, the City Board has once again failed to post any sample ballots for the voters. But we're doing our part to at least make sample ballots available here. Click here for an early look at the sample ballot for the general election on November 2, 2010 for voters in the City of New York – County of New York. As we have blogged before, New York's ridiculous design requirements for paper ballots have led to very confusing ballot design for this general election. We remain very concerned of likely overvotes and doublevotes which could disenfranchise tens of thousands of voters and threatens minor parties.

We hope that our readers will find the sample ballot useful as they familiarize themselves with the ballot prior to Election Day.

Daniel Patrick Moynihan: A Portrait in Letters of an American Visionary

ReformNY readers have been invited to an event honoring Daniel Patrick Moynihan. Please view the invitation below and make sure to note the special discount for ReformNY readers.

Daniel Patrick Moynihan: A Portrait in Letters of an American Visionary

Symposium: Monday, October 18, 2010 from 5:30 to 7:00 pm

The New York Academy of Medicine
1216 Fifth Avenue at 103rd Street

Keynote by Senator Charles E. Schumer, United States Senator for New York.

Panelists include:
Richard Ravitch, Lieutenant Governor of New York
Steven Weisman, Editorial Director and Public Policy Fellow at the Peterson Institute for International Economics and editor of Daniel Patrick Moynihan: A Portrait in Letters of an American Visionary
Peter W. Galbraith, Senior Diplomatic Fellow at the Center for Arms Control
Stephen Hess, Senior Fellow Emeritus in Governance Studies at the Brookings Institution
Richard K. Eaton, Federal Judge, United States Court of International Trade
Lawrence O’Donnell, Jr., Host, MSNBC’s The Last Word

When Daniel Patrick Moynihan died in 2003, the Economist described him as “a philosopher-politician-diplomat who two centuries earlier would not have been out of place among the Founding Fathers.” Steven Weisman has culled the papers of this gifted author and voluminous correspondent to create a vivid portrait of the senator’s life in Daniel Patrick Moynihan: A Portrait in Letters of an American Visionary (Public Affairs Books, 2010).

Reception: 7:00 to 8:30 pm
The Museum of the City of New York
1220 Fifth Avenue at 103rd Street

Co-sponsored by the American Irish Historical Society, the Glucksman Ireland House at New York University, and the Maxwell School at Syracuse University

Reservations required: 917.492.3395, e-mail programs@mcny.org.
$6 museum members; $8 seniors and students; $12 non-members
$6 when you mention the ReformNY/Brennan Center for Justice

The Museum of the City of New York
1220 Fifth Avenue at 103rd Street
New York, NY 10029
www.mcny.org

212-534-1672

Indictment of Former N.J. State Sen. Underlines the Need for Disclosure Requirement for Attorney-Legislators in New York

An indictment filed in federal court earlier this week against former New Jersey State Senator Wayne Bryant highlights the need for stronger state ethics regulation, including strict financial-disclosure requirements for legislators with part time law practices -- in New York. As reported in the Philadelphia Inquirer, the indictment alleges that the former senator received $192,000 in retainer fees from a Bergen County Law firm, which were actually bribes in exchange for support of the development projects for clients of the firm. New Jersey's ethics laws require financial-disclosure statements of legislators, spouses, and minor children, in which they must disclose “personal loans, business interests, addresses and description of property owned, as well as the names of all paid or unpaid offices and board positions held.” Furthermore, legislators are prohibited under state law as well as the Legislative Code of Ethics from “participating in legislation in which they have a personal interest.”

As in New York, however, a loophole prevents the legislator-lawyers from having to disclose their financial interests when they represent clients.

ReformNY has previously blogged on this subject and the New York City Bar found that there is no basis for claims by legislators with part time law practices that the attorney-client privilege entitles them to a blanket exemption from disclosure and reporting.

We hope that the incident in New Jersey will renew interest in pushing for ethics reform in our own state which includes client disclosure requirement for attorney-legislators.

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?

The Full Face Ballot "Requirement" Rears Its Ugly Head Again?

On Monday night, the New York City Charter Revision Commission heard public testimony before it voted to place two proposals on November’s ballot. The final 2010 ballot questions are available here.

One element of the Commission’s decision that sparked considerable discontent was the way in which the Commission lumped the proposed changes into just two ballot questions. Several private citizens who testified earlier in the evening urged the Commission to separate the issues; critics said the format would confuse voters, discourage participation, restrict voters’ options, and possibly result in an inaccurate reflection of public intent. The Commission indicated, however, that the bundling of questions was an unavoidable result of the city’s new electronic voting machines. A Wall Street Journal article quotes Commissioner Hope Cohen expressing her belief that “It's unfortunate” so many issues are being bundled together because, “When you get 10 different subjects bundled together, there is a good possibility that you will like various items and not like various items.”

Why are the new voting machines forcing the city to bundle so many issues into just two questions? No one in the press accounts we’ve read has said, but we think we know – it probably has less to do with the new machines, than requirements the State Board put in place for the machines: New York’s “full face ballot requirement,” requires that all contests and questions be placed on a single page. The result is that – unlike with lever machines, which had room for many questions – the Charter Revision Commission must come up with questions that won’t run over to a second page. Breaking up the issues into many questions may make it impossible to meet this requirement.

We have previously blogged about the requirements of New York’s so-called full-face ballot law, as well as the pitfalls of full-face ballots. In 2005 the Brennan Center analyzed the applicable provisions of New York State election law and provided a legal memorandum urging the State Board of Elections to revise its interpretation of the provision and thereby allow New York State to purchase machines with more flexibility, which would allow for better ballot design and more usable ballots.

New Yorkers (and others) Speak out on New Yorks' Horrible Ballot Design

In yesterday's New York Times, City Critic Ariel Kaminer did a great job detailing some of the challenges New Yorkers will face when using our new voting machines this fall, and in particular highlighting the lousy interface that "informs" voters if it can't read their paper ballot because it believes they've selected too many candidates. We've blogged on this before, of course.

The Times has also taken on another important design issue that will impact the experience of voters this fall, and it's another topic that is near and dear to our hearts: New York's ridiculous requirements for the design of paper ballots, which makes them far more confusing and difficult to use than paper ballots almost anywhere else in the United States. The Times asked for suggestions for improvements to these design requirements and has received some very interesting and useful suggestions.

We encourage our readers to stop at the Times site and submit suggestions of their own. It may be too late to make changes for this election, but we'll be pushing the State Legislature to make changes to ensure better design in future elections next fall.

New York Passes Two Landmark Democracy Reforms

Cross-posted from the Brennan Center blog

This summer the New York legislature took decisive action to create two important policy reforms: requiring that people in prison be allocated to their home communities for redistricting purposes; and requiring criminal justice agencies to provide voting rights information to people who are again eligible to vote after a felony conviction. While Albany has long been labeled “dysfunctional,” these particular reforms actually stand to make aspects of our state government models for democratic fairness and participation.

Both proposals are long overdue and have been introduced again and again and again, and both have garnered strong support in the legislature. Nevertheless, political wrangling repeatedly stymied their progress. This year, democracy trumped politics. Well, not quite. The legislation was pushed through in the budget revenue bill with no public hearing or debate. We will continue to criticize Albany for passing legislation behind closed doors with no opportunity for public input. But that’s for another post. Here, we hail the result.

The first reform assures that long under-represented communities have a full and fair voice in our state government. At present, incarcerated individuals are counted for federal Census purposes as residents where they are incarcerated rather than as residents of their home communities. In New York, where people are often imprisoned far from home and incarceration rates have skyrocketed in the last decade, this policy has produced increasingly harmful results. Public officials in prison districts have an incentive to build their districts on the backs of “ghost voters,” packing in prisoners who count toward the district size but who are not permitted to vote. So while officials who profit from the prison economy have an outsized voice in incarceration policy, the voting strength of the home communities – to which the vast majority of incarcerated people return – is diluted, resulting in under-representation in our state government.

The new legislation requires the Department of Correctional Services to provide the legislature with the necessary information to determine the home addresses for people in prison, and it instructs that incarcerated people should be allocated back to their home communities for redistricting purposes. This corrects a skew that has decimated the voting strength of poor and minority communities for decades, and assures that all communities in New York have equal representation and an equal voice in our government. Both Maryland and Delaware recently passed similar legislation.

The second policy reform is no less urgent. It will correct years of misinformation, promote successful reintegration and help protect public safety, while building civic participation among traditionally disenfranchised communities. Reliable information about voting rights is needed to address widespread, persistent, and well-documented misinformation in New York. Under New York law, people convicted of a felony lose the right to vote while in prison and parole. People on probation do not lose the right to vote. Once someone serves his maximum prison sentence or is discharged from parole, his right to vote is automatically restored. He need do nothing more than fill out a voter registration form like everyone else. Nevertheless, New York election officials have consistently misapplied the law and some have required people to provide unnecessary (and sometimes nonexistent) paperwork before being allowed to register. Not surprisingly, this confusion among election officials has affected the public. In 2005, researchers found that nearly 30% of people with criminal convictions surveyed in New York thought they would never be eligible to vote again.

New York’s new law is the latest in a national trend. Twenty-four other states and New York City already require certain state and local agencies to inform people when their voting rights are restored following a criminal conviction. It is a simple, workable policy that promises to have a major impact in assuring successful reintegration and reduced recidivism. Last year a retired New York parole chief testified before the New York Senate Elections Committee, “having the right to vote and learning how to exercise that right gives one a voice and a stake in the community; it promotes positive behavior and serves as a powerful conduit for making the transition from criminal to becoming a law abiding member of the community.”

The political jousting and escalating rhetoric of this seemingly endless New York budget season have been baffling, and at times excruciating. But this legislation shows that sometimes behind the shenanigans important policy reforms can be achieved. These two proposals in particular have the potential to make at least some aspects of our representative government a model for the rest of the country, and that’s not something we say lightly.

--Erika Wood

Non-Partisan Elections

Just a few short weeks ago, it looked like the issue of non-partisan elections was dead for the City Charter Revision Commission. In the past few days, however, there appeared to be a serious pushback -- claims of its demise were said to be premature. Just yesterday, the City Charter Revision Commission devoted most of its Staten Island hearing to whether non-partisan elections should be placed on the ballot this fall, to the apparent chagrin of many in attendance.

The Brennan Center outlined its position on non-partisan elections in a letter to the Charter Revision Commission in early July: given that this issue was put to the people of New York City just a few years ago -- and that it was soundly defeated after many groups, including the Brennan Center, argued that the existing evidence suggested that non-partisan elections could have adverse impacts on poor voters, communities of color and voter turnout -- that it should not be put on the ballot again unless the Commission could produce a persuasive body of research that convincingly shows it would not have these negative impacts. Further, we noted, that evidence must be provided to the public with an opportunity for adequate review and comment. So far, we have not seen that kind of evidence.

As NYPIRG noted in its statement yesterday, we are now just three months away from election day -- there is even less time for a thorough public review of whatever empirical, scientifically valid arguments there might be in favor of such a dramatic change to the way New Yorkers select their representatives. Suddenly changing its recommendation and attempting to rush non-partisan elections "through in the dog days of August guarantees a needlessly rancorous and divisive fall for the work of [the] Commission."

Goodbye Laura Seago, ReformNY will Miss You!

Here at the Brennan Center, we're in mourning over the fact that today is Laura Seago's last with us. She's on her way to the Gerald R. Ford School of Public Policy at the University of Michigan, to pursue a joint PhD in Public Policy and Political Science (no surprise to us that pursuit of a single degree would not be enough for Laura).

Over the past two years, Laura has been the driving force behind this blog, authoring countless posts on all things related to New York and reform, from ethics in government, to campaign finance reform, from voting rights to redistricting and the budget.

In that time, she has also become expert in New York reform issues, co-authoring a report on the State Legislature, as well as a ground breaking law review article on Albany's failure to provide New Yorkers with legislative due process, and testifying at legislative hearings, among many other accomplishments.

Most importantly, as she learned more about New York, Laura became a true believer in the cause of reform, and her enthusiasm and interest inspired all of us to work harder.

No doubt, the loss for the Brennan Center and New York State is the University of Michigan's gain. We are confident that Laura will go on to do many great things. And we are equally confident that her replacement on the blog, John Patrick Travis -- who you'll be hearing more from in the coming days -- will bring his own enthusiasm, intelligence and creativity to stengthen our blog.

For today, however, we'll continue to feel a little sad that Laura will soon be gone. Thanks Laura for all that you have done for us in the last 24 months, and knock 'em dead in Michigan!

More Voices for a Better Overvote Procedure in New York

In the past week, editorial boards, public officials, and computer scientists have joined the Brennan Center in calling on the New York City and State Boards of Elections to refrain from using an unnecessarily confusing procedure for the handling of overvoted ballots that is likely to disenfranchise tens of thousands of voters.

A panel of leading computer scientists wrote to the Boards of Elections yesterday to emphasize that “[t]he most obvious solution to this problem is to set the voting machines to reject overvoted ballots… Because no software would be modified, testing of the change can be expected to be simple, straightforward and efficient, and to take no more than a day.” City Councilmember Margaret Chin also wrote to the State Board yesterday, asking for an explanation as to why they have “refused to implement this simple fix.”

Writing in another letter to the Boards of Elections today, chief election officials in jurisdictions across the country endorsed the automatic rejection of overvoted ballots, noting that this “better administrative practice…should not lead to long lines or confusion at polling places. To the contrary, by automatically rejecting overvotes, voters are immediately taken out of the voting line, provided with a new ballot, and given the opportunity to ensure that their intended choices are accurately recorded.”

In a July 5^th editorial, the New York Times called New York's current procedure “needlessly complicated.” This week, the Daily News demanded that this “dangerous glitch…must be fixed now,” and the Journal News concurred, saying that “it would be unacceptable to have even one vote go unaccounted.”

To read what others are saying about New York’s overvote procedure and to join the chorus of voices calling on the City and State Boards of Elections to implement an easy fix to the problem, click here.

UPDATE: State Senator Liz Krueger has also joined in calling on the State Board of Elections to change its procedure for handling overvotes. Click here to view her letter to the Board.

Closed-Door Budget Negotiations: Déjà Vu All Over Again

At this time last year, the State Senate had blown through the last scheduled day of session without finishing its legislative business for the year. The chamber, still in a state of post-coup deadlock, was unmoved by increasingly angry calls from the governor to convene in extraordinary session to pass the bills necessary to keep government entities afloat in the new fiscal year. Approval ratings for the legislature were at an all-time low, and for good reason.

Sound familiar?

Both chambers of the legislature may technically be functioning this go-round, but the rest of the scene looks all too familiar – missed deadlines, questionably effective attempts by the governor to spur the legislature to action, and even lower approval ratings.

This time, of course, legislative leaders and the governor are deadlocked over the budget (which is now three months overdue), not majority leadership of a chamber. But little else has changed. The public leaders’ meetings on the budget have been light on substantive conversation and heavy on finger-pointing. The real negotiations – the contents of which we are forced to glean from often vague comments to the press – are happening behind closed doors.

After several three-way closed-door negotiating sessions with the governor, Assembly Speaker Sheldon Silver and Senate Democratic Leader John Sampson decided to break with the governor over the weekend and forge a two-way budget deal. When asked what caused the breakdown, Speaker Silver was vague on the details:

“Obviously the governor called us, his staff, and briefed us on his version of a three-way deal, which was a number of things that didn’t affect the budget, that, you know, didn’t help us get there, and things that neither house wanted.”

It’s unclear precisely what elements Silver refers to here, and while details of the two-way deal have trickled out over the last day, the legislative leaders are doing little to bring the budget debate into daylight now that it is entirely within their control. Today, Senator Sampson told reporters asking about the budget deal that they were “conferencing it,” which is to say they are discussing it in another closed-door meeting, this one attended by the Senate Democratic conference. It’s difficult to say if the Assembly is even doing that much.

It is worth noting that the roots of last year’s coup could be traced in part to an opaque budget process that offered little opportunity for open and substantive debate. Apparently our lawmakers haven’t learned their lesson.

Brennan Center files Complaint Against State and City Boards

You may have seen the article in today's Times. The complaint as filed is here.

The Times does a decent job of explaining the issue. As we've blogged before, this is a big but very basic problem, with a simple solution.

The problem: the State and City Boards have setup the new machines so that they do not give voters adequate warning of “overvotes”– ballots that cannot be read in full because the machine reads the ballot as having too many votes for a particular contest. Instead of returning the ballot, as is done in many other jurisdictions, in New York the ballot will be retained, and a computer screen with present the voter with a confusing message that includes a green “cast” button. Voters are not told if they press the green button, their vote will not count.

The only other time these voting machines have been used in the same way in a major election -- same confusing message, ballot not automatically rejected (13 counties in Florida in 2008) -- they produced overvote rates almost 14 times higher than expected, with thousands of votes for the presidential contest rejected – in comparison to almost no votes rejected in the 36 counties that automatically returned the ballots. Evidence shows that African Americans and Latinos, in particular, were disproportionately impacted by the lack of overvote protection.

The solution: the State and City Board can fix this problem by checking a box in the setup files that would automatically reject overvoted ballots. Despite numerous attempts by the Brennan Center and other voting rights groups to make this change, they have not done so.

In today’s New York Times, New York State Election Board spokespersons took issue with the Brennan Center’s proposed fix, arguing that in order to reset the machines, it would take a months of testing and that they would have to re-program thousands of machines.

That's simply not true. Numerous sources, including the State Board, the voting machine vendor and independent computer scientists have confirmed to us in the last several months that requiring the machines to return overvote ballots requires only "checking a box" in the setup file for these systems. These machines were built to allow the City and State Board to do this at anytime. It will not cause delay to do the right thing.

How a Bill Becomes A Law

Via Andrew Sullivan comes this handy chart for how a bill becomes a law. What's striking, of course, is how many of the things listed in this chart do not apply in the New York State legislature. Under "Committee Work," we'd have to get rid of hearings devoted to the bill in almost all cases, of course, as well as "mark-up," "final reading," and "report." And then there's introduction of amendments, voting on amendments, public debate, confirmation from an independent budget office that "the bill adheres to spending and revenue constraints," "conference committees," etc., etc. How many bills in New York go through even a majority of the items listed on this chart?

Other States Provide Better Models for Ethics Oversight

It is the beginning of election season, and calls for ethics reform in New York State abound. Helping us to sort through this “Christmas in May” situation is a great pro bono law firm, Kaye Scholar. Associates Leah Kagan and Lindsay Moilanen, overseen by Partner Jim Herschlein, have been examining the structures and powers of ethics commissions in several states to give us a means of comparison in New York. We expect that in the coming months the project will serve as a trove of good ideas as reform proposals surface.

Most calls for reform from outside Albany include an end to the self-policing nature of oversight. Currently, separate ethics commissions are charged with oversight of the legislature and executive branch in New York State. The Legislative Ethics Commission is comprised of nine members, four of whom are legislators, with the remaining five members appointed by legislative leaders. The 13-member Commission on Public Integrity oversees statewide elected officials and lobbyists. Though both Commissions have the power to investigate, fine and refer extreme cases for further action, these are rare occurrences. Simply put, members of both Commissions owe their positions to the elected officials who appointed them.

All agree that what is needed is an atmosphere filled with powerful disincentives for corrupt behavior. And intuitively, self-policing ethics oversight would be the wrong message going forward. Yet publicly, elected officials express concern that a strong, effective ethics oversight body would be manipulated for political means, hindering real change to this structure.

In fact, preliminary research has shown that several states have removed oversight from the hands of legislators and given it instead to entities dominated by an independent majority. Spending a few minutes examining the territory of ethics oversight reveals that self-policing practices could be the poorest option going forward.

A few examples:

In Louisiana, a single ethics commission oversees the executive and legislative branches. The eleven-member commission is selected by the governor and legislature from a list of nominees put together by a nominating committee comprised of the presidents of eight of the state’s leading private universities.

In California, the Fair Political Practices Commission, established after a voter ballot initiative in the 1970’s, has five members, none of whom are appointed by the legislature. The five commissioners are selected by the Governor, Attorney General, Secretary of State and Comptroller, with not more than three members from the same political party.

In Washington State, separate ethics commissions oversee the legislature and executive branches. However, the Legislative Ethics Board consists of nine members, only four of whom are appointed by legislators. The remaining five are citizen members, four of whom are chosen by the governor from lists submitted by legislative caucuses, and the fifth elected by the other four citizen members.

In Alaska, legislative ethics are overseen by two separate entities, the Senate and House Subcommittees. These subcommittee consist of seven members each, two of whom are legislators, the remaining five public members are selected by the Chief Justice of the Alaska Supreme Court and ratified by two-third of the full membership of the Senate or House. The legislative members of these subcommittees cannot serve as chair or vice-chair of these committees.

In Connecticut, ethics enforcement for both the executive and legislative branches is overseen by the nine member Citizens Ethics Advisory Board. Though legislative leaders appoint six of the nine members, two of the six are appointed after being nominated by “a citizens group with an interest in ethical government.” To further minimize charges of politically motivated enforcement actions, complaints are submitted to a randomly selected judge trial referee for findings of probably cause. The judge trial referee is selected by the judicial branch in Connecticut from a list of retired judges who have volunteered for this duty. After a finding of probably cause, a new judge trial referee is selected to preside at the public hearing.

We encourage reform advocates to consider adopting one or some combination of the above examples, or to engineer a new structure. And also, to stay tuned to these empirical comparisons.

Goodbye and Thanks, Jay

We were saddened to learn this morning that Jay Gallagher, veteran of the Capitol Press Corps in Albany, passed away last night after a difficult struggle with pancreatic cancer. Right up until the end, Jay continued to serve our state by asking lawmakers tough questions and opening state government to the people. Throughout his illness, Jay continued to share his incisive commentary on state politics through a League of Women Voters blog, and less than three weeks ago, Jay served as the voice of voters and good government advocates at Albany on the Record.

Jay’s love of New York was evident in everything that he did, and over his 25 years of covering state government, he made our state better in ways both large and small. He will be missed. To read the moving eulogy released by Jay’s daughters this morning, click here.

On Cuomo's Reform Agenda

Accompanying the long-awaited announcement of his candidacy for Governor, Attorney General Andrew Cuomo released a 224-page “New NY Agenda” that outlines the issue areas on which he will focus during the campaign and – he hopes – in office.

The chapter on reforming state government covers many of the issues the Brennan Center and its allies have been pushing for years. The agenda includes independent ethics oversight, a pay to play ban, disclosure of lawmakers’ outside income, an independent redistricting commission, reforming the member item grant process, and an overhaul of campaign finance laws that includes public financing, a reduction in contribution limits, limits on soft money (including narrowing the so-called “housekeeping accounts” loophole), and increased enforcement.

Cuomo apparently intends to tour the state asking other candidates to sign on to this agenda, but this effort has already met with some resistance. Assembly Speaker Sheldon Silver, who would be required under Cuomo’s plan to disclose information about his clients that he has previously kept secret, said he would not be signing on, asserting that pledges “never really mean much.”

In this sense, Silver may be right: pledges only mean something if they are followed by action. The true measure of Cuomo's commitment to reform will be the work he does to make his ambitious plans come to fruition if he is elected.

But this agenda is a good first step, and we hope that other candidates similarly commit themselves to cleaning up state government. As Brennan Center Democracy Program Director Susan Liss reminded us in an excellent Daily News editorial this weekend, lawmakers who don’t take steps to reform our broken state government may finally face the populist wrath from which they have so far been sheltered.

New Yorkers Take Action to Restore Voting Rights

Cross-posted from brennancenter.org

The effort to restore voting rights in New York is gaining momentum. Today, over 100 New Yorkers sent postcards to their legislators and Governor Paterson urging them to restore the right to vote to people in New York who are on parole and probation.

New York law disenfranchises individuals in prison or on parole. As we have mentioned in previous posts, this law has a stark impact on people of color. A new Brennan Center report, titled Jim Crow in New York, confirms that the current criminal disenfranchisement law traces back to a century-long effort to keep African-American citizens out of the voting booth. As a result, over 80% of those denied the right to vote in the Empire State are African-American or Latino.

And New Yorkers are finally calling on our state leaders to end this injustice.



This writing campaign stems from a lively public conversation held at the Schomburg Center for Research in Black Culture on this very issue. The discussion included Rev. Dr. Calvin O. Butts III from the Abyssinian Baptist Church of the City of New York, Hazel Dukes from the NAACP New York State Conference, Glenn Martin from the Fortune Society, and Columbia Law Professor Theodore Shaw.

Hopefully Albany will heed its constituents’ demands. There are several bills pending in both the Assembly and the Senate that would restore the right to vote to people with a prior criminal conviction.

Among them is legislation introduced by Assemblyman O’Donnell and Senator Thompson that restores voting rights to people on parole. The bills have been referred to the Assembly Committee on Election Law and the Senate Committee on Elections.

Senator Montgomery and Assemblyman Wright have also introduced the Voting Rights Notification and Registration Act that would help eliminate some of the confusion about who is eligible to vote. The bill would require the Department of Corrections and the Board of Parole to provide information to individuals about their voting rights once they regain eligibility. The bill passed the full Assembly in June 2009 and is currently pending in the Senate Elections Committee. (The Brennan Center testified in favor of this bill in April 2009). Similar bills have passed the Assembly twice before.

Contact us to request postcards to tell your elected officials that it is time to restore voting rights to people with prior convictions.

Setting the Record Straight on New York Uprising

The Brennan Center never provides material support to efforts to influence the outcome of elections. An article in last week's Legislative Gazette incorrectly stated that New York Uprising, which has successfully obtained pledges from gubernatorial candidates regarding redistricting reforms, had received support from the Brennan Center and other good government groups. The Brennan Center has studied redistricting for a decade: our extensive materials are available on our website free of charge, our attorneys regularly speak with groups of all kinds as part of our education and outreach about this issue and we often comment on various proposals for reform. Deeply committed to reform of New York’s state government, we do not oppose or support any specific candidates, and, by extension, candidate pledges.

Making it Harder for the Next Joe Bruno

We’ve just learned that former Senate Majority Leader Joe Bruno was sentenced to two years in prison for violations of the state’s honest services law.

As we’ve written before, one of the most disturbing things about the Bruno case is that much of the unethical behavior of which Bruno is accused is completely permissible under New York State’s notoriously weak ethics laws.

While the legislature’s major ethics overhaul was killed by the governor’s veto pen earlier this year, smaller reform measures have made strides toward closing some of the most egregious loopholes in the state’s laws that govern public officials’ behavior. A bill signed in February made it illegal for public officials to use state resources for private pursuits for which they get money, and a new bill, called the Public Corruption Prevention and Enforcement Act, would create a stricter definition of public services fraud and increase the penalties for corruption.

At yesterday’s Albany on the Record event, Governor Paterson said he was continuing to work with the legislature to achieve the major overhaul that the state’s ethics laws so badly need. Of the bill he vetoed spring, the Governor said that an ethics bill shouldn’t just be responsive to a particular event (like the Bruno trial), but rather should be a holistic and forward-thinking solution.

Liveblogging Albany on the Record

Join us at 11am tomorrow, May 5 for live commentary from Albany on the Record!

Skelos' Links to Lobbyists and Other Matters Worth Discussing with Legislative Leaders

The New York Post had a story this weekend about the lobbying group, Empire Government Strategies (EGS), funded by Senate Minority Leader Den Skelos’ law firm. According to EGS’ chairman, the lobbying firm is ‘operationally independent’ of the law firm from which Skelos draws a paycheck, but the association may be a little too close for comfort.

Skelos – like his counterparts in the majority leadership of both chambers – is not required by current state law to disclose his clients at his law firm, so it’s difficult to know if anyone with an interest in influencing state policy has a direct impact on his income. At the very least, the Post points out, Skelos “still collects a paycheck from a law firm with a vested interest in the lobbyist outfit’s success.”

New Yorkers will have the opportunity to ask Skelos about this association and other issues related to government reform at this Wednesday’s Albany on the Record event. Skelos will be joined by Senator Sampson, Assemblymen Silver and Kolb, and Comptroller DiNapoli. Yours truly will be live blogging the event.

Albany on the Record

At a press conference today in Albany, another non-partisan group working for more open and accountable government was launched. "Reinvent Albany" is looking to shake things up in our state capitol. They've already announced their first event, Albany on the Record, which will be held in Albany on May 5th. The purpose of the event is to get the state’s top elected officials to tell New Yorkers how they will restore the public’s trust, and put them on the record for what reforms they will fight for during the next legislative session. Albany on the Record will be webcast live from Empire State Plaza. The Brennan Center, Citizens Union, Common Cause, the League of Women Voters, and NYPIRG are joining Reinvent Albany in sponsoring this event.

CORRECTION: When we initially posted this item, we erroneously omitted our good friends at the League of Women Voters of New York. We sincerely apologize for the unintentional oversight.

Brennan Center Notifies Department of Justice That New York Voting Changes Were Not Precleared

We've blogged before about serious concerns the Brennan Center and other New York voting rights groups had about policies adopted by the State Board for New York's new electronic voting machines, which will be used statewide for the first time this September. After extensive research, we have concluded that these policies violate New York State law and should have been precleared with the Department of Justice, pursuant to Section 5 of the Voting Rights Act. This apparently was not done. We have alerted the Department of Justice, and the New York State and City Boards to our findings. A copy of the letter detailing our findings, and a press release can be found here and here.

Albany Lawmakers Propose Shareholder Rights As Citizens United Response

Last Week, New York State Sen. Daniel Squadron, D-Brooklyn/Manhattan, and Assemblyman Rory Lancman, D-Queens, proposed a bill which would require shareholder approval before a New York corporation could spend in politics. The bill also requires more transparency by mandating that companies tell shareholders of their past political spending. The new bill mirrors language proposed by the Brennan Center’s Ciara Torres-Spelliscy in her report, “Corporate Campaign Spending: Giving Shareholders A Voice” which encourages Congress to make similar changes at the federal level. Congress has a similar bill called the Shareholder Protection Act (H.R. 4790). If Congress fails to act, shareholders will need protections from state laws like this New York State bill. The Senate will be holding hearings on this and other election reform bills this week.

A Better Budget?

Today, the Senate democrats unveiled a series of proposals to reform the state’s budget process, which this year has dragged on a week beyond the mandated deadline with no apparent end in sight.

Most of the proposals – which are outlined in six separate bills – focus on better long-term financial planning and external oversight of the budget designed to eliminate waste. One bill would move the budget deadline back to May 31, following the recommendations made by the Senate’s Select Committee on Budget and Tax Reform in a report also released today.

While we have not yet analyzed the legislation in detail, we’re glad to see the Senate thinking constructively about ways to reform the state’s broken budget process and we hope that the Assembly also seriously considers reform. If the Senate does not have the cooperation of the lower chamber, it should at the very least demonstrate its commitment to a better budget by continuing to build upon the steps it has taken toward greater transparency. New Yorkers certainly deserve to have their tax dollars managed more wisely, but they also have a right to be privy to the decisions made about how their money is to be spent.

Member Item Distribution Still "Grotesquely Unfair"

Today, our friends at NYPIRG released their analysis of the legislature’s member items for the current fiscal year.

The bottom line is that the funds are still distributed inequitably. In the Assembly, a whopping 81 percent of districts receive less than the average disbursement, which means that a small number of members – usually those in or close to the leadership - receive a disproportionately large amount of the funds. In the Senate, fewer than one third of the chamber’s members control more than 75 percent of member item funds.

While many member items fund good causes in members’ home districts, they can also be a tool for chamber leadership to retain control over members and another pot of money into which corrupt legislators can dip – as was the case with Assemblyman Brian McLaughlin, who collected $95,000 from a little league that was included in his member item distribution.

Reform advocates (including NYPIRG and the Brennan Center) support a measure that would entitle members to the same amount of member item funding and place tighter controls on conflicts of interest.

Correction: A Different Reading of Senate Rule VII § 3(e)

Andrew Stengel, Senior Adviser for Government Reform for the Senate Democrats and loyal reader of our blog, contacted us today to give us a different interpretation of Senate Rule VII § 3(e) than we provided in a blog post last week in connection with the Farmworkers Rights Bill.

The full rule is below:

No motion for committee consideration shall be in order after the first Monday in May. The sponsor of any bill may file, through the Journal clerk, a motion for committee consideration forty-five days after the bill has been referred to such committee. Once a motion for committee consideration is filed, the chair of the committee shall place the bill on a committee agenda and schedule a vote within forty-five days. In the case of a bill that is referred to a standing committee having secondary reference, the bill shall be considered within the next two committee meetings [emphasis added].

We interpreted the last clause of this rule to mean that in the case of bills referred to a committee of secondary reference, as the farmworkers bill was, the committee must consider the bill within two meetings once a motion for committee consideration has been filed.

Andrew tells us that the Senate has a different interpretation. He says that this clause only applies to bills that passed out of the committee of first reference with a motion for committee consideration - so the sponsor does not have to wait to file a second motion for committee consideration or wait 45 days for that motion to be honored once it hits the second committee. If the motion for committee consideration is filed for the first time once a bill is in a committee of secondary reference, the chair still has 45 days to consider the bill. Going forward, this reading will be extremely be useful to those attempting to understand how the rules work and how best to decrease the likelihood that leadership can use committee referral to kill a bill.

This seems to be good news in the sense that leadership should have less power to silently kill a bill by referring it to a new committee and having the clock for a vote start all over again, but it's less clear how helpful it will be for proponents of the bill currently in question. Because the motion for committee consideration on the farmworkers bill wasn't filed until the bill was already in the committee of secondary reference, it may have to wait a full 45 days for consideration, rather than two meetings as we and the bill's supporters originally thought.

The main lesson for sponsors of bills (and their supporters) seems to be that if you want to get your bill to the floor quickly, make sure you file a motion for committee consideration as soon as possible.

New Senate Rules in Action

Just a quick update on the farmworker’s rights bill battle that we blogged about last week:

On Monday, the bill’s sponsor, Senator Onorato, filed a motion for committee consideration, a new procedure that was enacted as a part of the Senate’s post-coup rules reform.

Now, according to Senate Rule VII § 3(e), the bill must receive consideration within the next two committee meetings. The Agriculture Committee’s normal meeting time is 9:30 on Tuesday mornings, but the committee does not appear to have posted a meeting agenda for today on the Senate’s website, so it seems unlikely that the two-meeting timeline will directly translate to two weeks.

In Frustration, An Opportunity to Realize Reform

The long-anticipated Farmworkers Rights Bill appears to be waylaid after Senator Darrel Aubertine requested that the bill receive secondary reference to the Agriculture Committee, which he chairs. While the committee held a hearing on the bill on Monday, the bill did not appear on the committee’s agenda this week, and advocates fear that Aubertine is deliberately stalling on the bill.

The good news for the bill’s proponents, however, is that the new Senate rules allow them some options. Forty-five days after a bill has been referred to a committee (by my count, today is day 41) the sponsor may file a “motion for committee consideration” that compels a vote on the bill within two committee meetings (this short timeline is required under the rules for bills on second referral; if Agriculture were the committee of first referral, the chair would have 45 days to comply with the request).

If a committee fails to act on a bill within 45 days, the sponsor is also able to file a petition requesting that a bill be moved directly to the third reading calendar, circumventing a committee vote altogether. This motion, called a “petition for consideration,” will be honored if three fifths of the chamber’s members sign on.

As we’ve written before, the Senate’s improved rules mean nothing unless members take advantage of them. We don’t take a position on the farmworkers rights bill, but we do encourage frustrated advocates on all sides of the political spectrum to take advantage of these hard-fought new rules and hold Senate leadership accountable for their promises of reform.

State Police Redux, Redux

The “why” of the Paterson administration’s possible improper use of State Police remains a real head-scratcher, particularly on the heels of what seemed, so recently, to be an impressionable event –- Spitzer’s resignation on the heels of an investigation for improperly using the State Police.

One clear thing is that, if the governor had a hands-on role in the misuse of state police in this matter or in covering it up, it is an impeachable offense. Just take a look at the articles of impeachment filed against President Nixon before he fled office. But even if the Governor did not have any direct involvement in this matter or make any attempt to cover it up, it is up to him, as it was with Spitzer, to make certain that no member of his staff thinks that the state police are there to serve any of their political or personal needs. For that failure he is already paying a political price.

On Monday, news outlets reported that several pieces of legislation have been introduced to address this issue. One proposal that seems unnecessary (and is probably just political) creates a special commission “to investigate systemic misconduct, abuse of power and political interference” relating to the state police. The legislature has the power to conduct such an inquiry itself, and it should. Such oversight is their constitutional right and duty. And the improper use of state police by two successive governors should certainly signal that something is wrong.

In 1975 the Assembly conducted just such an investigation. Reports that the state police had collected “non criminal” (their words) files on hundreds of thousands of New Yorkers and others over many years resulted in the creation of a Task Force under the Government Operations Committee. In 1977 it issued its report. Among the Task Force’s most important findings was that police indiscretions largely resulted from “a lack of clear guidance from the Governor and the Legislature on what were proper intelligence activities.” One of its key recommendations was for “Legislation to provide for oversight and greater accountability is needed.” Another recommendation was ongoing oversight of the police.

Of course, no one followed any of them.

Full Disclosure: Eric Lane was co-counsel to the Task Force referred to in this posting. His article on this experience can be found here.

With the Governor's Role in Dispute, It's Time to Look Critically at '3 Men in a Room'

The heated debate surrounding Governor Paterson’s political future has spawned a subsidiary discussion about his role in the upcoming budget negotiations.

The budget, which is due April 1st, is typically negotiated between the Assembly Speaker, the Senate Majority Leader, and the Governor and behind closed doors. In light of last week’s events, Assembly Speaker Sheldon Silver suggested that Lieutenant Governor Ravitch should participate in these budget talks. Based on reporting in the Daily News, Senator Eric Adams took this to be a suggestion that Governor Paterson shouldn't have a role in the talks (Silver disputes this is what he meant). The Senator called such a suggestion offensive.

In years past, the results of budget negotiations have come to light at the last minute, and rank-and-file members received thousands of pages of budget bills only days before the deadline and the scheduled vote, giving them little time to read the bills and no opportunity to suggest substantive changes. Last year’s budget process was, by many accounts, the most secretive in decades.

So here’s a different idea: rather than bickering about who should participate in the closed-door budget talks, why not do away with them altogether? Why not debate and revise the budget in the open forum of the legislative chambers and then reconcile the differences in open conference committees as required by the Budget Reform Act of 2007? The Senate is already taking steps to open up the budget process, but all parties could go further to provide the public with access to the conversations that ultimately determine the state’s fiscal future.

And Another One

Following on the heels of Larry’s post from yesterday about Jay Gallagher’s new blog, we’re happy to call your attention to yet another new voice on the Albany blog scene. Reboot NY, a new PAC dedicated to reforming the state senate, has a blog chronicling the chamber’s dysfunction. We don’t take a stance on the individual legislators and candidates who the group supports and opposes, but we can get behind its founders when they say that reform has to be the top priority for voters and legislators alike.

Better Late . . . .

We're a little late to noting this, but Jay Gallagher, one of the most knowledgable Albany reporters around, has a new blog with the League of Women Voters. No surprise -- it's great stuff. Check it out.