By Jeff Wice with Jordan Karpoff & Alexis Marking.
N.Y. VOTING RIGHTS ACT LITIGATION
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 has prevented Black and Hispanic residents from electing candidates of their choice, thus violating the N.Y. Voting Rights Act.
On October 10th, the plaintiffs submitted a memorandum of law in opposition to the town’s motion for summary judgment. The plaintiffs included four main arguments.
First, that the defendants, the Town of Newburgh and the Town Board of Newburgh, lack capacity to challenge the facial constitutionality of the NYVRA. Second, that the NYVRA is constitutional.
Third, the plaintiffs argue that the amendments to Town Law § 80, which the defendants are currently challenging as unconstitutional in a separate action, do not moot this case. Lastly, that there is “extensive unrebutted evidence that a reasonable alternative election system would improve Black and Hispanic voters’ electoral influence relative to the existing system.”
On October 10th, the plaintiffs submitted a “statement of material facts as to which there are no genuine issues to be tried” in support of the motion. The statement included 118 separate statements on numerous overarching topics, such as the pattern of racially polarized voting in Newburgh, the availability of alternative electoral systems, and the town’s responsiveness to the needs of the Black or Hispanic community.
On October 11th, attorneys for the ACLU of Southern California, ACLU of Northern California, and Campaign Legal Center submitted a memorandum for leave to participate as amici curiae (friend of the court) in opposition to the defendants’ motion for summary judgment. Amici curiae are individuals or organizations that are not parties to a legal action, but are permitted by the court to offer information, expertise, or insight that has bearing on the issues within the case.
The memo argues that the NYVRA’s judicial construction is a “question of important public interest with ramifications far beyond this individual case.” Further, this case has “significant implications” for New York residents whose voting rights are protected by the NYVRA, as well as voters across the U.S. whose rights are protected by similar state voting rights acts. As a result, the organizations state that their expertise in the area of voting rights would be of assistance to the court in this matter.
Lastly, on October 11th, the judge signed an order for the parties to show cause on why an order should not be ordered granting the proposed amici leave to file the proposed amici brief on October 16th. Answering papers must be filed no later than October 15th.
Erie County: Young v. Town of Cheektowaga
In March, a prior 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 7th, Young filed a response to the town’s statement of undisputed material facts. In this response, Young’s counsel argues that the Town’s statement of material facts only cites an “inadmissible unsworn expert report of Defendant” and a “Brieformation” of the Town’s attorney, which Young’s counsel further argues “improperly relies” on the unsworn expert report. Young also responded separately to twenty-three statements made by the defendant, often arguing that the Town has not provided evidence in admissible form for the statements that were made.
Also on October 7th, Young submitted a memorandum (“memo”) of law in further support of his motion for partial summary judgment and in opposition to the Town’s cross-motion for summary judgment. This memo includes four arguments. First, Young argues that neither denial nor continuance of Young’s motion is warranted by demonstrated need for any pending discovery. Second, that no material issues of facts prevent the relief requested by Young in his motion. Third, Young argues that the town lacks capacity to challenge the constitutionality of the NYVRA on behalf of itself or its residents. Lastly, he argues that the NYVRA is not unconstitutional.
Young’s counsel, Gary Borek submitted an affirmation in further support of Young’s motion. Borek offered this affirmation principally to identify documents that are material to the pending motions and referenced in Young’s memorandum of law. This affirmation included sixteen exhibits, including a Buffalo News article from August and the plaintiff’s and defendant’s proposed ward maps.
On October 2nd, an affirmation was submitted by Bennet J. Moskowitz, a counsel for Nassau County and the Town of Newburgh in separate actions under the NYVRA, in support of the proposed amici of Nassau County, the Town of Newburgh, and the Town of Mount Pleasant’s motion for leave to file amici brief in response to the New York Attorney General’s memorandum. These parties seek to respond to the memorandum together because the attorney general’s position affects all of these cases.
On October 9th, the judge signed an order to show cause related to Moskowitz’s affirmation, the proposed amici brief, and all prior pleadings. Young and the town will have to appear before the court on October 23rd. Any opposition papers must be served on amici’s counsel on or before October 18th. Reply papers must be submitted on or before October 22nd.
ELECTION LAW
Onondaga County: Even Year Election Law Struck Down
An Onondaga County state supreme court judge denied the New York attorney general’s motion to dismiss the case and struck down the Even Year Election Law as unconstitutional.
Onondaga County, along with the Onondaga County Legislature and County Executive J. Ryan McMahon, filed a lawsuit against the state, Governor Kathy Hochul, and local election officials challenging the Even Year Election Law, which requires that local governments conduct certain elections in even-numbered years. Specifically, this means that elections for county executives, county legislators, town supervisors, and town elected officials would occur in even years, which is when state and federal elections are held. The goal was to create a consistent schedule for elections in order to enhance voter participation and alleviate fatigue among those who struggle to take time off work or travel to polling places each year.
Onondaga County contended that this law infringed on Article IV of the State Constitution, which grants local governments the power to manage all facets of county governance, including the scheduling of elections for local officials. The county argues that the state legislature overstepped constitutional bounds as outlined in Article IX. Additionally, seven other counties—Oneida, Nassau, Rensselaer, Dutchess, Orange, Rockland, and Suffolk—have initiated similar legal actions, which were consolidated in the Onondaga County challenge. In August, the state attorney general filed a motion to dismiss the case and the court heard oral arguments on September 17th.
In a ruling by Judge Gerald Neri, the court rejected the attorney general’s request to dismiss the case and declared the Even Year Election Law unconstitutional. As a result, New York counties are permitted to conduct local elections in odd-numbered years.
Here, the court held that the law is unconstitutional and prohibits enforcement of the Even Year Election Law. Under Article IX of the New York State Constitution, states can only interfere with existing county charters when it is a matter of state concern and local elections do not rise to the level of state concern for the state to be able to enact or enforce this law. Judge Neri did not accept the argument that the law was to help boost turnout and reduce voter fatigue. The law does not apply to all elections, exempting races for “sheriff, county clerk, district attorney, family court judge, county court judge, surrogate court judge, or any offices with a three-year term prior to January first, two thousand twenty-five,” which makes it more confusing for voters. Additionally, half of the state would be exempt from the change, asked if “urbane voters of New York City less likely to be confused by odd year elections than the rubes living in Upstate and Long Island.” While New York argued that voter turnout has been higher during recent presidential and gubernatorial elections, Judge Neri believed that voter education plays a greater role in turnout than timing when it came to those statistics. As such, the law was held unconstitutional and counties may hold elections for local offices during odd years.
An appeal is expected.
NYPIRG Identifies 20 Colleges with Large Student Populations and No Polling Places
(via NYPIRG) “NYPIRG… released an analysis of general election polling site data from the State Board of Elections showing 20 four-year colleges with 1,000 or more full time students and on campus housing do not have a polling place within a mile of campus.
In 2022, New York initiated an important new program to help young adults attending college to more easily vote. The law stated that campuses that have 300 registered voters or more living on campus and registered at their college address should have a polling place. Given the size of the student population at the 20 schools NYPIRG identified and the usual requirement that first and second year students live at an on-campus address, it is reasonable to assume that each should have been eligible for a polling site.
A coalition of civic and youth voting groups called on the Board of Elections to justify why those schools did not qualify for a polling place under the 2022 law. The coalition formally requested communications and documents from the State Board to shed light on the decision-making process that led to the placement of poll sites.”
AROUND THE NATION
GOP Challenges American Overseas Election Ballots
A group of Republican Congressmembers from Pennsylvania filed a federal lawsuit looking for better scrutiny of votes case by U.S. citizen voters living abroad (including military voters). In Pennsylvania, election officials are not required to verify the identity or eligibility of voters registered overseas. The Congressmembers want their ballots set aside until their eligibility is verified.
FLORIDA: On Wednesday, a federal judge denied a request from voting rights groups to reopen Florida’s voter registration due to the effects of Hurricanes Helene and Milton. The original deadline to register was last Monday.
The Florida State Conference of the NAACP and the League of Women Voters of Florida filed a lawsuit and emergency motion on Wednesday to ask the court to reopen the state’s voter registration for a minimum of ten additional days. This lawsuit comes after Governor DeSantis refused to extend the deadline.
In the decision, the federal judge stated that if individuals were evacuating due to Hurricane Milton, they still could have registered online while doing so, as the form only takes roughly ten minutes to complete.
VIRGINIA: On Friday, the U.S. Department of Justice filed a lawsuit against Virginia election officials accusing Virginia of violating federal law via Governor Glenn Youngkin’s executive order, which was issued in early August.
The executive order, which was issued less than ninety days before the general election, requires daily updates to remove ineligible voters from voting lists. This process includes removing people who are “unable to verify that they are citizens” to the state’s DMV from the statewide voter registration list. The Justice Department alleges that the DMV data can often be outdated or inaccurate, but officials have not been taking any additional steps to verify a person’s alleged non-citizen status prior to canceling their voter eligibility.
The National Registration Act requires a ninety-day “quiet period” for the maintenance of voter rolls ahead of elections. In the lawsuit, the Justice Department states that this provision reduces the risk that “errors in maintaining registration lists will disenfranchise eligible voters by ensuring that they have enough time to address errors before the election.”
A similar lawsuit was also filed against the state last week by immigrants-rights groups and the League of Women Voters.
WEST VIRGINIA: In the state legislature, five West Virginia Republican officials introduced House Resolution 203, which urges the state not to recognize an “illegitimate presidential election.” The proposal outlined conditions in which an election should be deemed “illegitimate,” such as in situations when the attorney general or secretary of state “determine that election fraud in any state was a major reason that resulted in a candidate for President obtaining a majority in the Electoral College.” All statewide offices and the West Virginia Legislature are currently controlled by Republicans.
House Resolution 203 also stated that “West Virginia will not recognize any election of the Democrat candidate for President during the 2024 election cycle if the Republican presidential or vice-presidential candidate is assassinated, seriously injured during an assassination attempt, incarcerated, de facto eliminated or barred from the ballot in any states.”
This resolution prompted some Democratic delegates to introduce House Resolution 204, which requested that the Legislature “facilitate and promote respect for our democracy and government institutions and encourage acceptance of the results of our free and fair elections regardless of who prevails.”
House Resolutions 203 and 204 were referred to the judiciary committee and there has been no action on either resolution.
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 with Jordan Karpoff & Alexis Marking.