Will A Divided Senate Chamber Be Good For Reform?

The New York Times says it looks as though the State Senate will be split, 31-31 between Democrats and Republicans. Could this be good for structural reform of the chamber? There is at least a plausible case to be made that a chamber split exactly in half could help make the Senate the more accountable, transparent and deliberative body we at the Brennan Center have been calling for over the last 6-plus years. Rather than turn to one or two leaders to work out deals with the Assembly Speaker and Governor, and to develop policy entirely behind conference doors, an evenly divided Senate might be forced to debate and compromise in public. Actual substantive work could be done through committees and during committee meetings.

While it's true that things didn't work out too well last session, when the chamber was also closely divided, that's in large part because the old model for the chamber stayed in place. Democratic members defected, and then defected back, but the idea that nearly all of the substantive work and decisions should be done behind closed doors largely remained -- the only questions was which set of leaders held the reins (though certainly not entirely -- credit should be given where it is due, and though New Yorkers could be forgiven for missing it in between the coups and corruption scandals, the Senate did take some important, if small steps toward greater transparency, deliberation, and accountability).

There is the possibility that this time around, the parties will agree that because it all can't get done behind closed doors ahead of time, creating a legislature that works -- where individual members propose, debate and develop ideas in committees, and where compromise is a necessary part of passing any legislation -- will be in everyone's best interest. We can hope, anyway.

Contradictory Instructions -- City Board’s Bizarre Reasoning

Two weeks ago, ReformNY pointed out a mistake on the instructions on the New York City Ballot regarding which oval voters were supposed to fill in. According to the City Board there was not enough time to reprint all the ballots and they would instead post a fact sheet with more clear instructions in the privacy booth.

This, we believed at the time, was an improvement and would make the process less confusing for voters. However, Friday afternoon we learned that a previous flier containing the incorrect instructions would remain in the privacy booth.

So now we have a situation where there will be two sets of instructions in the privacy booth, where the most important instructions actually contradict each other.

The reasoning for this bizarre choice? The City Board claims they are required by state law to keep the wrong set of instructions posted in the privacy booth.

We at the Brennan Center certainly can’t find any provision in New York State Election Law that requires the City Board to post inaccurate and contradictory information in the privacy booth.

While it is true that the first set of instructions was provided by the State Board and approved by the Department of Justice, they were written and approved before the City Board created a ballot that was inconsistent with the provided instructions.

We have a hard time believing that anyone would object to changing inaccurate instructions on the fact sheets in the privacy booths. In fact, according to this document from the State Board, instruction (2), which tells voters which oval to fill in, gives local boards the option of personalizing the wording depending on where the oval happens to be located on a particular ballot.

The City Board was informed of the problem nearly two weeks before Election Day, leaving plenty of time to contact the SBOE and DOJ to ask if there were any objections to removing the old instructions. However, as far as we know, they simply didn’t bother to ask. As Neal Rosenstein of NYPIRG has correctly pointed out, this is an example of the City bureaucracy simply being inactive when they should have been proactive.

Have you read it yet?

It is remarkably well-written, and it is sinister, sad and comical all at once. It’s the New York State Inspector General’s 308 page report (yes, we have a few pages in the middle to go over more carefully but we are almost done) on the selection of Aqueduct Entertainment Group to operate a slot machine destination at Aqueduct Racetrack in Queens.

It is sinister because so many people claimed their right against self-incrimination, leaving the Inspector General to weed through a year’s worth of emails and lunch receipts to find answers, sad because it is clear that no one is coming to the rescue and comical in the you-can’t-make-this-stuff-up kind of way (a quote from one lobbyist, when asked whether he had heard from a certain politician about the bidding: “No. He did however ask me for campaign dough today.” (p. 102)).

It is a remarkable piece of research, a richly detailed portrait of Albany’s inner workings and, once digested, discussed and distilled, we hope it will be a powerful lever for strong campaign finance reforms and real ethics enforcement and oversight of the legislature.

In Bid for Casino, Report Claims State Senators Showed Favoritism

The New York Times ran this story yesterday on a report issued by the state inspector general, detailing a controversial backroom deal struck between the bidders for New York’s first casino, and State Senate leaders. According the report, State Senate leaders showed favoritism in the bid over who would run nearly 4,500 slot machines at a Queens race track, towards the bidder Aqueduct Entertainment Group – which had donated funds to the state’s Democratic Senate Campaign Committee. Due to possible violation of laws, the inspector general’s office is referring its findings to federal and state prosecutors as well as the Legislative Ethics Committee.

The governor’s office is also faulted in the report for having initially supported Aqueduct’s bid for the casino, before reversing their position in March when another group was ultimately selected for the contract.

These ethical violations are just another example of what happens when contracts are negotiated behind closed doors, rather than in an open and transparent way. As we have blogged before regarding ethics reform, these negotiations must be part of a public discussion and not a product of backroom deals.

Incorrect Ballot Instructions: a Statewide Problem?

We are concerned that the ballot instruction error for New York City we blogged about yesterday, which was covered by WNYC this morning, may very well be a statewide problem for all jurisdictions who have designed their ballot with ovals appearing below a candidate’s name.

The provision of New York State Election Law § 7-106 which mandates how the instructions are to be printed on the ballot, reads:

"(2) To vote for a candidate whose name is printed on this ballot fill in the (insert oval or square, as applicable) above or next to the name of the candidate."

Furthermore, we have been told that the flawed instruction language included in this document will be posted in privacy booths statewide, telling voters to fill in the oval “above or next to” candidate’s name.

We have yet to receive a response from the letter we sent yesterday. We have been told that these instructions will be posted in every privacy booth across New York City. While these written instructions tell voters to darken the oval next to their choice, a visual image of an arrow shows voters that to correctly mark their ballot they must fill in the oval below the candidate’s name. That's definitely an improvement over the completely inaccurate ballot instructions we detailed yesterday.

We will update our readers with any further developments.

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."