This week- Appellate Court Upholds Even Year Elections Law, Newburgh State VRA Case, NYC Mayoral Litigation, State Budget, Senate Acts on Legislation, VRA Preclearance Update, Alabama Redistricting. Upcoming Events
By Jeff Wice, Jarret Berg, and Alexis Marking
LITIGATION
The Appellate Division (Fourth Department) has a reversed a lower court ruling and determined that the state can move most local elections to even year voting (when federal and state candidates appear on the ballot. The court ruled one day after oral arguments, rejecting a challenge to the state law filed by several local governments, including Onondaga County. Most of the challenging parties were affiliated with Republican office holders who objected to having local candidates run at the same time as federal and state candidates when voters tend to favor Democrats over Republicans.
The court rejected the argument that there was a state law conflict where state law provides charter counties with the ability to control the structure and authority of county governments.
The court determined that the state constitution provides counties with the right to a “a legislative body elective by the people” and to adopt alternative forms of county government, “but neither of those provisions gives a county exclusive local control over the manner in which local elections will be held or the specific details of each office.”
The state law was approved by Governor Hochul in 2023 that requires that most local elections outside New York City take place in the even year (exempting some city,village, county clerk, sheriff, district attorneys and others whose terms are determined by the state constitution). The challengers argued that the state law was not a “general law” that applies to all counties.
Sponsors of the law argued that holding federal, state, and local elections in even years would boost voter turnout. Opponents claimed that local interests would get less attention than those of federal and state candidates.
Advocates for the law argued the change will boost voter turnout in local elections. Opponents have feared the change will mean local interests will have to compete for attention with more widely covered state and national issues.
Onondaga County plaintiff group has announced that it will file an immediate appeal in the State Court of Appeals. As reported by Luke Parsnow in Spectrum News, “Republican-led challenges to the law have argued that it conflicts individual county charters. Twenty New York counties are chartered, meaning they have locally drafted and approved laws outlining the structure and authority of county government, and there have been three separate amendments in the state Constitution allowing for and protecting counties’ abilities to govern through charters.”
Orange County: Clarke et al. v. Newburgh (NY Voting Rights Act)
In this lawsuit, plaintiffs claim that the town’s at-large election system for Town Board elections has prevented Black and Hispanic residents from electing candidates of their choice in violation of the N.Y. Voting Rights Act.
On May 5th, counsel for the plaintiffs filed a notice of motion in limine (i.e., a pretrial motion that seeks to exclude specific evidence or arguments from being presented at trial). The plaintiffs requested to preclude the defendants’ (“the Town’s”) expert witness, Dr. Brad Lockerbie, from offering opinion testimony as to “legal requirements.”
Also on May 5th, the plaintiffs submitted an affirmation in support of their motion. Counsel argued that Lockerbie’s report is inadmissible for several reasons: (1) the plaintiffs were never given notice nor a report of the Town’s intention to introduce legal expert opinion and testimony; (2) Dr. Lockerbie is not qualified to provide opinion testimony as a legal expert; and (3) Expert opinions regarding legal conclusions are impossible and “the interpretation of a statute is purely a question of law.”
On May 6th, the town filed a letter to the judge regarding the deposition of Scott Manley (scheduled for May 7th). Based on the plaintiffs’ questions at his prior deposition in this matter, the town anticipated that Manley may need to invoke legislative privilege. This privilege protects a state legislator from “compelled testimony or production of evidence in connection with legitimate legislative acts.” The Town submitted an enclosed bench memo addressing this privilege and its application to the issues that may arise.
On May 7th, the town filed a memorandum of law in opposition to the plaintiffs’ motion in limine. The Town argues that the motion is “deeply confused” because Dr. Lockerbie has never attempted to offer an “expert legal opinion” in this case. Instead, the plaintiffs seem to object to Dr. Lockerbie’s observation that Dr. Barreto “failed to explain whether he considered applicable legal requirements when drawing the districts he proposes.” The town argues that the existence of such legal requirements is within the knowledge and expertise of a political scientist, “given that consideration of those requirements is a necessary prerequisite for the drawing of election districts that can actually be lawfully implemented.” Therefore, the town is “happy” to stipulate that Dr. Lockerbie will not offer any “expert legal opinion” at trial.
On May 8th, the town filed a letter with the Orange County Supreme Court and the Appellate Division, stating that trial will begin on May 12th. Since the Appellate Division has not issued remittitur while it considers the town’s pending motion for leave to appeal, the town does not believe that the Supreme Court has jurisdiction to hold this trial. The plaintiffs believe the trial should move forward next week.
On May 9th, the Court ruled on the plaintiffs’ motion in limine, stating that the plaintiffs failed to establish intentional conduct by the town that would support preclusion at trial of Dr. Lockerbie’s response report and/or testimony. The parties agreed on a date for disclosure of Mr. Lockerbie’s response, and it is a direct refutation of the second report by Dr. Barreto (the plaintiffs’ expert). Thus, the plaintiffs failed to establish prejudice, which is required for this type of preclusion.
Additionally, the response does not impinge on the Court’s authority to decide matters of law because Dr. Lockerbie does not try to define the law; he only refers to the law as it concerns electoral mapping. The town is “well within its rights” to defend against the plaintiffs’ complaint by trying to establish whether a reasonable alternative plan has been presented by Dr. Barreto. For these reasons, the motion was denied.
Eastern District of New York (Brooklyn): Walden v. Kosinski et al. (NYC Mayoral Race)
On May 5th, the U.S. Court of Appeals for the 2nd Circuit affirmed the federal eastern district court’s order from April 1st, which denied mayoral candidate Jim Walden’s motion for a preliminary judgment. This order was appealed by Walden to the U.S. Court of Appeals.
Walden’s motion for a preliminary injunction intended to enjoin officials of the New York State Board of Elections and New York City Board of Elections from prohibiting him from using the word “Independence” or “Independent” in the name of an independent body “for which Walden seeks to run as a prospective nominee for the 2025 New York City mayoral election.” Walden alleges that the election provisions (which prohibit him from using these words) violate his First Amendment rights to speech and association.
To qualify as a mayoral candidate for the 2025 election (via the nomination of an independent body), Walden must submit a specific number of signatures from registered voters on an independent nominating petition and file the petition with the City Board between May 20th and May 27th. This deadline is why Walden requested a preliminary injunction.
On April 1st, the district court denied Walden’s motion. The district court’s memorandum was then published on April 5th, which explained that Walden failed to demonstrate “a likelihood of success” on his First Amendment claim or show irreparable harm if the requested injunction was denied. The U.S. Court of Appeals now affirms this order for “substantially the reasons” provided by the district court. An opinion explaining its reasoning will be released soon.
LEGISLATION
State Budget Includes Campaign Finance Changes, Governor and Lt. Governor to Run Together in Primary
The new state budget adopted last week provides for $114.5 million for the state’s public campaign financing program. It also included a change to permit the first $250 of donations up to $1,050 from district constituents to be matched with state dollars. Under the previous law, matching funds were provided for donations from candidates’ constituents of $250 or less. The budget also includes funding to improve the state’s voting systems. Good government groups noted that the new provision was enacted without public comment or involvement. In another budget add-on, candidates for governor and lieutenant governor will run together in party primaries, ending the practice where the two candidates run separately in the primary and then together in the November general election.
Senate Elections Committee Advances Vote By Mail Cleanup and BOE Reforms, Rejects GOP Photo ID
Last week, the Senate Elections Committee took up 11 bills including a proposal to streamline New York’s parallel vote-by-mail and absentee ballot programs, which–if enacted–will save boards of elections resources and protect voters from minor technical errors, omissions, or confusion that could hinder their ability to vote (S6995 (Gonzalez)). The bill is the first effort to harmonize the election law since the Court of Appeals upheld the Empire State’s universal vote by mail option in 2024 in a 6-1 decision. This would allow local boards to use the same envelopes for both types of ballots, saving on costs and eliminating administrative confusion. The clean-up bill protects eligible voters who submit otherwise-valid absentee ballot requests but fail to indicate why they are requesting the ballot (as was traditionally required, Election Law § 8-400). Instead, these “no-excuse” applications will be processed as early mail ballot requests, which are available to any voter (Election Law § 8-700). This avoids rejecting and spoiling the application, and potentially disenfranchising the voter in a bureaucratic paper chase, when administrators already have all the information needed to process the request. Registered voters will be able to request mail ballots once for all elections in the two-year cycle, saving staff the time and expense of processing recurring requests. Finally the bill improves access to mail ballots for military and overseas voters.
Senate Elections also advanced three board of elections modernization and professionalization bills widely supported by the Let NY Vote Coalition and good government advocates. To improve capacity and administration at the 58 local election boards, the Senate advanced a bill requiring proportional minimum staffing levels based on the number of locally registered voters (S843 (May) / A6069 (Hunter)). To improve the quality and performance of the party-selected local election commissioners, the Senate advanced one bill directing the State Board of Elections to establish the first professional qualifications for such commissioners (S5452 (Comrie)), and another to empower the State Board to remove a commissioner for incompetence or misconduct (S570 (May) / A2347 (Gallagher)).
In addition, the Elections Committee advanced a campaign finance transparency measure that would require political committees to better identify donors and transferors contributing over $99. Filings reporting a campaign loan would identify the source of funds (S1910 (Rivera) / A3092 (Carroll)). The Senate also advanced a bill to prevent courts from splitting the ballot, in the event election litigation again leads a court to move a primary (S6799 (Jackson) / A7168 (Bichotte Hermelyn)). In 2022, a major redistricting dispute led courts to add an August primary solely for State Senate and Congressional contests, splitting them off from the usual June primary. All of these bills now await consideration by the full Senate and require passage by the Assembly before lawmakers depart in June to be effective.
After one presentation from the Attorney General’s office reviewing the initial rollout of the New York Voting Rights Act’s (NYVRA) pre-clearance submissions and another from GOP State Board of Elections Commissioner Anthony Casale regarding voter ID policies, the Committee rejected two bills on party line votes that would have replaced New York’s signature-based voter check-in policy with a requirement that voters present a current government-issued photo ID when voting, forcing duly registered voters who cast provisional ballots for failing to show photo ID to appear within three days with a qualifying photo ID to avoid having their timely-cast ballot suppressed. Were the measures to pass, New Yorkers voting by mail would need access to a printer in order to include a copy of their photo ID with their returned ballot (S1885 (Walczyk) / A1927 (Slater) and S2574 (Ortt) / A3302 (Durso)). Neither Commissioner Casale, nor the sponsors presented data or evidence of voting irregularities to justify the measures proposed. Instead, they point to various transactions and interactions (like buying or selling alcohol, or visiting a hospital or school) that require identification.
Also on Tuesday, the NYS League of Women Voters and the BIPOC Democracy Table held a voter advocacy day, meeting with lawmakers to push for enactment of the Democracy During Detention Act (DDDA); a bill shifting contests for city offices and judges, county registers, sheriffs, clerks, and DAs to even-year elections; and, the Democracy Preservation Act, which bans political spending by foreign-influenced businesses (A1258) and has already passed the senate. DDDA would ensure that the thousands of eligible citizens detained pretrial or for low-level offenses who have not lost their right to vote can effectively register and cast a ballot. Elections officials in populous counties would be required to coordinate with corrections facilities to schedule voter registration visits ahead of elections and deploy either a poll site or a bipartisan absentee ballot collection program, akin to what is done in other congregate settings, like nursing homes and VA hospitals.
The NYS League of Women Voters also supports a bill directing the State to join a national voter list maintenance organization such as ERIC which has passed the Senate unanimously for years but requires review in the Assembly (A3649B (Taylor). The BIPOC Democracy Table supports an ‘Enhanced Automatic Voter Registration’ (EAVR) proposal that has already passed the Senate. Proponents of EAVR want to ensure that non-citizens are properly filtered out of the registration workflow by the DMV and other agencies using citizenship verification. Under that proposal, Individuals interacting with state agencies with indeterminate citizenship would be required to affirmatively indicate eligibility and select registration. With the state budget process concluding over a month late and lawmakers scheduled to depart Albany for the rest of 2025 on June 12, the scramble is on to enact various election improvements and voter protections so they can be implemented in time for upcoming contests.
VOTING RIGHTS ACT PRECLEARANCE
N.Y. Attorney General’s Office Preclearance Updates
441 Rockland BOE- Early Voting/Election Day poll site locations—under review
321 Westchester BOE- election Day pollsite locations- granted
421 Monroe BOE—early voting poll site locations- under review
301 New York City BOE- early voting/election day poll site locations- under review
441 Rockland BOE-early voting/election day poll site locations—under review
481 Albany County BOE- early voting/election day poll site locations- under review
All submissions can be viewed at: https://nyvra-portal.ag.ny.gov/
AROUND THE NATION
Federal Court Faults Alabama Map for Racially Discriminatory Intent
After completing a full trial, a federal court in Alabama found that Alabama’s 2023 congressional map violated Section 2 of the Voting Rights Act and was enacted with racially discriminatory intent. This ruling ensures that the Alabama map must include two districts where Black voters have the opportunity to elect candidates of their choice (like the map ordered by the court in October 2023) for the remainder of the decade. The court-drawn map used in the 2024 elections resulted in the election of two Black representatives to Congress for the first time in history.
The court’s decision follows several challenges where voters argued that Alabama’s congressional districts violated Section 2 of the Voting Rights Act by diluting Black voting power. The U.S. Supreme Court agreed in a 2023 ruling that the plaintiffs were likely to prevail on that claim, and in its decision in Allen v. Milligan, required the creation of a second opportunity district that resulted in the current map. Despite earlier decisions, Alabama insisted on a trial of and once again the Court ruled against its congressional map as unfairly harming Black voters. In this recent decision, the court ruled that Alabama had intentionally discriminated against its Black citizens in enacting the map.
UPCOMING EVENTS
May 13: New York Law School’s Center for New York City & State Law – 198th CityLaw Breakfast ft. NYS Comptroller Thomas DiNapoli – Register here.
May 16: New Yorkers for Inclusive Democracy- Defending Voting Rights
New Yorkers for Inclusive Democracy in partnership with City & State will be holding a conference Democracy in New York: Defending and Expanding Voting Rights on May 16.
This forum will address voting rights in New York State by convening elected officials, advocates, legal experts, and community leaders to discuss barriers to voting, policy solutions and strategies to strengthen democracy for all New Yorkers.
Key topics will include Automatic Voter Registration (AVR),the Democracy During Detention Act (DDDA), and voter outreach registration initiatives. To register, go to https://bit.ly/3GBikO2
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, and Alexis Marking.