BMDs Are (Finally) in the City

A mailing (to the left) from the New York City Board of Elections earlier this week notified voters that ballot marking devices (BMDs) will be available to voters who need assistance in every precinct. This long overdue development was mandated by the Help America Vote Act (HAVA) of 2002.

Six years and one lawsuit by the U.S. Department of Justice later, New York remains the least complaint in the nation with HAVA. Just when will the mechanical lever machines be replaced? According to Bo Lipari, the 2009 deadline is now slipping. New voting machines apparently are failing rigorous testing, which our colleague Larry Norden agrees with Bo is a good thing. Still, the state is required (once again) by law to install new machines in 2009.

Court to Board of Elections: "Weak."

Last week the Second Circuit Court of Appeals overturned the New York State Board of Elections' rule barring the use of absentee ballots in party county committee races. Under the law, absentee ballots were permissible in all other races, and were not allowed in party county committee races because they allegedly take too long to count. The decision calls the Board's rationale "flimsy," especially in light of the fact that local boards of election have up to nine days to complete their canvass and certify results. The court deemed the Board's argument so "exceptionally and extraordinarily weak" that it could not justify even an admittedly minor burden on First Amendment rights.

A small victory, perhaps, but it's nice to see folks take notice of the Board of Elections' often baffling logic.

Elks Lodge Parking Lot Spared the Budget Axe

By now we've all heard about the $427 million in budget cuts the legislature passed last week, but you may have missed this article in the New York Daily News about the word on the street that member items won't take much of a hit.

While the approved cuts include a $50 million reduction in member items, Assembly Speaker Sheldon Silver was quoted as telling his members that they wouldn't have to break any promises of cash for their constituents. We thought it might be an appropriate moment, then, to review a few highlights from the 2008-09 member items, culled from NY PIRG's member item database:

• $750,000 in the Assembly for "activities including fashion industry modernization" in the garment district of Manhattan
• $7,500 in the Assembly to improve the parking lot of the Catskills Elks Lodge
• $50,000 in the Senate for a larger deck and boathouse for a YMCA summer camp in Warren County
• $100,000 in the Senate for the Long Island Contractors Association's public outreach efforts

The list goes on (and on; there are about 5000 member items in each house for the 2008-09 fiscal year). And as we've blogged before, member items are wildly skewed toward the majority in both houses. If member items do take a cut under the new budget plan, we'll be anxious to see who wins out in the budgetary battle between the contractors and the little league.

The Writing on the Revolving Door

Our colleague Andrew Stengel has an op-ed in the Albany Times Union this morning decrying the ethics crisis in the legislature exemplified by Bruno's quick transition from Senate majority leader to lobbyist this summer. Andrew and Susan Lerner of Common Cause argue that the state's Legislative Ethics Commission has neither the will nor the muscle to bring real reform to Albany.

Our Interest in A Recent Paterson Veto, and New York's Really Bad Laws on Ballot Design

I've been meaning to write about this for some time, but got a little side tracked in our national election-related work. A few weeks ago, a lot of ink was devoted to Governor Paterson's 34 vetoes. Not surprisingly (and quite properly) most of that attention was focused on the price tag of the various bills he vetoed.

I had a particular interest in one of those 34 bills that didn't have much of a price tag -- Senate Bill 5162. That bill would have required that county boards of election submit ballots to the State Board of Elections for review and approval whenever any state-wide candidate, proposed amendment to the constitution or other question provided by law to be submitted to a statewide vote is printed on a ballot.

Why was I interested in this bill? Because I recently co-authored a ballot design report that found New York has among the worst ballot design laws in the country -- in particular, the requirements for a full-face paper ballot, the requirement to include a party name and emblem next to every candidate name, requirements to use all capital letters instead of more readable mixed-case letters, and the unusually complicated, jargon-filled instructions provide a text-book example of a state election code that makes designing usable ballots particularly difficult.

New York hasn't had the high-profile ballot design debacles that other states, like California, Florida, Wisconsin and Ohio, have recently had (see the report if you want to look at how dramatically these debacles have affected high profile elections -- there are an astounding number of examples from just the past decade). But if things don't change, New York will eventually have the bad luck of so many other states. All it takes is a close race. And, as we noted in the report, "as New York makes its transition from lever machines to optical scan systems [next year], the problems caused by [these bad laws] are likely to become more apparent."

The reason I was so interested in Senate Bill 5162 was that it seemed to institute one of our recommendations: namely that State Boards review county-designed ballots (imagine how different history might have been if someone in the Florida Secretary of State's office had reviewed the Palm Beach butterfly ballot and told them that confusing design was unacceptable). Unfortunately, the bill seemed to have some major flaws: it didn't impose a deadline on the State Board for approving or rejecting ballots, and it didn't say what would happen if the bipartisan board became deadlocked and failed to act on a particular ballot.

We were encouraged by the Governor's veto message. He recognized the problems with the bill and made this point:

Poor ballot design remains an issue that often leads to disenfranchisement of voters. The inconsistent placement of candidate names on the ballot face may cause voter confusion and increased error rates. According to a July 2008 report entitled "Better Ballots," by the Brennan Center for Justice, poor ballot design frustrates voters, undermines confidence in the electoral process, and contributes to related Election Day problems. In fact, one state-level recommendation in the report is to have a state election official review local county ballot designs... I encourage the sponsors to work with my office to craft legislation that will help prevent voter confusion in a manner that considers the practical effects on election administration.

We hope the legislature will take him up on this offer. New York's election code makes designing a usable ballot far too difficult. That will have major consequences on our elections as we move from lever machines to paper ballots.

Say It Ain't So, Joe

Joe Bruno has registered as a lobbyist, Capitol Confidential reports.

Is There A Majority Party in the Senate?

Joseph Bruno’s resignation continues to have an impact on the New York Senate -- Senate Republicans now have only 31 votes, putting the majority caucus below the 32 votes previously required to pass legislation. In Bruno’s absence, are fewer votes needed to pass a bill by majority vote?

The New York State Constitution implies that the passage of a bill requires a majority of the number of members elected to each chamber:

…nor shall any bill be passed or become a law, except by the assent of a majority of the members elected to each branch of the legislature.

The National Council of State Legislatures recently took note of this potential problem. Few states are much clearer on the matter, but the Louisiana Supreme Court addressed the issue in 2005 when two state senators filed a petition against the President and Parliamentarian of the Louisiana Senate who had asserted that fewer votes were required for passage in light of two vacancies in the state senate. The Louisiana court’s decision may not bode well for New York Republicans:

“Members elected” and “elected members” in constitutional provisions requiring majority or super-majority of members of senate to pass bills or constitute quorum mean the entire membership authorized to be elected to each house, i.e., 39, not the elected, seated, and sworn members on the legislative day on which a vote is taken; thus, senate vacancies have no effect on counting of votes.

If votes are counted the same way in New York, things could really get interesting. We’ve blogged before about the impact of a more narrowly divided Senate under Skelos’ leadership – turns out that Republican fears about losing the majority may come to fruition well before Election Day.

Good News: More Failures in New York

Bo Lipari notes that New York's new voting machines keep failing during certification testing, and that this is a good thing. Here's why he thinks so. We agree that rigorous testing is a good thing -- and that it's better to find out about problems now then on Election Day.

Let's just hope the vendors get their acts together in time for New York to use its new voting machines by 2009, as it is required to do by law.

AG Gives Senator's Fridge Cold Shoulder

Generally speaking I'm a fan of increased oversight, especially in the case of member items.

This spring Attorney General Cuomo proclaimed that he would question the nearly $170 million of grants that come from state funds, in part to ensure that are no conflicts of interests between the recipient groups and the legislators.

As reported by Newsday's Michael Gormley, the first batch of rejected grants are posted to the attorney general's Project Sunlight. The nixed member items include $5,000 for a walk-in fridge for an Elks Lodge in Massapequa submitted by Long Island state Senator Charles Fuschillo due to "insufficient information." Other items were rejected due to constitutional or statuary concerns, or for lack of explanation of conflict of interest.

Transparency Site Makes Resource Disparity Crystal-Clear

We don't often find ourselves on the same side of the aisle as the folks over at the Manhattan Institute, but the institute's new transparency website, SeeThroughNY, is illuminating to say the least. The site allows users to look through information on state government spending -- and it isn't pretty. A quick comparison of two rank-and-file members of the Senate who were elected in the same year shows that the majority member spent more than double the amount spent by the minority member on operations, personnel, mail, and travel.

The site has been so busy in its first 24 hours that it's still moving a little slowly - a story on WNYC this morning suggests that the bulk of the traffic is from state employees checking out their peers' salaries. Bad news, perhaps, for morale amongst minority staffers.

Technical difficulties

The New York State Board of Elections has fallen even further behind in its already-belated attempts to comply with the Help America Vote Act (HAVA).

This excerpt from the Board’s June 25^th status report to the judge overseeing the court-ordered testing and implementation of new voting machines says it all:

“In the July 24^th weekly status meeting SysTest announced that the vendors were not ready for testing at this point in time due to various issues, among them: documentation issues, testing machines supplied which did not function, lacked harddrives and or USB ports and therefore could not be tested. As of July 24, 2008 the timeline allowed only 16 days for the run [of] the record test by SysTest and when the Sequoia software was loaded up for a test pass, it crashed.”

Due to these challenges, SysTest, the independent contractor hired to test the machines, has reevaluated its testing timeline and now projects that it will not meet the October 1^st, 2008 deadline for testing completion.

Who’s to blame here? We’re sure there is blame to go around, but missing hard drives and USB ports seem like pretty big oversights on the part of the manufacturers of the machines, ES&S and Sequoia. Here’s to hoping that the remainder of the testing process doesn’t get rushed along – We’ll have enough to worry about on election day without a bunch of voting machines that can’t be turned on.

You Know We're In Trouble When Congress Does It Better

Politico has a piece today exploring the wide world of congressional office expenditures, from a few hundred dollars spent on a specialty cleaning service, to a few thousand for flat screen TVs, to over a hundred thousand spent on constituent mailings.

This arguably unnecessary spending may make your blood boil, but we would note this paragraph:

For 2008, the House Administration Committee allocated each lawmaker a standard budget of $874,951. But members get an additional amount that’s tied to the distance between Washington and the farthest point in their districts — as measured on a Rand McNally map — and the relative cost of real estate back home.

Makes sense, right? All members get the same base allocation, plus travel expenses based on distance, plus an allocation for rent based on costs in the member's home district.

Contrast that with New York's legislator allocations based on partisan affiliation and loyalty to party leadership. The result of New York's inequitable system is very simple: if you and your neighbors choose to elect a maverick or a member of the minority party, your representative will have less staff and resources to look out for your interests and provide constituent services to your district.

New Yorkers should demand basic fairness in allocation of legislative resources, which, after all, come out of the taxpayer pool we all contribute to.

Day Four: Bruno Rides the Revolving Door

Ex-Majority Leader Joe Bruno took a job--where else?!--with CMS Consulting Services, which does business with a variety of state offices and agencies like the attorney general, comptroller, it was widely reported today. Never has it been cleared that there needs to ban on legislators on lobbying their former colleagues for an extended time period.

As the New York Times' Jeremy Peters wrote today: "CMA drew some scrutiny this year after it hired Robert Scott Gaddy, a former adviser to Assemblyman David F. Gantt of Rochester, as a lobbyist. Mr. Gantt, the chairman of the Assembly Transportation Committee, had long opposed traffic cameras as too intrusive, yet he introduced a bill that would allow cities and towns across the state to install them and require the kind of technology that CMA sells. Currently, only New York City is allowed to use such red-light cameras."

In Congress, the "revolving-door ban" prevents Senators and aides from lobbying the Congress for two years after they leave the Hill, and just one year for House departures. Ex-Governor Spitzer signed an executive order--on "day one" in 2007-- that required a two-year window between the time state employees depart their jobs and when they are allowed to lobby any state agency. (That doesn't apply to campaign workers.) New York City employees are barred from lobbying their former colleagues for a year after leaving public service.

Unfortunately and quite shamefully, no such bans exists for members of the state legislature.

50% of Machines Are Flawed? We Hate to Say We Told You So

Purchasing voting machines that have never been used before in the United States? Could that be a problem for New York? Could this have been been predicted? Um, well, yes!

Golisano II: The Unauthorized Multi-Candidate Political Committee

The Daily News' Liz Benjamin reports that Tm Golisano's PAC has become an unauthorized multi-candidate political committee, still acting independently of candidates and still with $5,000,0000 in the bank. The issue may have been the $150,000 individual contribution limit to a PAC.

$5 Million to be Spent on Albany Races

The recent news that part-time GOP gubernatorial candidate and full-time billionaire Tom Golisano will spend $5 million to fund a political action committee to support those who share his vision of reform left some observers confused about the state's contribution and expenditure limits. Golisano lawyer Henry Berger boasted they can spend whatever they want to Azi Paybarah of the Observer. Is that true? Well, yes, and New York notoriously lax campaign finance laws aren't to blame.

Brennan Center counsel Ciara Torres-Spelliscy notes that if Golisano is making "independent expenditures," they in fact can be unlimited under his right to free speech. That's the result of the landmark 1976 Supreme Court decision Buckley v. Valeo, which was reaffirmed by the court 20 years later in Colorado Republican Federal Campaign Committee v. Federal Election Commission. But in order to be "independent expenditures" Golisano may not coordinate his spending in any way with a candidate or party. If he crosses that line, the spending becomes a contribution to the candidate or party which is subject to the state's contribution limits. But, there remains the question of contributions from individuals to PACs.

However, it's worth reviewing the state's PAC limits for coordinated expenditures, which, it should come as no surprise, rank among the highest in the nation. According to the Brennan Center report Paper Thin issued in 2006:

CONTRIBUTIONS FROM PACS TO CANDIDATES FOR THE STATE LEGISLATURE
Of the 34 states that restrict contributions from PACs to candidates for the state legislature, New York ranks fourth highest in contributions to candidates for State Senator ($13,900 per campaign cycle), and eighth highest in contributions to candidates for State Representative ($6,800 per campaign cycle).

CONTRIBUTIONS FROM INDIVIDUALS TO PACS
Of the 24 states that limit contributions to political action committees, or PACs, only one state, Louisiana, imposes higher limits than New York. Individuals in New York can contribute up to $50,100 $150,000 per election cycle to PACs, depending on the candidate supported, while states such as Massachusetts impose limits as low as $500 per year, or 0.1 percent of New York’s limit.

Bruno Staying Put for Now--Or Maybe Not

At a press conference today Times Union reporter Eric Anderson queried the ex-Majority Leader about his intentions. He may stay; he may not.

Bruno, To Stay or Not to Stay?; Pays to Be in the Majority

Today's Politics on the Hudson blog writes that ex-Senate Majority Leader Joe Bruno gave mixed signals during a radio interview on if he'll stay till year's end. If he goes, the GOP edge would be just 31-30. Things might get interesting if Governor Paterson calls the legislature back before January.

Among the many interesting stories the New York Times published following Bruno's stepping down, Nicholas Confessore wrote last week (citing a Buffalo News analysis) that Bruno's largess for his constituents totals: "...more than $3 billion in state aid to the Albany region during the last dozen years, including hundreds of millions in capital financing and tax incentives for businesses." That's more than $250 million per year.

Members of the minority, the Assembly Republicans and Senate Democrats, don't come close to the generosity of their majority colleagues because they have vastly reduced resources in terms of members items available and staff budgets.

Two people, one in each of the Assembly and Senate minority, put the figure at 10% of the monies available to the majority. If the ratio of seats is any guide, that hardly seems fair. The Senate GOP has barely 52% of the total seats and the Assembly Democrats hold about 69%.

Top Critics on Albany Session: Not Fresh

With the close of legislative session in Albany, the reviews from critics are in. If Rotten Tomatoes collected the results like it does for movies reviews, the results would be not fresh.

Here's a smattering of the coverage from a few "Top Critics":

Danny Hakim covers session for the Times, and what was left undone, which was preceded by an editorial about the change of majority leader in the Senate that noted the lack of reform. Yesterday, Nicolas Confessore capped things off about the a piece about not expecting the unexpected in Albany.

Rick Karlin of the Times Union was more evenhanded and notes the unforeseen adversity in Albany. Good government groups were less apologetic.

Newsday's Liz Moore points out the work left undone.

Finally, Tom Precious of the Buffalo News offers up a straightforward appraisal with what did and didn't happen.

We're on the edge of our seats in anticipation of the sequel expected next year.

Pays to Have Friends Like Bruno and Skelos

While discussion swirls about what how new Majority Leader Dean Skelos will function in Albany, one thing is unlikely to change: the flow of money between campaign accounts to fellow senators and nearly unlimited transfers to the state party.

As the New York Post reported today, Skelos has a $1.2 million war chest--funded by special interests--for an uncontested election. Like Bruno, whose re-election account balance stood at $1.6 million as of January, Skelos has been almost as generous in doling out campaign cash.

From 2004 to the present, Bruno gave nearly $200,000 to fellow senators (often the maximum $8,500 for the general election, though it's unclear if all faced challengers) and more than $500,000 to the state Republican party, $400,000 of which moved in 2006. Skelos gave nearly $150,000 to senate colleagues and funneled $475,000 to the state party over the same period.