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 minority voters cannot elect candidates of their choice under the town’s current at-large voting method and should adopt a ward voting system.
On October 22nd, a reply was filed by Nassau County and the Towns of Newburgh and Mount Pleasant in support of their motion for leave to file an amici (“friend of court”) brief in response to the Attorney General’s September 27th memorandum. 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 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.
On October 25th, the court released an order stating that the amici’s motion for amicus curiae relief (to file amici brief with the court regarding this matter) was granted. The court further ordered that the amici’s proposed brief and any affirmations and exhibits filed in support of the brief shall be deemed filed as of October 25th.
Nassau County Legislature: Coads et al. v. Nassau County & NY Communities for Change v. Nassau County
These two actions, 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 21st, Nassau County and the Nassau County Legislature filed a notice of motion for summary judgment. This motion was filed alongside a statement of material facts, an affirmation in support of the motion, twenty-four exhibits, and a memorandum of law (“memo”) in support of the motion. The memo addressed Action I (Coads et al.) and Action II (NY Communities for Change) separately.
For Action II, the defendants argue that the NYVRA’s district-based provisions are unconstitutional. Alternatively, the memo argues the NYVRA claim fails because the plaintiffs have presented no evidence that the candidates of choice of minority racial groups will “usually be defeated” under Local Law 1 across the county.
On October 23rd, counsel for the defendants filed a letter with the judge. The letter stated that the defendants do not consent to the release of any documents withheld as privileged—including for attorneys’-eyes-only review—during the pendency of the appellate process and the automatic stay invoked by the appeals.
Orange County: Clarke et al. v. Town of Newburgh
In January, several Black and Hispanic residents of Newburgh filed this lawsuit, claiming the town’s at-large election system for Town Board elections has prevented Black and Hispanic voters from electing candidates of their choice, thereby violating the N.Y. Voting Rights Act.
On October 24th, the plaintiffs filed a memo in opposition to the Town of Newburgh and Newburgh Town Board’s motion in limine (pre-trial), which sought to exclude the “addendum” of expert Dr. Matt Barreto and any testimony or opinions regarding such. The defendants argued that Dr. Barreto’s expert report should be excluded for untimeliness. Here, the plaintiffs respond that they disclosed the identity of their expert witness in a timely manner. The addendum in question provided additional context on a topic that Dr. Barreto had previously addressed. The plaintiffs also argue: (1) the defendants must show prejudice to justify the “drastic remedy” of preclusion; (2) the defendants have not and cannot show prejudice; and (3) If this Court excludes the addendum, there is no justification for precluding Dr. Barreto from testifying about reasonable alternative electoral systems at trial.
On October 25th, the defendants filed a reply in support of their motion in limine to exclude the addendum and any testimony and/or opinions regarding the same. The Town of Newburgh and Newburgh Town Board argued again that the court should preclude Dr. Barreto’s untimely expert report.
On October 25th, the court released its decision and denied the defendants’ motion in part. Based on this order, the defendants failed to establish “intentional conduct” by the plaintiffs that would support preclusion at trial. Moreover, any prejudice can be cured by additional time for the Town of Newburgh and Newburgh Town Board to rebut the new data. Although the plaintiffs failed to seek leave for this late expert disclosure, the court wants to “hear this case fully on its merits and will allow it in.”
As a result, the court granted leave for one or both of the defendants’ designated experts for trial to supplement their prior reports with regard to data addressed by this Barreto Addendum. The court also ordered the plaintiffs to produce Dr. Barreto for a continued deposition as to the addendum only and adjourned the trial of October 31st.
ELECTION LAW
Absentee Voting: Court of Appeals Hears Amedure Challenge
On October 15th, the New York Court of Appeals heard arguments from attorneys representing the state Republican Party (the plaintiffs) and the Attorney General’s office (the defendants). The case focuses on a line added to state Election Law three years ago, which changed how to challenge disputed absentee ballots, including mail-in ballots cast during the early voting period.
This case will answer what should happen if the central board of canvassers—which includes at least two people and must be equally divided between Democrats and Republicans—disagree on the signature or the validity of the ballot. 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 enacted to prevent an election’s results from not being finalized for days or weeks due to disagreements over signatures. However, the New York State Republican Party filed a lawsuit last year, arguing the law violates the New York State Constitution because it requires bipartisan involvement in election oversight.
Counsel for the Republican Party argued that this law unconstitutionally allows election boards to make “unilateral decisions on the validity of mail-in ballots.” Counsel also argued that the law does not allow the courts to adjudicate the issue—because the ballot is counted and then entered into a pile of anonymized ballots, the ballot in question cannot be distinguished from the others. Lastly, counsel stated that there is a chance that “political operatives” could flag specific ballots for commissioners who could then deem the ballots as valid or invalid based on the votes inside.
Court of Appeals Associate Judges Anthony Cannataro and Jenny Rivers questioned how this law is partisan if it applies the same to both parties. Judge Cannataro asked “even if as you say one commissioner has the upper hand, that applies to both commissioners. The person claiming the invalidity has more power, no matter what side they’re on in terms of political party.”
The Republicans also argued that the law removes an opportunity for bipartisan action. To deal with questionable ballots, Republicans recommended putting them in the same bucket of ballots that were determined to be invalid. This way, either party could contest the determination in court. Judge Rivera observed that this method could “offend the constitution” because the person whose ballot was not counted may never be able to challenge that decision in court.
Oral arguments also raised questions regarding how to handle in-person ballots, which are presumed to be valid and counted. As asked by Judge Rivera, “If we were to decide the presumption of validity fails for mail-in ballots, does that mean the in-person presumption would also have to fail?” Regarding this issue, counsel for the defendants stated, “I fear that might be the next argument, that if this presumption doesn’t apply, that could form a basis for a challenge to the in-person procedure.”
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.
Counties Remove Voting Ballot Drop Boxes
After security concerns were raised, Delaware and Schoharie counties both removed outdoor ballot drop boxes last week. These boxes are not regulated by state law and a bill to regulate their usage is pending in Albany.
CAMPAIGNS
Redistricting Attorney Enters NYC Mayoral Race
Attorney Jim Walden has entered the 2025 race for New York City’s mayor. Walden was the plaintiff’s attorney in Nichols v. Hochul, the lawsuit that challenged the State Assembly district lines as unconstitutional following the decision in Harkenrider v. Hochul, the successful challenge to the state congressional and state senate map approved by the legislature. The Nichols case resulted in having the state Independent Redistricting Commission and state legislature eventually enact a lawful assembly map.
AROUND THE NATION
UTAH: Last Thursday, the Utah Supreme Court issued its 53-page opinion regarding its decision last month to uphold a district court judge’s decision to invalidate Amendment D, which would have given the Utah Legislature the power to repeal or alter voter-approved ballot initiatives.
The proposed constitutional amendment, placed on to the November ballot after the legislature called a special session in August, would have “effectively invalidated” the court’s recent interpretation of the state constitution. In July, the court ruled that the Utah Constitution protects “government reform” initiatives from being overridden by lawmakers “without a compelling government interest,” and that the legislature’s power to amend initiatives has its limits.
As stated by the court, the legislature “has the duty and the obligation to accurately communicate the ‘subject matter’ of the proposed amendment to voters and to publish the text of the amendment in a newspaper in each county two months before the election. It has failed to do both.” The amendment will remain on the ballot to ensure Utah can meet its election deadlines, but it will now be considered “void” and will be “given no effect.”
Amendment D could be pursued by Utah lawmakers in the future, but that remains unclear. This decision clarifies that any “future iteration” of Amendment D must contain accurate ballot language that appropriately describes its function and purpose.
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.