By Jeff Wice, Alexis Marking & Jordan Karpoff
REDISTRICTING
NYC Council Map Challenge Goes to State Court of Appeals
This lawsuit was filed against the New York City Districting Commission, the New York City Board of Elections, and the New York State Board of Elections challenging the New York City Council district map based on an alleged violation of the New York City Charter.
Plaintiffs include Desis Rising Up and Moving (DRUM) and 18 Indo-Caribbean and South Asian residents of Richmond Hill/South Ozone Park (RHSOP), Queens. The plaintiffs allege their voting power was diluted because their community was unlawfully split into three separate city council districts during the post-2020 redistricting cycle. They argue that this map violates explicit protections within the New York City Charter, which requires districting commissions to draw maps that, “to the maximum extent practicable,” ensure “fair and effective representation of racial and language minorities.”
On July 11, the petitioners filed a motion for leave to appeal to the State Court of Appeals, as well as a memorandum in support of this motion. The memorandum focuses on two main arguments: (1) that the questions presented in this case are “exceptionally important,” and (2) that the appellative division was wrong to reject their first appeal.
For the first argument, the petitioners argue that the First Department “essentially nullified” § 52(1) of the Charter and that the court will not have another opportunity to fix this error until the next redistricting cycle in 2032. For the second argument, the petitioners argue that § 52(1) of the Charter is mandatory and requires the commission to prioritize “effective representation” over other factors. Furthermore, the commission’s refusal to consider “more minority-protective alternatives” was “arbitrary and capricious.”
On August 2, NYC’s corporation counsel filed a memorandum in opposition to the petitioners’ motion for leave to appeal. The memorandum provided an overview of the case and reasons to deny leave. Two main arguments were included: (1) given the commission’s “careful consideration” of the broad districting criteria, as well as for this Asian community in particular, no leave-worthy issue exists; and (2) leave to review the commission’s interpretation of the Charter is not warranted for “multiple, independent” reasons.
A hearing date for this motion has not been scheduled yet.
N.Y. VOTING RIGHTS ACT LIGITATION
Orange County: Clarke et al. v. Town of Newburgh
In January, three Black and three Hispanic residents of Newburgh filed this lawsuit claiming the town’s at-large election system for Town Board elections prevented Black and Hispanic residents from electing candidates of their choice, violating the N.Y. Voting Rights Act.
On October 3rd, the counsel for the plaintiffs advised the court that the parties are available to continue the trial to November 20th -21st , which the court had previously identified as potential trial dates. The letter also requested that the court calendar those dates for trial in this matter.
Westchester County: Serratto et al. v. Town of Mount Pleasant
This lawsuit was filed in January by the local Hispanic community voters who alleged that the town’s use of an at-large method of election, where all voters elect the Town Supervisor and all four Town Board members, resulted in racially polarized voting and prevented Hispanic voters from electing the candidate of their choice.
On September 30th, the plaintiffs’ attorneys requested that the court refer this case to the trial assignment part as soon as possible due to the case’s urgency and because Election Law § 17-21 requires this case to be expedited and given automatic calendar preference.
This action concerns potential changes to the 2025 Town of Mount Pleasant elections. Petitioning starts in February 2025 and candidate recruitment will begin in January 2025. It’s argued that the court needs to hold a trial and decide prior to February 2025 if the election structure were to be modified “without the necessity to stay either petition collection or the election.”
Erie County: Young v. Town of Cheektowaga
In March, one-time Town Board candidate Kenneth Young filed a lawsuit against the Town of Cheektowaga alleging racially polarized voting and violations of the New York Voting Rights Act (NYVRA) in the Cheektowaga Town Board elections. Young claims that minorities cannot elect candidates of their choice under the town’s current at-large voting method and should adopt a ward voting system.
On October 2, numerous documents were filed with this court regarding the application for a proposed amici brief of the Town of Newburgh, the Town of Mount Pleasant, and Nassau County in response to the Attorney General’s memorandum from September 27. This memorandum was filed in opposition to the defendants’ (the Town of Cheektowaga and the Cheektowaga Town Board) cross-motion for summary judgment. Nassau County and the towns of Newburgh and Mount Pleasant are all defendants in separate actions under the New York Voting Rights Act (NYVRA) and now seek to respond to the memorandum together, as the Attorney General’s position affects all three cases.
The proposed amici brief includes three main arguments. First, the brief argues that a locality cannot abandon or alter a “race-neutral election system” based upon racial classifications unless the locality can satisfy strict scrutiny. Strict scrutiny under the Equal Protection Clause applies any time “the government distributes burdens or benefits on the basis of individual racial classifications.”
Second, the brief argues that the NYVRA is unconstitutional because it forces localities to change “race-neutral election systems” based upon racial classifications without satisfying strict scrutiny. Third, the brief argues how the Attorney General’s argument (which states the NYVRA is constitutional because it is not sufficiently race-based to “trigger” strict scrutiny) is wrong.
On October 3, plaintiff Young’s counsel asked to submit a response and “be heard in respect to the application” before the court decides whether to permit Nassau County and the towns of Mount Pleasant and Newburgh to be recognized as “amici” in this case.
On October 4, the state Assistant Solicitor General filed a letter to the judge, which stated that the Office of the Attorney General does not object to the filing of the amicus brief “provided we have an opportunity and sufficient time to respond.” The letter also requested October 22 as the deadline to file a responsive brief.
N.Y. VOTING RIGHTS ACT PRECLEARANCE ACTIVITY
Attorney General Grants “Preliminary” OK to Monroe County
With the state Voting Rights Act preclearance process now underway, the Voting Rights Section of the Attorney General’s office has granted preliminary approval to Monroe County’s request to relocate an early voting poll site. The poll site was moved 275 feet away from its prior site to do the previous site no longer being available for use by the landlord. The request was made on October 1st and preliminarily approved the next day.
This was the first preclearance action taken under the new state law. Updates on future preclearance activity will be included in future reports.
ELECTIONS
Working Families Party Congressional Candidate Challenged in the 17th Congressional District
Westchester County Democratic chairwoman Suzanne Berger and a member of the Working Families Party (WFP) have filed a lawsuit to remove WFP candidate Anthony Frascone from the ballot in the 17th congressional district race.
A Westchester State Supreme Court judge issued a restraining order last week that barred the election boards in Hudson Valley’s 17th District (including all of Putnam County and Rockland County, as well as portions of northern Westchester and southern Dutchess Counties) from issuing ballots to voters with Frascone’s name on it until a court ruling. A hearing is scheduled for today.
The plaintiffs argue that Frascone should be disqualified because he is a convicted felon in an insurance scam. In June 2022, Frascone was indicted by a grand jury for lying to obtain workers’ compensation insurance for his firm. He also underpaid premiums by $1.49 million. Frascone later pled guilty and paid insurers more than $600 million in restitution. However, some experts argue that a federal conviction does not bar individuals from serving in Congress.
Frascone defeated Democratic candidate Mondaire Jones for the WFP ballot line in the June primary. A recent campaign poll showed that Jones was trailing Republican incumbent Mike Lawler by 3 points: 46% compared to 43%, with Frascone at 5%. Without Frascone on the ballot, Jones would trail Lawler by only 2 points: 47% compared to 45%. The lawsuit claims Frascone will “siphon” and “dilute” the vote from other candidates, such as Jones.
New Yorkers Are Refusing Party Labels
According to a report published in the Albany Times Union authored by Emilie Munson and Raga Justin, “upstate migration and a deep political polarization could influence New York’s 2024 election, as voter registration data from each county in the state reflects a changing political dynamic, especially in the Hudson Valley and further upstate in Saratoga and St. Lawrence.”
Highlights from the report include:
-more voters have dropped party affiliations and left New York City for upstate locales, changing long-established
-One in four registered active voters in New York do not belong to a party
-2020 was the first year since 1961 that unaffiliated voters outnumbered Republican voters in New York. In 1961, there were about 5,000 more unaffiliated voters than Republicans; that margin has increased to about 302,000 statewide
-While voter registration numbers are lower in Manhattan, more voters are voting in the Hudson Valley and Saratoga County.
These numbers may be due to “an increase in political polarization and the pandemic-era relocation of voters as contributing to the changing dynamics of party affiliation across New York. Many voters stick to their party lines when voting and changes in registration enrollments can help predict the likely outcome of a race.”
-More than 12 million New Yorkers are registered to vote as of October 1st, a 1% decrease from November 2020. “that aligns with a recent surge in outmigration from New York, which caused the state to lose a congressional seat and an electoral college vote in 2022.”
–every county recorded an increase in unaffiliated voters between the 2012 presidential election and today Over the last four years, unaffiliated voters increased everywhere in the state except New York and Jefferson counties. The biggest spikes in “no party” voters have been in Washington, Hamilton, Broome, Delaware, and Monroe counties.
-while unaffiliated voters are not the dominant party in any county, they are the second largest party in many New York counties
Read the complete article here: https://bit.ly/3NfO3UZ
AROUND THE NATION
Absentee Ballot Case Could Impact New York: RNC v. Wetzel
The U.S. Court of Appeals for the Fifth Circuit heard oral arguments for RNC v. Wetzel on September 24th of a District Court ruling upholding Mississippi state law allowing absentee mail-in ballots to be counted if postmarked on Election Day and received up until five days following Election Day.
The Republican National Committee (“RNC”), the Mississippi Republican Party, and the Libertarian Party of Mississippi filed a set of lawsuits attempting to block Mississippi from accepting mail-in absentee ballots that are postmarked by Election Day but not received up until five days after Election Day. Washington, D.C. and eighteen other states, including New York, have similar laws allowing these ballots to be counted if they arrive after Election Day. Democrats are asserting that the Republicans are trying to throw out valid votes while the Republicans say that they want to strictly follow voting laws and the view that this lawsuit is an attempt of voter suppression is a “far-left conspiracy theory.”
The RNC brought this lawsuit in January, arguing that elections must be completed by Election Day since Election Day is a specific day set by Congress. The RNC argued that Election Day is a ballot-receipt day and by allowing post-election receipts for mail-in ballots, states are extending the election beyond the day set by Congress. District Court Judge Louis Guirola Jr. upheld the law, noting that the purpose of having a single General Election is to ensure that voters are not burdened or influenced by results in other states. Additionally, Judge Guirola noted that the states are traditionally in charge of setting rules on accepting absentee ballots, not Congress.
On appeal, the RNC argued that the receipt deadline exceeds the time to “complete the election” beyond what federal law permits. They argue, that “election” is a conclusive term and as such, cannot extend past the one day granted by federal law and that what matters is the date of receipt, not the day the ballot was cast. The RNC also argues that Mississippi’s receipt deadline violates the First and Fourteenth Amendments as “forcing a candidate to expend resources to campaign against an unlawful regulation burdens their rights to stand for office” since the election would not be considered complete.
New York joined Washington, D.C. and 17 other states in a jointly filed an amicus brief in support of Wetzel, arguing that the Constitution gives the states “the primary power to regulate elections” and how every state has used its best judgment to craft their voting laws, whether allowing late-arriving absentee ballots to be considered timely or not. Additionally, the amici briefs detail how mail ballots are deeply rooted in history. Lastly, the Appellees, Amicus States, and the DNC detail the burden that changing the law could have on those who reply on mail-in ballots, including the armed forces.
The three judges who heard the case in the Court of Appeals for the Fifth Circuit were all appointed by former president Donald Trump. The judges asked questions about the history of voting laws and definitions of “Election Day” and “casting” ballots. While a decision has not been published yet, the judges noted that the U.S. Supreme Court has expressed concerns about changing election rules right before an election. The Fifth Circuit’s ruling will be binding in Mississippi, Louisiana, and Texas; however, it could cause an uproar in the other circuits, should a lawsuit be filed in any of the other eighteen states, or the case be brought before the Supreme Court, which would impact every state’s election laws.
Many people are concerned about the outcome that ruling in favor of the RNC would have. Such impacts could include decreased voter participating, as this would negatively impact the armed forces, other U.S. citizens living overseas, college students, and those who simply cannot make it to the polls on Election Day. Additionally, as Election Day is less than a month away and many absentee ballots have been being printed and sent our shortly. Invalidating the law could cause a lot of confusion among voters and place a heavy burden on lawmakers to change their election laws, and voters who were relying on their mail-in ballots. The Purcell principle counsels courts against ordering these types of voting changes in the run-up to the election because of all the confusion it would cause. However, it is ultimately up to the Fifth Circuit to decide how to rule on these challenges and how their ruling could disrupt the upcoming election.
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/
Please share this weekly update with your colleagues. To be added to the mailing list, please contact Jeffrey.wice@nyls.edu
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 & Jordan Karpoff.