By Jeff Wice & Alexis Marking
N.Y. VOTING RIGHTS ACT LITIGATION
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 18th, the Town of Cheektowaga filed a motion to strike and a memorandum (“memo”) in support of this motion. The memo argues that the court should strike Young’s new evidence and arguments that were offered for the first time on reply. The memo also states that Young’s evidence and arguments regarding the Town’s 1952 ward efforts improperly supplement his initial moving papers. Lastly, that none of the exhibits and evidence regarding the Town’s August 2024 ward efforts respond to any arguments made by the Town (which the reply was meant to do). The town’s counsel, Daniel Spitzer also submitted an affirmation in support of the motion to strike.
Also on October 18th, Gary Borek (counsel for Young) submitted an affirmation in opposition to the application of amici. This application related to the New York Attorney General’s memo from September 27th. This memo was filed in opposition to the defendants’ cross-motion for summary judgment. Nassau County and the towns of Newburgh and Mount Pleasant are all defendants in separate actions under the NYVRA and now seek to respond to the memo together, as the Attorney General’s position affects all three cases.
In this affirmation, Borek argues that the request by Nassau County and the Towns of Newburgh and Mount Pleasant should be denied for three reasons. First, these parties (the “purported amici”) are not “friends of the court,” but rather are litigants in other NYVRA cases “advancing a private interest rather than public interest” in this proffered amicus brief. Second, Borek argues that these parties have not shown that the Town of Cheektowaga and the Town Board are “incapable” of raising the same issues as those raised in the brief. Lastly, Borek states that these parties do not have the capacity to challenge the constitutionality of a New York State statute and should not be allowed to do so via this brief.
Nassau County Legislature: Coads et al. v. Nassau County & NY Communities for Change v. Nassau County
Coads et al. v. Nassau County and NY Communities for Change v. Nassau County, arose from challenges to the 2023 redistricting map for the Nassau County Legislature, which went into effect on February 28. These actions were joined for discovery.
On October 15th, the New York Civil Liberties Union Foundation submitted three notices of entry for orders made by the Appellate Division of the New York State Supreme Court, Second Judicial Department on October 11th.
The first notice of entry is for an order which stems from Nassau County’s objections to the plaintiffs’ demands for certain documents and communications. In an order entered on August 7th, the Supreme Court directed the defendants to disclose those documents and communications to the plaintiffs after an in-camera review. The defendants appealed this order. The Appellate Division affirmed, stating that the Supreme Court properly exercised its discretion to direct the defendants to do so.
The second notice of entry is the Appellate Division’s order regarding appeals to an August 13th Supreme Court order. In this order, the court denied motions to quash a subpoena served upon two non-parties for a protective order, as well as granted the application of the plaintiffs to compel these non-parties to appear for depositions. The non-parties included Dr. Sean Trende, a redistricting expert and litigation consultant who informed the firm’s legal advice in Coads et al., and non-party Misha Tseytlin, the county defense attorney. The Appellate Division affirmed.
The third notice of entry stems from a Supreme Court order on August 15th. Here, the court granted the plaintiffs’ application to compel non-parties Trende and Tseytlin to produce certain documents responsive to a subpoena served upon each of them. The Appellate Division affirmed.
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 16th, the Town of Newburgh and Newburgh Town Board filed a motion in limine (pre-trial) to exclude the “addendum” of Dr. Matt Barreto and any testimony and/or opinions regarding such. The defendants filed a memorandum of law (“memo”) in support of this motion, arguing that the court has broad discretion to exclude the Dr. Barreto’s “untimely” expert report. They further argue that this addendum occurred approximately 68 days after the expert report deadline, and that no explanation or justification has been provided for this delay. An affirmation in support of this motion was also filed by Bennet Moskowitz, counsel for the defendants, which includes twelve exhibits.
On October 17th, the court issued an order “in the best interest of the parties and the resolution of the claims and defenses in this special proceeding” that the amici be allowed to file a brief. Last week, 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 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. A brief will now be filed.
On October 17th, the Town of Newburgh and Newburgh Town Board filed responses to the plaintiffs’ statement of material facts as to which there are no genuine issues to be tried, disputing much of the information provided by the plaintiffs in support of their case.
On October 17th, the defendants also filed a reply in support of their motion for summary judgment. Their argument centered on three main points. First, they argue that the plaintiffs failed to provide any admissible evidence of an alternative election system that would provide minority voters with a greater chance to elect their preferred candidates of choice. Second, the defendants state that the plaintiffs cannot “successfully defend” the constitutionality of the NYVRA’s at-large provisions. Lastly, the defendants argue that the plaintiffs do not point to any evidence that minority-favored candidates do not have a “reasonable opportunity to elect preferred candidates in even-number years.” Moskowitz, counsel for the plaintiffs, submitted an affirmation in support of this motion, including two exhibits.
Westchester County: Serratto et al v. Town of Mount Pleasant
This lawsuit was filed in January by voters in the Mount Pleasant Hispanic community alleging 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, led to racially polarized voting and prevented Hispanic voters from electing the candidate of their choice.
On October 15th, counsel for the plaintiffs filed a letter with the judge concerning the town’s motion for summary judgment in August. One of the town’s arguments in this motion was that the plaintiffs’ challenge was moot because of the New York State Legislature’s decision to move town elections to even years. Counsel wrote to inform the court that last week a judge issued an order in County of Onondaga et al. v. New York et al. enjoining the state “from enforcing and/or implementing the Even Year Election Law.”
ELECTION LAW
Absentee Ballot Challenge Before Court of Appeals
The N.Y. State Court of Appeals heard arguments from attorneys representing the New York State Republican Party (plaintiffs) and the New York State Attorney General’s office (defendants) regarding a recently approved voting law. The case focuses on a three-year old law that changed how to challenge disputed absentee ballots, including mail-in ballots cast during the early voting period.
As explained by the Albany Times Union, “Before an absentee ballot is received by a local board of elections, at least two people are designated as the ‘central board of canvassers.’ The board has to be equally divided between Democrats and Republicans. When an absentee ballot is ready to be counted, the board checks to see if the person who sent it is registered to vote in that election. If they’re not, the ballot is set aside and not counted. If their registration is found, the board then compares the signature on the envelope with that of the voter. If the board agrees they match and there are no other defects, that vote is set aside to be counted.”
This case will answer what should happen in the event that the central board of canvassers disagree on the signature or the validity of the ballot. According to the previous law, the ballot would not be counted if board members disagreed on a ballot’s validity. The new law now requires the board to count the ballot even when there is a split on its validity. If one member believes it is valid while others do not, the new law requires the ballot to be counted. Many argue that this presumption of validity is the same presumption that applies to in-person voting.
This change in the law was meant to prevent election results from not being finalized for days or weeks due to disagreements over signatures. However, the State Republican Party filed a lawsuit last year, arguing the law violates the State Constitution because it requires bipartisan involvement in election oversight.
Additionally, this lawsuit must consider what role the courts should play in election oversight. Under the new law, there is no way for someone on the central board of canvassers to ask a judge to intervene if they strongly disagree with a signature. The ballot is counted and then entered into a pile of anonymized ballots, which means the ballot in question cannot be distinguished from the others.
New York’s Republican Party won their case in trial court, but an appellate court in Albany reversed the decision and reinstated the law in August. The Court of Appeals will now decide in the next few weeks.
CENSUS
Fewer New Yorkers Moved Away in 2023
The U.S. Census Bureau has released its 2023 State-to-State Migration Flows Statistics, which provides estimates of the number of people moving between the states, the District of Columbia, and Puerto Rico, as well as to the United States from abroad. These statistics are obtained each year through the American Community Survey (ACS).
Based on this new data, fewer people moved out of New York in 2023 than the year before. Some analysts have suggested that this data may indicate a “modest recovery” after many New Yorkers left the state during the COVID-19 pandemic. An estimated 481,544 New Yorkers moved away in 2023, while approximately 302,835 people moved to New York. These estimates amount to a net population loss of 178,709 residents. In 2022, New York’s net population loss was 244,137 residents, revealing a “statistically significant change” between 2022 and 2023.
The six states that received the highest numbers of New Yorkers in 2023 include (1) Florida at 71,138 (which has lowered from 91,201 residents in 2022); (2) New Jersey at 55,926 residents; (3) Pennsylvania at 42,637 residents; (4) California at 35,062 residents; (5) Texas at 29,610 residents; and (6) North Carolina at 29,175 residents.
For individuals moving into New York, the five most common states to move from were: (1) New Jersey at 40,474 residents; (2) California at 31,097 residents; (3) Pennsylvania at 27,603 residents; (4) Florida at 24,749 residents; and (5) Massachusetts at 21,001 residents. Four of these five states are also where New Yorkers are most commonly moving to. Some analysts suggest that New Yorkers are now moving back from these states after the pandemic.
Leslie Reynolds, a research analyst with Cornell University’s Program on Applied Demographics, stated that the 2023 estimates were “not a reversal [of population losses] but a slight recovery from the COVID time that hit New York especially hard.” Reynolds also said that in the post-COVID years, New York experienced unprecedented losses compared to the previous decade.
AROUND THE NATION
GEORGIA (Certifying Election Results): Last Monday, a Georgia court ruled that certifying election results is a mandatory duty for county election officials and may not “refuse to certify or abstain from certifying election results under any circumstance.” This lawsuit was filed in September. The plaintiff asked the court to declare that certifying election results is not a mandatory duty and to allow board members full access to election materials.
The court further ruled that while election officials may seek “certain, non-confidential election-related information, “any delay in receiving such information is not a basis for refusing to certify the election results or abstaining from doing so.”
The deadline for county election officials to certify is November 12th, after which the Georgia Secretary of State will audit and certify statewide results by November 22nd.
GEORGIA (Hand Counting Ballots): A Georgia judge has temporarily blocked a last-minute Georgia State Election Board (SEB) rule, which required election officials to verify the total vote by hand counting ballots after the polls close on November 5th. The rule will thus not be used in the upcoming general election.
The judge stated that the rule “introduced a new and substantive role on the eve of election for more than 7,500 poll workers who will not have received any formal, cohesive, or consistent training and that allows for our paper ballots—the only tangible proof of who voted for whom—to be handled multiple times by multiple people following an exhausting Election Day.”
Six other lawsuits challenging SEB rules, including the Hand Count Rule, are currently pending in courts across Georgia.
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.