NY Elections, Census and Redistricting Update 2/10/25

 

By Jeff Wice, Jarret Berg, Alexis Marking & Michael Athy

This week: Upcoming Voter Registration/Change Deadline, Local Courts Resume Hearing State Voting Rights Challenges. Attorney General Preclears Local Poll Changes, Budget Hearing Proposals, Senate Elections Committee Meets; Congressional Election Calendar Change; Electing N.Y.s Lt. Governor, Alabama Redistricting Trial

Voter Registration and Party Change Deadline is February 14^th

Eligible New York voters must be enrolled in a political party to participate in a party primary this year and in the future. The deadline to register is Frida, February 14^th. You can review your voter party enrollment here: https://voterlookup.elections.ny.gov/

You can change your enrollment here: https://elections.ny.gov/register-vote

N.Y. VOTING RIGHTS ACT LIGITATION

Orange County: Clarke et al. v. Newburgh

On January 30th, the plaintiffs’ counsel filed a letter with the Orange County Supreme Court judge in response to the Appellate Division, Second Department’s decision. The letter requested a conference as quickly as possible to discuss a date for trial.

On January 31st, a court notice announced that a trial scheduling conference would be held on February 4th. The notice also notified counsel to be prepared to address any remaining discovery, expert disclosure, and “other aspects of the case remaining before trial can proceed.” Counsel was further notified to prepare for discussion of trial dates, witnesses, documentary/electronic evidence, duration of trial, and other aspects that affect scheduling.

On February 3rd, the Town of Newburgh and its Town Board filed a letter with the judge. This letter “respectfully submitted” that it was premature to set any deadlines or trial dates for three reasons.

First, the Appellate Division, Second Department has yet to issue remittitur, so this court currently lacks jurisdiction. Second, the Town intends to move for permission to appeal to the New York Court of Appeals. The defendants intend to also request that the Second Department refrain from issuing remittitur until the issues on appeal (if granted permission to appeal) are fully resolved. Lastly, any additional case deadlines must account for time needed for the defendants’ submission of their supplemental expert report(s) and the deposition of the plaintiffs’ expert, Dr. Barreto, regarding the addendum to his expert report.

Erie County: Young v. Town of Cheektowaga

On January 30th, New York’s Assistant Solicitor General Beezly Kiernan informed the supreme court of the Appellate Division, Second Department’s decision in Clarke v. Newburgh. The Court upheld the constitutionality of the NYVRA’s vote dilution provisions against the Town of Newburgh’s facial equal protection challenge. The Court also held that Newburgh had failed to show that its compliance with NYVRA provisions would violate the Equal Protection Clauses of the New York and U.S. Constitutions. Kiernan states that because this decision is the “only appellate authority on the facial constitutionality of the NYVRA’s vote dilution provisions,” the opinion is binding on this court.

On January 30th, Gary Borek (counsel for plaintiff Kenneth Young) also filed a letter with the judge about the Clarke decision. Borek addresses the reasons why the Appellate Division, Second Department affirmed the trial court’s decision, which held that the resolution passed by the Town of Newburgh was not a compliant NYVRA resolution (in relation to the safe harbor provisions). Borek states that the Second Department’s opinion is relevant because the Town of Cheektowaga claims that it had enacted a compliant NYVRA resolution which gave the town protection through the safe harbor provision. Similarly to Kiernan, Borek asserts that this opinion is the only appellate authority on the NYVRA safe harbor provision and is thus binding on this court.

Westchester County: Serratto et al. v. Town of Mount Pleasant

On January 23rd, a letter was filed with the judge on behalf of the plaintiffs and defendants (the “parties”) requesting that the court (1) extend the stipulation entered by the parties on November 21, 2024—which stayed the case pending a decision in Clarke v. Newburgh—and (2) adjourn the requirement for the parties to appear on January 27th until the Second Department issued its decision. Once a decision has been issued, the letter stated that the parties will contact the court to schedule a conference to discuss the future of the matter.

On January 24th, the parties filed a stipulation with these requests. The stipulation extended the stay until March 13th and rescheduled the parties to appear on this date instead of January 29th.

On January 28th, the judge signed and ordered this stipulation.

On January 30th, the plaintiffs filed a letter with the judge in light of the Appellate Division’s decision. The plaintiffs requested that the court schedule a conference as quickly as possible to discuss the defendants’ outstanding motion for summary judgment and a date for oral argument.

On January 31st, counsel for the defendants submitted a letter in response. The defendants state that it is likely the Town of Newburgh will appeal the Second Department’s decision to the New York Court of Appeals, and that one of the parties may ultimately seek further review by the U.S. Supreme Court. The defendants suggest that this matter continue to be stayed pending the outcome of these potential appeals because they will have a “meaningful impact” on this case. The parties have already scheduled a status conference for March 13th and can update the court on the status of those appeals then.

On January 31st, counsel for the plaintiffs responded to the defendants’ request. The plaintiffs submitted that any further delay would violate Election Law § 17-216, which states that NYVRA cases are “subject to expedited pretrial and trial proceedings and receive an automatic calendar preference.” Furthermore, this matter was ready for argument on summary judgment motions in September. The plaintiffs may still be entitled to such relief even though the Appellate Division’s decision has largely eliminated the possibility of summary judgment in favor of the defendants. If summary judgment is not appropriate for either party, “the matter should be tried forthwith.”

Plaintiffs’ counsel further state that the defendants have no argument for delay based on further appeals in Clarke v. Newburgh. There is no route to the Court of Appeals other than leave from the Appellate Division as a matter of law. Robert Spolzino (the author of this letter) states that in his experience, the Appellate Division is “highly unlikely” to grant leave to appeal where the Court has disposed of the appeal in an “extensive written opinion.”

As a result, the plaintiffs renewed their request for the court to schedule a conference as quickly as possible to schedule a date for oral argument of the pending summary judgment motion.

ELECTION LAW

Federal Eastern District of New York (Brooklyn): Walden v. Kosinski et al.

On January 31st, a motion was filed by the New York City Board of Elections making a statement of no position and requesting to be excused from participation in this matter.  In this case, mayoral candidate Jim Walden is seeing to use “independence” as a party name in the mayoral election.

N.Y. Attorney General Preclears Voting Rights Act Submissions

The preclearance provisions of the New York voting rights act went into effect last September. Under the law, a number of local governments are required to submit any election law change to the Attorney General’s office before the new change of law can be implemented. Last week, the Attorney General’s Civil Rights Bureau announced that a Westchester County poll site change has been preliminarily granted. Last year, the first preclearance submission was approved after Monroe County submitted a request to move a poll site. One additional submission from the Albany City School Districting requesting approval for a poll site change is still pending review.

State Senate to Advance Nearly a Dozen Election Law Changes as Republicans Cry Foul Over Proposed Special Election Delay to Replace Rep. Stefanik 

On Monday, the State Senate Elections Committee will meet to advance 11 bills, many of which have passed the chamber in recent years but have stalled in the state Assembly. This includes more technical changes like clarifying the definition of “margin of victory” that is used to trigger a full hand recount of ballots in a close contest (S417) or a bill to categorically prohibit locating early voting sites in public schools (S654) and one to clean up the enrollments of voters affiliated with the defunct and notoriously misleading ‘Independence’ party (S923). The package includes several minor administrative improvements like a bill to raise the modest pay of poll workers, including better comp for attending poll worker trainings (S559); a bill to allow college students registered elsewhere in New York to serve as poll workers where they attend school (S1809); another encourages local election boards to split lengthy all-day poll worker assignments into multiple shifts (S1842).  There’s one proposal to increase election commissioners terms from two-year terms to four (S2050) and another to allow the bipartisan State Board of Elections to remove poorly performing election commissioners for incompetence, misconduct or other good cause. The latter bill would provide the bipartisan State Board of Elections with oversight power that was sorely lacking in the wake of the 2020 General Election’s Brindisi-Tenney close-contest debacle that exposed unlawful, home-brewed, highly divergent administrative practices by multiple counties, and resulted in a DOJ consent decree which found that Oneida County failed to process 2,400 timely-submitted voter registration applications in violation of the federal NVRA (aka the “motor voter” law), before summarily rejecting nearly 1,800 provisional ballots cast by Oneida voters in violation of the federal Help America Vote Act (HAVA).

Other more substantive proposals, like Senator May’s bill permitting counties to deploy three-day early voting locations in addition to traditional early voting sites (which operate for nine days) could greatly improve convenient voter access in both rural and populous areas, giving local officials new flexibility to expand and tailor their early voting plan while conserving county funds. A sweeping proposal to restructure the New York City Board of Elections (S699) has also been reintroduced. This bill would reduce the unwieldy number of partisan lay-person commissioners in charge of New York City elections from ten political appointees from across all five boroughs down to two commissioners of different parties hailing from different boroughs. The proposal clarifies the responsibilities of the commissioners as well as the duties of the executive director, and would improve transparency, professionalism in hiring, and accountability. Finally, a campaign-finance safeguard (S2437) would require that social media influencers disclose when they are being paid by a campaign, and clarifies that political campaigns must disclose such an expenditure in their filings.

Is it “a shameless, brazenly corrupt scheme” or an effort “to ensure efficiencies in elections where possible and maximize voter turnout”? 

New legislation authored by New York’s Democratic Assembly Speaker and Senate Leader to change the election calendar was unveiled Friday evening which would extend the timeframe for the Governor to schedule special elections after a lawmaker vacates their seat early. New York Republicans argue that razor-thin margins in Congress are motivating state Democrats to meddle with the election law. Currently the Governor must act within 10 days of the vacancy. For a congressional seat, the special election must then occur between 70 to 80 days later. If the new policy is enacted, the Governor could postpone and combine special elections with the annual General Election in November. The legislation states that its purpose is to ensure that congressional elections are scheduled “to maximize voter turnout” and conserve local funds, particularly as congressional districts can encompass part or all of several counties, which must each administer the contest.

The maneuver may leave GOP Rep. Elise Stefanik’s upstate 21st Congressional District unrepresented for the bulk of the first year of President Trump’s second term at a time when Republicans have achieved complete control in Washington. Rep. Stefanik carried the district by 24 points in the 2024 General Election (64%-38%). Since the GOP controls the House by a narrow margin of 218 to 215, every seat matters, and two other GOP representatives have already resigned to serve in the administration. The delay could hinder the ability of House Republicans to govern on their own, or to advance specific pieces of President Trump’s agenda effectively, absent near-unanimous House GOP support. The sponsors’ memo accompanying the new legislation justifies the move on the grounds that the existing system “places undue financial and operational burdens on local boards of elections and exacerbates voter confusion and fatigue”, resulting in low voter participation when special elections occur on random dates. In response, New York’s congressional Republicans are calling on newly confirmed U.S. Attorney General Pam Bondi to launch a RICO investigation into what they view as a conspiracy among state and congressional Democratic leaders to delay the election. They also claim the longer delay denies the district’s residents their representation in Congress, labeling the move “a shameless, brazenly corrupt scheme to disenfranchise 750,000 New Yorkers and block President Trump’s agenda.”

The bill is also expected to be taken up by the Assembly and Senate on Monday.

State Budget Hearings Focus on Election Funding

Last week, the Senate Finance and Assembly Ways & Means Committees continued their budget hearings and heard from several advocates for election-related funding, including:

League of Women Voters:

• $10 million for county boards of elections to have the proper resources they need during election season
• Adopt a centralized database to combat misinformation for $51,000
• Expand access to voting while detained programs

Brennan Center:

• Full funding of $114.5 million for the New York Public Campaign Finance Program.
  • $14.5 million for program administration
  • $100 million for matching funds
• Additional funding for New York Local Boards of Elections in order to properly administer elections instead of leaving the funding question to the county level.
  • Need approximately an additional $65 million in funding to properly fund these local boards
  • Must also enact legislation to improve professionalism, transparency and accountability at local boards of elections
  • Urge the state senate and assembly to pass existing bills on local board of election professionalism
• The legislature must pass $2.5 million in order to properly fund the implementation of voting reforms

Democratic Elections Commissioners:

• $10 million dollar aid to locality request in order to fund local election reform implementation at the county level
  • Recommend multi-year grants that don’t expire after one year
  • Electronic poll books need to be upgraded as they are becoming out of date
• New York state should establish an annual funding stream for its local Boards of Elections to assure each county has the resources they need.

Reinvent Albany:

• Approve the Governor’s proposed funding for the NYS Public Campaign Finance Program
  • Do not make any choices that would increase or fail to mitigate the influence of big money in elections
    • Do not allow large donations to be matched with public funds
    • Do not raise qualifying thresholds for the program
    • Do not make further changes to the surplus calculation
    • Do not block the disclosure of candidates selected for audits
• Reinvent Albany supports improving the program in the following ways:
  • Require return of 100% of unused public matching funds to the PCFB by prohibiting de facto transfer of public funds to other committees
  • Move up payout dates for participants in the program
  • Change the surplus calculation so that transfers are not allowed to be deducted from the amount that campaigns must report to the state.
  • Change the due date for the PCFB report from January 1st to February
  • Lower contribution limits
  • Lower participation thresholds
  • Mandate post-election audits for all campaigns
• Provide robust funding for the Board of Elections
  • Match the Governor’s request of $142.4 million in funding

Common Cause:

• Calls for an increased focus on cybersecurity

ELECTION LAW

Second in Command: How New York’s Lieutenant Governor is Chosen

New York’s lieutenant governor position is often overlooked. Serving as the “second-in-command” to the governor, the lieutenant governor’s duties usually consist of filling in as acting governor during times of absence, presiding over the state senate and taking over as governor should the governor become unable to continue serving or resign.

In many states, the lieutenant governor nominee is either selected by the candidate running for governor directly or nominated during a convention by party insiders. New York state currently does not subscribe to either of these methods. In New York, the governor and lieutenant governor are chosen through separate primary elections before running together as a team in the general election, a process which has often led to friction between the governor and lieutenant governor.

During the New York Constitutional Convention of 1938, the governor and lieutenant governor terms were extended to four years each from two and it was determined that they would run for the position together during a general election. However, to this day, the governor and lieutenant governor are chosen during separate party primaries before they run as a team in the general election.

This process opens itself to creating friction between the governor and lieutenant governors in New York. For example, in 1982, during former Governor Mario Cuomo’s first gubernatorial campaign he endorsed State Senator Carl McCall for the lieutenant governor position. McCall, however, lost in the democratic primary to Westchester County Executive Al DelBello. DelBello was famously frozen out by Cuomo, and the friction was so great that DelBello ended up quitting before his first term was complete.

However, this rule was recently challenged in the Skelos v. Paterson case. In 2008, then Governor Eliot Spitzer resigned after a scandal. Then, Lieutenant Governor David Paterson stepped in to take Spitzer’s place and complete his term. This left the question open of who would step in to take Paterson’s now vacant seat as lieutenant governor. Due to the political gridlock of a state senate split 31-31 between Democrats and Republicans, David Paterson invoked Section 43 of the Public Officers Law and appointed civic leader Richard Ravitch to the position of Lieutenant Governor. The next day, State Senator Dean Skelos sued to stop the appointment, arguing that no provision of the New York State Constitution or any other statute provides that a lieutenant governor vacancy can be filled by any means other than an election.

The New York Court of Appeals determined that the lieutenant governor position could be filled by appointment by the governor should a vacancy occur.^[1] This changed decades of precedent where the lieutenant governor was only able to be chosen by election. Since this decision, two lieutenant governors have been appointed by Governor Hochul including Brian Benjamin and later Antonio Delgado (following Benjamin’s resignation following felony charges).

Advocates are calling for additional reforms to the way lieutenant governors are selected such as having the governor and lieutenant governor run together during the primary. Whether these reforms gain traction or not however, remains to be seen.

AROUND THE NATION

ALABAMA: Trial begins today in a “redistricting battle” that will decide Black representation in Alabama’s congressional delegation through 2030. A three-judge panel in the Northern District of Alabama will decide whether the state violated Section 2 of the Voting Rights Act (VRA) when it drew a map with one majority-Black district, despite a court order which required two majority-Black districts.

The defendants will argue that Section 2 cases should only be brought by the U.S. Attorney General. The defendants will also allege that the plaintiffs must prove “intentional discrimination” to assert a Section 2 violation of the VRA and that this section is unconstitutional because it required Alabama to draw another district solely based on race.

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  and the New York City Council. This report was prepared by Jeff Wice, Jarret Berg, Alexis Marking & Michael Athy.