This week- Voting Machine Case Heard by Appellate Court; Action in Mt. Pleasant and Cheektowaga State Voting Rights Cases, NYC Mayoral Election Funds, Upcoming Events, Around the Nation: Alabama
by Jeff Wice, Esha Shah, and Alexis Marking
LITIGATION
Voting Machines: Common Cause NY v. Kosinski (Appellate Division)
On Thursday, May 29, the New York Appellate Division (Third Judicial Department in Albany), heard an appeal in the case of Common Cause v. Kosinski, focusing on the core issue of legal standing and access to judicial relief in challenges to voting machine certification by the State Board of Elections.
The argument centered on whether Common Cause NY’s challenge to the certification of the ExpressVote XL voting system is premature or rather essential for protection of voting rights. The court explored key questions, including what constitutes sufficient legal harm and what remedies may be appropriate.
Common Cause NY argued that if the trial court’s dismissal for lack of standing is upheld, it will prevent meaningful challenges to voting system certifications in the future. The organization claims that the certification itself causes harm because it enables counties to adopt and deploy the voting system. They also highlighted that Monroe County was prepared to purchase the machines, were it not for this ongoing litigation. Waiting until the machines are actually in use, they argued, would unfairly burden voters and create disruption close to election time.
The state countered that Common Cause NY lacks standing because loss of voter confidence is insufficient to meet the legal threshold for harm. They asserted that petitioners must show a specific, personal injury, distinct from that experience by the general public. Since no county has finalized a purchase and no Common Cause member has yet voted using the system, respondents argued that no such injury has occurred.
On the statutory interpretation question, Common Cause NY contended that ExpressVote system violates Election Law § 7-202(1)(e), which requires that voters be able to privately and independently verify their votes. Because the system relies on a bar code that voters cannot read, the group argues that it fails to meet this legal standard. In contrast, the state disagreed, asserting that the law only requires a voter to be able to verify selections via a paper printout, and that the unreadable barcode does not in itself constitute harm.
Finally, the parties debated whether a mandamus to compel the State Board of Elections to rescind its certification of the machines is appropriate. Respondents argued that this would require the agency to violate its own discretion and regulatory process. Common Cause NY maintained that such a remedy is warranted and consistent with regulatory procedures.
The outcome of this appeal may clarify how early and under what circumstances voters or advocacy groups may challenge voting technology decisions before they are implemented.
Westchester County: Serratto et al. v. Town of Mount Pleasant (N.Y. Voting Rights Act)
On May 29th, a letter was filed on behalf of both the plaintiffs and the defendants (Town of Mount Pleasant) to request that the court postpone a scheduling conference for 45 days. This request for adjournment is due to a recent order from the Appellate Division, Second Department in Clarke, et al. v. Newburgh. The Court ordered all proceedings in Clarke be postponed until the New York Court of Appeals issues a ruling. The court approved this request. If th action is still pending in 45 days, the parties shall schedule a conference to discuss future.
The New York Solicitor General, Beezly J. Kiernan, also filed a letter in Young v. Cheektowaga on May 29th to inform the court of the decision in Clarke.
Erie County: Young v. Town of Cheektowaga (N.Y. Voting Rights Act)
On May 30th, counsel for Kenneth Young filed a memorandum in opposition to the Town’s motion to strike the case. Counsel argues that the Town is asking the Court to base its decisions on outdated or inaccurate information about the proposed ward-based voting system. The memo also argues that although the Town abandoned this proposed plan in August 2024, the Town continues to argue that the plan is ongoing. In essence, the Town’s statements attempt to mislead the court and suppress updated facts by requesting to strike them.
Additionally, Young asserts that the new information (submitted on October 7, 2024) is relevant and procedurally appropriate because it corrects the facts on the record and responds directly to the Town’s cross-motion for summary judgment. Since the Town could have responded and elected not to do so, Young also argues the Town has not been prejudiced. As a result, Young asks the court to deny the Town’s motion in the interest of judicial efficiency and fairness.
Kings County: Eric Adams v. New York City Campaign Finance Board (N.Y.C. Election Campaign)
On May 28th, Mayor Eric Adams and his campaign organization filed a lawsuit against the New York City Campaign Finance Board (CFB) in Kings County (Brooklyn) Supreme Court. The lawsuit challenges the CFB’s decision to deny public matching funds (in the amount of $3.4 million) to Adams’ independent re-election campaign.
The CFB operates a program that matches small donations to qualifying candidates with public matching funds. In December 2024, the CFB denied Adams any public-matching funds because of a federal indictment that accused Adams of using “straw donors” to conceal the real sources of his campaign contributions and of accepting illegal foreign donations. The U.S. Department of Justice has dropped these charges, but the CFB has stood firm on its decision because Adams failed to submit requested documentation and engaged in conduct detrimental to the program.
Here, Adams argues that the CFB’s denial of these funds were unjustified after the federal charges were dismissed. The lawsuit also asserts that the CFB’s decision was politically motivated and has unfairly harmed his campaign. Lastly, the lawsuit alleges that the CFB disenfranchised thousands of small donors who may have expected the CFB to match their contributions to Adams.
Although the CFB has not publicly responded to the lawsuit, the CFB has indicated it will review Adam’s eligibility again in July.
VOTING RIGHTS ACT PRECLEARANCE
N.Y. Attorney General’s Office Preclearance Updates
524 Onondaga County Board of Elections- poll site locations- granted
525 Onondaga County Board of Elections- poll site locations- under review
561 Nassau County Board of Elections- poll site locations- under review
441 Rockland County Board of Elections- poll site locations- preliminary grant
621 Erie County Board of Elections- poll site locations- under review
301 NYC Board of Elections- poll site locations- under review
461 NYC Board of Elections- poll site locations- under review
501 Erie County Board of Elections- poll site locations- granted
526 Orange County Board of Elections- under review
Numbers refer to submisson numbers
All submissions can be viewed at: https://nyvra-portal.ag.ny.gov/
AROUND THE NATION
ALABAMA: In ongoing litigation over Alabama’s congressional map, the state announced it will not attempt another redrawing of the map. Plaintiffs have suggested that the court consider putting Alabama back under Voting Rights Ac Section 5 preclearance requirements. To avoid that from happening, the state will leave in place a map that created two effective Black districts.
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: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
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, Esha Shah, and Alexis Marking.