Voter Access, Election Integrity

By Kenneth Moltner

Member of the Board of Directors, Government Justice Center

New York State’s long-standing voting rules, campaign finance guidelines, and election schedules have been modified significantly in the past 20 years. Although New York voters in 2021 rejected constitutional amendments proposed by lawmakers to rewrite election rules, other changes they have enacted in recent years could pave the way for still more radical changes disrupting the always-delicate balance of voter access, ballot security and election fairness.

The current era of election law changes began in 2002 with passage of the federal “Help America Vote Act,” which prompted New York to end its long-standing reliance on mechanical-lever voting machines and shift to computer-scanned paper ballots, a transition that began in 2003.¹

More significant—and costly—moves by New York lawmakers would follow.

THE STATUS QUO

In 2019, New York State enacted a series of changes in its election calendar, including nine days of early voting² and the establishment of a single June primary date for both state and federal elections.³

In response to the COVID-19 pandemic starting in the spring of 2020, Governor Cuomo issued an emergency order suspending and modifying a wide range of state laws, including those governing elections. The most significant, in terms of its measurable outcome, affected the rules for absentee voting.

Prior to the pandemic, the casting of absentee ballots as an alternative to in-person voting has been treated in New York as an exception permissible only under limited conditions.⁴ Article II, Section 2 of the state Constitution authorizes the Legislature to “provide a manner” for the casting of ballots when voters are either “absent” from their home county on election day or “unable to appear personally at the polling place because of illness or physical disability.”

However, notwithstanding the constitutional provision, Governor Cuomo’s pandemic emergency order allowed New Yorkers to apply for absentee ballots in primary and general elections without having to cite any justification or excuse. The unsurprising result: while absentee ballots typically made up four to 10 percent of the total cast in contested races in years prior to the pandemic, that percentage jumped sharply in 2020—to record levels of more than 20 percent in many jurisdictions, including 24 percent of all votes cast in New York City.

Meanwhile, via joint resolutions of the Assembly and Senate, the Legislature proposed permanent fundamental changes to both election rules and the decennial legislative redistricting process via amendments to the state Constitution. Submitted for voter approval in the November 2021 general election, the amendments included:

Proposal 1, which would have weakened the bipartisan apportionment and redistricting reforms approved by voters in 2014.
Proposal 3, which would have deleted the Constitution’s requirement that citizens be registered to vote at least ten days before an election, allowing the Legislature to enact different deadlines.
Proposal 4, which would effectively have authorized an unlimited absentee ballot option for all voters in all elections, without requiring any justification or excuse.

On election day, the three proposals were rejected by pluralities of 54 to 56 percent.

Just two months after no-excuse absentee balloting had been rejected by voters, and nearly two years since the start of the pandemic, Governor Hochul cited the continuing spread of COVID-19 as justification for signing an election law amendment⁵ that extended, through 2022, access to absentee ballots to anyone worried about the “risk of contracting or spreading a disease that may cause illness to the voter or other members of the public.” That change and others in the amendment were unsuccessfully challenged in subsequent lawsuits filed in state Supreme Court by, among others, the state Republican and Conservative Party chairs. At least some absentee ballots cast under the more permissive rule were counted in New York’s November 8 elections.

A few months later, in June 2022, the governor signed the John R. Lewis Voting Rights Act of New York,⁶ the stated purpose of which was to “ensure that eligible voters who are members of racial, color, and language-minority groups shall have an equal opportunity to participate in the political process of the state of New York, and especially to exercise of the elective franchise.”⁷ Under the new law, ranked-choice voting, which had been implemented in New York City beginning with the June 2021 primary election, would qualify as an “alternative” method of election that a court could impose on the state upon finding a violation of that act.⁸

In a spring 2020 move with a delayed impact, the Legislature and Governor Cuomo enacted a voluntary public campaign finance program⁹ under which candidates for state legislative and statewide offices can receive multiple taxpayer-funded matches of small donor contributions, starting with legislative races in 2024 and statewide elections in 2026.

Amid these significant changes, one key aspect of New York election law was left unchanged: New Yorkers are not required to provide proof of identify when they show up at the polls on election day, unless voting for the first time without having provided valid identification at the time of registration. The standard measure for confirming a voter’s identification remains a simple visual comparison of signatures.

On another election-related issue, Governor Hochul used her first State of the State address in January 2022 to express support for a two-term limit for statewide elected officials, which would require amending the state Constitution. This was a purely symbolic stance, however, since (other than at a constitutional convention) proposed amendments can only be initiated by joint legislative resolutions of the state Assembly and Senate, with no involvement by the governor. Hochul’s term-limit proposal was ignored by the Legislature, where majority conferences have never given serious consideration to any such proposed limitation for any state office.

MOVING FORWARD

Advocates of New York’s recent series of election law changes continue to push for more changes they say are needed to make it easier to vote—although there is scant evidence that the Empire State’s previous laws were suppressing voter access to any degree.

Such changes, however, also make it easier for all sides in political campaigns to exploit the rules, undermining the equally necessary and salutary right of election integrity, or needlessly expending citizen tax dollars.

As priority steps to address such problems, lawmakers should statutorily:

Require voters to provide proof of identification. Thirty-five other states require voter I.D. or allow election officials to request it at the polling place.^{¹⁰National Conference of State Legislatures (“NCSL”), https://www.ncsl.org/research/elections-and-campaigns/voter-id.aspx.} Such a rule is even more defensible considering that New York State makes available to all residents a Non-Driver Photo ID card for a person with lawful status in the United States^{¹¹dmv.ny.gov.}, which would need to be augmented by proof of citizenship to vote, and other forms of identification for other purposes.
Reaffirm and strengthen existing absentee balloting restrictions. Barring a constitutional amendment, the law should be amended to permanently disallow issuance of absentee ballots for any reason other than (a) election day absence from the voter’s home county, or (b) illness or physical disability making it impossible for the voter to appear at the polling place in person. It should never again be possible for the Legislature to authorize what amounts to no-excuse absentee balloting based on the supposed risk posed by a public health “emergency” that, as reflected by the governor’s own policies on issues such as indoor masking, had rendered no-excuse absentee voting gratuitous well before Election Day.

Prevent ballot harvesting. The early stages of the state’s 2020 general election campaign produced two instances of alleged efforts by both Democrats and Republicans to exploit the ambiguity created by current law combined with easier absentee ballot requirements.^{¹²The state Democratic Committee acknowledged having mailed partially pre-filled absentee ballot applications to an unspecified number of Democratic voters [see “‘Dirty tricks’: Hochul boosters accused of ‘deceit’ in pre-filled ballot applications,” New York Post, Sept. 12, 2022]. Also in September, a Republican elections commissioner in Rensselaer County was indicted on federal charges of unlawfully using the names and birth dates of voters to apply for absentee ballots submitted to the New York State Board of Elections web site back in 2021 [see U.,S. Attorney’s Office press release at https://www.justice.gov/usao-ndny/pr/rensselaer-county-elections-commissioner-indicted].} After the November election, a Staten Island grand jury issued a report citing “numerous instances of ballot harvesting fraud in a race for City Council last year—including a ballot submitted on behalf of a dead person and signature fraud involving dozens of other absentee ballots,” as the New York Post^{¹³“Grand jury finds numerous instances of ballot fraud in NYC council race on Staten Island,” New York Post, Nov. 23, 2022. https://nypost.com/2022/11/22/grand-jury-finds-numerous-instances-of-ballot-fraud-in-nyc-council-race-on-staten-island/} The grand jury reportedly recommended election law reforms to curb abuse of the absentee ballot application and counting process.^{¹⁴“Staten Island grand jury calls for election law changes after finding alleged fraud in ‘21 race,” Staten Island Advance, Nov. 22, 2022. https://www.silive.com/politics/2022/11/staten-island-grand-jury-calls-for-election-law-changes-after-investigating-fraud-charges-in-21-race.html} In general, the remedy for all such cases would be an election law provision expressly forbidding third parties from submitting an absentee ballot application for any voter, with criminal penalties for violations.
Scale back the nine-day early voting period. Studies have found that early voting does not boost voter participation.^{¹⁵The Cost of Progress for New York’s Voters, May 2018 (the “CU Report”), Appendix B (citation omitted, bolded heading in original). Also, Heritage Foundation, “The Cost of Early Voting” 2017 https://www.heritage.org/election-integrity/report/the-costs-early-voting).} A voting period stretching over nine days ties up space at schools and other public facilities commonly used as polling places. It’s also costly: the state Budget Division allocated $10 million for the initial round of early voting in 2020, and a Citizens Union study found that early voting will cost New York taxpayers $85.4 million over ten years.^{¹⁶CU Report, p. 18 and Appendix B.} A less costly alternative, addressing the concerns of those whose work schedules prevent in-person voting on Tuesdays, would be a modified schedule allowing early voting on the Friday and Saturday preceding Election Day.
Repeal the John Lewis Voting Rights Act. The law is deeply flawed. For example, criteria for judging the validity of existing voting methods include “the extent to which members of the protected class have been elected to office in the political subdivision”—a result-oriented standard that encroaches on the bedrock principle that the propriety of an election is determined by its procedural fairness, not “who wins.” The law is impermissibly ambiguous (by, for example, prohibiting any procedure that “may enhance the dilutive effects of the election scheme”), overly broad (giving legal standing to “any … organization whose membership includes … members of a protected class, [or] organization whose mission, in whole or in part, is to ensure voting access and such mission would be hindered by a violation of this section”) and impinges on legislative authority (by, for example, allowing a court to “reasonably increase the size of the governing body” and implement “additional means of voting such as voting by mail” as remedies for violations).^{¹⁷Chapter 226 of the Laws of 2022.}
Reject public campaigning financing. The stated purpose of such laws is usually described as reducing the role of big money by multiplying the impact of small donors. But the New York City system is hardly an encouraging precedent–at best it might be described as a mixed blessing, the main beneficiaries of which have been political consultants. A far better—and less expensive—alternative would be to boost transparency through strengthened campaign finance disclosure requirements, including mandatory weekly online updates of campaign finance reports beginning at least four weeks before start of voting, and daily updates starting the day before the early voting period through primary or election days. In addition, state law should bar the use of campaign funds to pay candidates’ personal expenses. And to dispel Albany’s thick cloud of “pay to play,” state law should prohibit campaign contributions by individuals doing business with the state.
Create a path for limited citizen initiative and referendum. Twenty-six states have some form of I&R which, experience elsewhere and in New York City suggests, is the only route by which New Yorkers will ever have an opportunity to decide on whether to establish term limits for state officials. A balanced model can be found next door in Massachusetts, which provides for review of citizen petitions by the attorney general, followed by legislative input.^{¹⁸See Amendment Article 48 to the Massachusetts Constitution and www.mass.gov.} The Massachusetts process is more thorough and deliberative than, for example, California’s—which allows for a confusing plethora of ballot proposals funded by interest groups end-running the normal legislative process.^{¹⁹oag.ca.gov/initiatives.}

Kenneth M. Moltner has practiced matrimonial and family law for 18 years and has been a litigation attorney for over 30 years. He is a member of the Board of Directors of the Government Justice Center.