By Jeff Wice and Alexis Marking
EARLY VOTING
N.Y.S. Court of Appeals to Hear Early Voting Challenge Appeal Tomorrow
The state’s highest court will hear arguments tomorrow at 11:00 AM in Stefanik v. Hochul, an appeal challenging the state’s new law permitting voters to mail-in their ballots during the early voting periods. You can watch the oral arguments here: https://www.nycourts.gov/ctapps/live.html
BALLOT PROPOSALS
Equal Rights Amendment Back on New York’s November Ballot
On Tuesday, the Appellate Division, Fourth Department unanimously ruled to put the Equal Rights Amendment back on the November ballot. This ruling overturned last month’s decision by state Supreme Court Justice Daniel J. Doyle, who found the state legislature violated the required procedure because lawmakers acted on the resolution before receiving the attorney general’s opinion. The legal challenge was originally filed in October on behalf of two New York citizens and Assemblywoman Marjorie Byrnes.
On July 1, 2022, the state Legislature had adopted the resolution which sought to amend the state constitution. The Legislature then forwarded the resolution to the attorney general for an opinion on the same day (as required), but did not wait to approve the resolution until after the attorney general issued her opinion. Instead, the Legislature approved the resolution 5 days before the opinion was issued.
The Fourth Department dismissed the petition on Tuesday, finding that the plaintiffs had alleged an “erroneous application of the constitutional provision by which the proposed amendment had been advanced,” stating that an Article 78 proceeding should have been filed instead. However, that challenge must be brought within 4 months of the alleged violation, and that time frame has already passed.
The New York State Constitution currently bans discrimination based on color, creed, race, or religion. The proposed Equal Rights Amendment would increase these protections, additionally banning discrimination based on age, disability, ethnicity, gender expression, gender identity, national origin, pregnancy, pregnancy outcomes, reproductive health care and autonomy, sex, and sexual orientation. The ERA would not preserve an individual’s right to have an abortion, but would prevent others from discriminating against someone for having an abortion. New Yorkers will now be able to vote on this constitutional amendment in November.
2024 Charter Revision Commission Submits 5 N.Y.C. Ballot Proposals
The 2024 Charter Revision Commission has released its final report, which includes 5 ballot proposals for New York City’s ballot this November and the text of the proposed amendments.
Ballot Question #1, or “Clean Streets,” proposes an amendment that would allow DSNY, at the direction of the Mayor, to clean any property that is city-owned. DSNY would also be able to enforce any law, rule, or regulation that relates to the cleanliness of streets, sidewalks, and exteriors of “real property of the City.” The amendment would clarify that DSNY can regulate containers used to dispose of garbage, and would extend DSNY enforcement authority over street vendors to other types of city properties instead of only streets and sidewalks.
Ballot Question #2, or “Fiscal Responsibility,” proposes an amendment that aims to “improve the assessment” of fiscal impacts in the legislative process and update some budget deadlines. The amendment would require that a Fiscal Impact Statement is prepared prior to a public hearing on a proposed local law. It would also require that Fiscal Impact Statements for proposed local laws contain estimates from the City Council and the OMB, as well as a timeline and a new order of procedure. The amendment would also propose “budget modernization” through updated deadlines, such as moving the deadline for the preliminary budget from January 16 to February 1 in years following a mayoral election.
Ballot Question #3, or “Public Safety,” would add new required procedures for “consideration of local laws respecting the public safety operations” of three City agencies: the Department of Correction (NYCDOC), the Fire Department (FDNY), and the Police Department (NYPD). For example, the Council or a Council Committee would be required to hold a public hearing on the covered local laws. The Mayor would have authority to waive all new procedural requirements.
Ballot Question #4, or “Capital Planning,” proposes an amendment that aims to improve the City’s Ten-Year Capital Strategy. The amendment would “promote transparency” by requiring the Citywide Statement of Needs to include additional, more detailed information (e.g., facility conditions). The amendment would formalize the connection between the Ten-Year Capital Strategy Statement of Needs, and the inventory of City facilities, and codify the factors considered when planning the Ten-Year Capital Strategy (e.g., level of deterioration). It would also change some deadlines to align with the release of the City’s preliminary budget.
Ballot Question #5, or “MWBEs and Modernization,” proposes an amendment to support MWBEs and modernize two aspects of municipal government. The amendment would formalize the role of the Chief Business Diversity Officer and its responsibilities. The Mayor would also be able to grant the Mayor’s Office of Media and Entertainment (MOME) employees the authority to issue permits. Lastly, the Archival Review Board and the Archives, Reference and Research Board would be consolidated.
ELECTION LAW
Queens District Attorney Indicts GOP Campaign Workers
On Thursday, July 25, six individuals were indicted in Queens Supreme Court in connection with a scheme to procure fraudulent absentee ballots. According to the charges brought by the Public Corruption Borough in the Queens District Attorney’s Office, the six individuals were volunteers for James Pai, a candidate who was running in the June 2023 Republican Primary for City Council in District 20.
The indictments follow an Election Law proceeding which was bought less than ten days after the primary election on behalf of Mr. Pai’s opponent, Dany Chen. That lawsuit was brought by Aaron Foldenauer, an election attorney who represented Dany Chen’s campaign. In that proceeding, the Chen campaign presented evidence that a handful of individuals had submitted hundreds of forms to the Board of Elections, with forged signatures, requesting hundreds of absentee ballots.
“According to evidence we accumulated and were presenting to the Court, over 500 fraudulent absentee ballots were submitted in connection with this City Council election—enough to change the result of the election, given that the race was decided by just 181 votes,” said election attorney Aaron Foldenauer. The Court ultimately dismissed the election law proceeding in July 2023, ruling that it could not be heard given recent changes to the election law under which absentee ballots envelopes are opened and processed prior to election day.
“My client is gratified that District Attorney Melinda Katz followed this case and now, more than a year after the election at issue, has indicted these six individuals who apparently engaged in blatant voter fraud,” said Foldenauer.
The defendants will return to court on September 19, 2024. Thanks for Aaron Foldenauer for contributing to this story.
CENSUS
U.S. Census Bureau Announces 2026 Census Test Locations
The U.S. Census Bureau has announced the locations for the 2026 Census Test, which will be the first of two on-the-ground tests conducted prior to the 2030 Census. The 2026 test aims to improve the count of hard-to-count and historically undercounted populations for the 2030 Census.
The 2026 Census Test will focus on 6 operational areas: (1) making it easier for people to respond on their own online, by phone or by mail; (2) improving in-person household data collection; (3) improving methods for counting people living in group quarters; (4) enhancing outreach efforts to create awareness, build trust, and encourage response; (5) enhancing the infrastructure that supports census operations; and (6) processing data concurrently with data collection.
The six sites selected for the 2026 Census Test include:
- Colorado Springs, CO (selected areas within metro area);
- Huntsville, AL (selected areas within metro area);
- Tribal Lands Within AZ (Fort Apache Reservation and San Carlos Reservation);
- Spartanburg, SC (selected areas within the metro area);
- Western NC (Cherokee, Graham, Jackson, and Swain counties, and Qualla Boundary); and
- Western TX (Brewster, Jeff Davis, Pecos, and Presidio counties).
AROUND THE NATION
LOUISIANA: On Wednesday, 14 Republican attorneys general filed an amicus brief in the U.S. 5th Circuit Court of Appeals for the case Nairne v. Ardoin. The brief, led by Alabama Attorney General Steve Marshall, argued that a federal judge’s interpretation of the Voting Rights Act— which was used in a case that overturned Louisiana’s legislative maps—was unconstitutional.
Marshall, Alabama’s AG, was joined in the brief by the AGs in Arkansas, George, Indiana, Iowa, Mississippi, Missouri, Montana, Nebraska, North Dakota, South Carolina, Texas, Utah, and West Virginia. The Louisiana AG, Liz Murrill, could not sign because she is a named defendant in the case. Many advocates, including Jared Evans, an attorney with the NAACP Legal Defense Fund, said the attorneys general are trying to use this redistricting case in Louisiana as a “test case” to weaken the VRA’s protections.
Their case focuses on Section 2 of the VRA, which prohibits any voting laws or procedures that purposefully discriminate on the basis of race, color, or membership in a language minority group, or result in citizens being denied equal access to the political process on account of such bases. In February, the U.S. district court ruled that the maps in Nairne v. Ardoin violated Section 2 and that Louisiana should have a “reasonable period of time” to approve new, compliant legislative districts. The ruling did not include the exact length of time or the number of Black districts required in order to comply with the VRA.
Republican attorneys general and state officials have intervened in numerous lawsuits brought by voters, including Nairne v. Ardoin, using a 2023 ruling from the U.S. 8th Circuit Court of Appeals to argue that only the federal government can seek an enforcement ruling under Section 2 of the VRA. In April, Louisiana asked the 5th Circuit to hear an appeal on the basis that there is no private right of action under the VRA, which would give voters no legal standing to sue over a violation of their voting rights. The court denied the hearing.
Legislative leaders in June stated that they did not have “immediate plans” to draw new state House and Senate maps, as ruled by the court.
MICHIGAN: A federal 3-judge panel has approved a new Michigan state Senate map, which will replace the current map beginning in 2026. Last December, the same panel ruled that the Michigan Independent Citizen Redistricting Commission (MICRC) “impermissibly used race as the predominant factor” when drawing 13 state House and Senate districts in the Detroit area. The panel ordered a redraw that was compliant with the Equal Protection Clause.
The 3-judge panel already approved new Michigan House districts, which were then adopted by the MICRC for use in the November 2024 elections. The panel established a later deadline for the MICRC to redraw the state Senate maps because elections in those districts will not take place until 2026.
According to the Detroit Free Press, the new state Senate map includes 14 redrawn districts, including 6 districts that were struck down by the court in December. Moreover, 2 of the 6 state Senate districts that were deemed unconstitutional now contain a majority-Black voting age population. The Black voters who filed the lawsuit did not object to the MICRC’s new districts and the court-appointed expert found no “major flaws” with the map that “would suggest it failed to address the race-related constitutional concerns of the Court.”
NORTH CAROLINA: A lawsuit challenging North Carolina’s newly-enacted congressional and legislative maps (redrawn by the Legislature in October 2023) has been appealed. In the suit, North Carolina voters argued that the 6th, 13th, and 14th congressional districts unduly favor Republicans and contravene the right to “fair elections” under the state’s constitution. The suit also challenged the 7th State Senate district and the 105th State House district.
The lawsuit asked the court to declare that “the citizens of North Carolina have an unenumerated constitutional right to fair elections” and to strike down the maps for violating this right. On June 28, a 3-judge state panel granted the defendants’ motion to dismiss and for North Carolina’s new congressional and legislative maps to remain in place.
The judges ruled that as a result of the state Supreme Court’s prior decision, the voters could not succeed in a lawsuit which argued that the new maps violated the right to “fair” elections under North Carolina’s Constitution. The judges called these issues “nonjusticiable political questions” that were “not appropriate for redress by this Court.” On July 19, the plaintiffs appealed this decision. Three other challenges to these 2023 maps remain ongoing in federal court.
OHIO: The Ohio Secretary of State has announced that the Citizens Not Politicians campaign submitted enough valid signatures to include a redistricting amendment on the Ohio ballot, with 535,005 of the 731,306 signatures submitted being accepted (73.2% approval) from 58 counties. The group was required to submit at least 413,487 valid signatures from at least 44 counties to qualify for the November ballot.
Ohio voters will now decide whether to remove the 7-member Ohio Redistricting Commission, all of which are politicians, in favor of the Ohio Citizens Redistricting Commission. This commission would have 15 members: 5 matching the governor’s political party at the time, 5 from the party of the “gubernatorial candidate who received the second-most votes in the most recent election,” and 5 unaffiliated members. The new commission would also be subject to new rules, such as drafting maps that preserve communities of interest.
Next, the Ohio Ballot Board must approve the language that will describe the redistricting measure on the November ballot by August 22, 2024. Three Republicans and two Democrats comprise the Ohio Ballot Board. The Board is not required to use the same language that is proposed by Citizens Not Politicians.
The N.Y. Elections, Census & Redistricting Institute is supported by grants from the New York Community Trust, New York Census Equity Fund, the Alfred P. Sloan Foundation, and the New York City Council. This report was prepared by Jeff Wice & Alexis Marking.
REDISTRICTING INSTITUTE RESOURCES
The New York Elections, Census and Redistricting Institute has archived many resources for the public to view on our Digital Commons Page.
Our Redistricting Resources page contains resources on the John R. Lewis Voting Rights Act. You can access the page
here: https://digitalcommons.nyls.edu/redistricting_resources/
Archived Updates can be accessed
here: https://digitalcommons.nyls.edu/redistricting_roundtable_updates/
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