This week- Newburgh VRA Case Action Stayed, NYC Mayoral Case May be Discontinued, Appellate Divsion to Hear Appeal in Voting Machines challenge, State Senate & Assembly to Consider Election Law Bills, Around The Nation: Louisiana, Upcoming Events
IN MEMORY OF CHARLES B. RANGEL, A MEMBER OF CONGRESS FROM NEW YORK (1971-2017)- LONGTIME DEAN OF THE NEW YORK CONGRESSIONAL DELEGATION AND THE “LION OF LENOX AVENUE”
by Jeff Wice, Jarret Berg, and Alexis Marking
LITIGATION
Westchester: Clarke v. Town of Newburgh (Voting Rights Act)- Action Stayed Pending Appeal
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 20th, the non-jury trial for this matter was scheduled in front of the Westchester Supreme Court Justice Nancy Quinn Koba to begin on July 21st.
On May 20th, counsel for the Town of Newburgh filed a proposed order with the Orange County Supreme Court. This order would require the plaintiffs to demonstrate why an order staying the proceedings (pending motions in the Appellate Division, Second Department) should not be entered.
On May 20th, the Town filed a memorandum in support of the proposed order. The memo argues that this court has the “inherent power” to stay these proceedings while an appeal is pending in the Appellate Division. The memo also asserts that this court should exercise its “broad” inherent powers and stay trial proceedings pending the resolution of the appeals because “doing so will economize both the parties’ and the Court’s resources without prejudicing Plaintiffs in any way.”
On May 21st, Justice Koba declined to sign the proposed order to show cause.
On May 23rd, the Appellate Division, Second Department granted the Town’s motion for leave to appeal, stating that “questions of law have arisen, which, in our opinion, ought to be reviewed by the Court of Appeals.” The following question was certified to the New York Court of Appeals: “Was the opinion and order of this Court dated January 30, 2025, properly made?” Additionally, the Court granted the Town’s motion to stay all proceedings in this matter pending hearing and determination of any appeal to the Court of Appeals.
Appellate Division, Third Department: Common Cause NY v. Kosinski (voting machines)
In Albany on Thursday, the Appellate Division (3rd Department) will hear an appeal in Common Cause NY v. Kosinski, a challenge seeking to prevent ExpressVote XL voting machines from being used in New York. The case focuses on permitting a touch-screen voting machine with a barcode system to be trusted to properly record accurate votes in the same way as counting with paper ballots.
The use of the ExpressVote XL system was approved by the state Board of Elections in 2023 after the Board certified the machines following a series of tests. Monroe County has already used the machines after spending $12 million for 1000 machines. The county first used the machines in the race for mayor of Pittsford where 1000 people went to the polls and the winner was declared the victor by a one vote margin.According to a report in the Albany Times Union by Emilie Munson, Eric, Suffolk, Orange, and Nassau counties have also either considered or plan to use the ExpresVote XL systems while Albany County declined to do so.
The challenge against using the machines was brought by Common Cause NY where, according to the Times Union, Susan Lerner, executive director of Common Cause New York, disputes ExoressVote XL/s security features.
In New York, voters are given the opportunity to check their ballots before submission to verify the ballot’s accuracy. Common Cause NY argues that voters can’t know whether a ballot is accurate from the barcode produced by ExpressVote XL’s system.
The challenge to the use of ExpressVote XL’s machines was rejected in state Supreme Court last year because the judge found the challenge to be too premature as the machines had not yet been used.
Efforts are also underway in the state legislature to ban the use of ExpressVote XL’s machines.
Eastern District of New York (Brooklyn): Walden v. Kosinski et al. (NYC Mayoral Race)
This case involves independent New York City Mayoral candidate’s Jim Walden’s effort to run on an Independence Party line despite the fact that state law prohibits the use of the word “independence” as a party name. On May 21st, the Court ruled that N.Y.C. mayoral candidate Jim Walden had failed to file any amended complaint by the deadline. Previously, on April 25th, the Court had directed Walden to file his amended complaint within fourteen days from receiving a decision on appeal. Walden received this decision on May 5th, which meant his amended complaint was due by May 19th. Since this deadline passed without any filing, the Court ordered (1) the defendants to serve their originally proposed motion to dismiss by June 4th; (2) Walden to serve his opposition by June 18th; and (3) the defendants to serve their reply by June 25th.
However, on May 22nd, Walden’s attorney filed a letter and requested fourteen days from the Second Circuit’s opinion to amend the existing complaint before proceeding with the briefing schedule. Although the Second Circuit ruled on Walden’s appeal, the Court has not yet released the reasoning behind its decision. For this reason, Walden’s counsel requests time to review the opinion upon its release to determine whether or not the complaint can be amended to state a viable First Amendment and/or Equal Protection claim.
If counsel determines there is no viable basis to amend, then Walden will “voluntarily discontinue the case, consent to a final judgment, or take some other action that quickly terminates further litigation.” If the complaint can be amended, then other actions would need to be taken to continue this case with a new briefing schedule.
LEGISLATION
Senate and Assembly to Advance Election Law Changes, Including Several Notification Safeguards, Ahead of End-of-Session Push
With the end of Albany’s scheduled legislative session in early June approaching, this Wednesday the Senate Elections Committee will consider and advance seven bills and the Assembly Election Law committee will consider 11 bills (click here and then select “Assembly Agenda” from the “Agenda” dropdown menu, to find the full meeting agendas).
The Senate package includes several consumer-protection-styled notification proposals, like a safeguard that warns voters about New York’s closed primary system during voter registration–the point at which New Yorkers have an opportunity to enroll in a political party or register as an unaffiliated “blank” (S3596A (Rivera)). “Blanks” are not permitted to vote in New York’s closed major-party primaries; existing voters may later enroll in a party after registering, but the law requires this enrollment to occur more than four months ahead of June primaries, to be effective for that year’s primary. Another bill requires adequate notice be sent by forwardable mail (and email, and call or text message if the board of elections has the contact info), to voters whose registrations are being cancelled or placed in inactive status, or where a change of address is received by the Board, as well as the reason for the status change, so the voter is made aware of what’s going on and has an opportunity to address it (S4364 (Comrie)). If successful, this should help keep voting rolls current between elections, protecting rights and reducing voter confusion.
An additional protective measure includes requiring the NYC Board of Elections to timely notify party officials and impacted state and city representatives when the Board learns it will need to change the location of a polling place (S4274A (Kavanagh)). This same proposal is also moving in the Assembly this week (A7618A (Lee)). Such a change may allow these officials to help the Board source alternative voting locations, and then notify their constituents once a new site is designated.
The Senate will also advance a bill requiring the state and local boards of elections to provide a public database of all sample ballots on their respective websites, several days ahead of approaching elections (S6253A (Skoufis)). This same proposal is also moving in the Assembly this week (A6741A (Simone)). As with the prior proposal, recent ‘same as’ amendments coupled with the late-session movement in each house may indicate that the two houses intend to pass and enact these measures.
The Assembly will also advance a bill passed previously by the Senate this year. The bill changes the party enrollment of any voters enrolled in the now-defunct “Independence” party (A7804 (Walker) / S923 (Skoufis)), as such a party name is now prohibited by the election law (EL § 2-124). These voters will have their enrollment changed to “blanks”.
Additionally, the Senate will advance an election integrity proposal known as VIVA that ensures that voters will always have the option to hand-mark a paper ballot (or use a non-tabulating ballot marking device), in order to guarantee voters can verify the selections on their ballots before they are scanned (S7116 (Cleare)). As localities adopt new voting machines with touchscreen technology that are also capable of printing voters’ selections via machine-readable barcodes or QR codes for scanning and tabulating, this bill ensures that a voter can verify that their ballot actually reflects their preferences, by preserving the human-readable paper ballot. To be effective for upcoming elections, these bills still require consideration by the full Senate and review and passage by the Assembly before lawmakers depart Albany in June.
VOTING RIGHTS ACT PRECLEARANCE
N.Y. Attorney General’s Office Preclearance Updates
281 NYC Board of Elections- poll sites- granted
601 NYC Board of Elections- early voting hours- under review
541 Nassau Co. Board of Elections- poll sites-granted
526 Orange Co. Board of Elections- poll site locations- under review
481 Albany Co. Board of Elections- granted
Numbers refer to submisson numbers
All submissions can be viewed at: https://nyvra-portal.ag.ny.gov/
AROUND THE NATION
LOUISIANA: Plaintiffs in a case involving black Louisiana voters have now filed a report with their proposed remedial legislative maps in federal court. The proposed maps would create three additional majority-Black state senate districts and six additional majority-Black state house districts. These maps were drawn by William S. Cooper, a demographic and redistricting expert for the plaintiffs, based on a report that was filed along with the proposed maps on May 23rd.
UPCOMING EVENTS
NYC Charter Revision Commission
The NYC Charter Revision Commission is considering including a proposal on the city ballot to open its closed primary system to independent voters who currently cannot vote in party primary elections. Public hearing are being held for comment:
- Queens, Weds 5/28: Helen Marshall Cultural Center at Queens Borough Hall, 120-55 Queens Blvd 11415
- Bronx, Tues 6/10: 3rd Floor Café in Building C / East Academic Complex at Hostos Community College, 450 Grand Concourse 10451
- Staten Island, Mon 6/23: Main Hall in Building B at Snug Harbor Cultural Center, 1000 Richmond Terrace 10301
- Manhattan, Mon 7/7: Langston Hughes Auditorium at Schomburg Center for Research in Black Culture, 515 Malcolm X Boulevard 10037
Comments can also be sent to:https://www.nycopenprimary.com/take-action-crc
May 29, 2025 Primary Election Preview
Join Max Politics and FAQ NYC podcasts – Ben Max, Christina Greer, Katie Honan, and Harry Siegel – for a special 2025 New York City primary election preview event with political analysis, special guests, audience participation, and more.
The evening will feature the latest analysis of the Democratic primary for Mayor and other races to watch, reminders about ranked-choice voting, plenty of audience Q&A, and more.
This event is hosted by The Center for New York City and State Law at New York Law School. To attend, register here: https://nyls.wufoo.com/forms/qxmjtbs0nexll7/
June 3, 2025 Manhattan Borough President Candidate Debate
New York Law School’s Center for New York City & State Law is a debate at 8:30 AM with the three Democratic candidates: State Senator Brad Hoylman-Sigal, City Council Member Keith Powers, and Dr. Calvin Sun.
RSVP:
https://nyls.wufoo.com/forms/manhattan-borough-president-candidate-debate/
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.