NY Elections, Census and Redistricting Update 6/3/24

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Nassau County Legislature: Coads et al v. Nassau County & NY Communities for Change v. Nassau County

On May 28, non-party county defendant’s expert Dr. Sean Trende filed a memorandum to quash his subpoena in Coads et al, or to fix conditions and for a protective order against his deposition. Trende’s attorneys argue that attorney-client privilege (ACP) and the work product doctrine prohibit the plaintiffs’ questioning him. Trende argues that ACP applies because Trende informed the firm’s legal advice as a redistricting expert and litigation consultant. Further, Trende’s relevant work advised the legislature’s presiding officer (through the Troutman Pepper law firm) in drafting a map for the legislature, may be protected by legislative privilege. Trende’s ultimate social-science conclusions were expressed through public memoranda, which Trende argues can be used instead.

On May 28, counsel for the plaintiffs in NY Communities for Change filed a memorandum in opposition to county defense attorney Misha Tseytlin’s motion to quash his subpoena. Counsel argues that Tseytlin has not made the prima facie showing required because he does not dispute that the plaintiffs seek relevant information. The plaintiffs argue that they seek Tseylin’s deposition because the information sought cannot be obtained elsewhere and because Tseytlin is a fact witness whose testimony is relevant and necessary. Counsel also disputes Tseytlin’s arguments, stating that attorney-client privilege and work-product protection do not apply. The plaintiffs argue that Tseytlin performed non-legal work during the redistricting process and legislative privilege does not apply for Tseytlin to withhold information, and that other applicable privileges have been waived.

Town of Newburgh (Orange County)

In Clarke et al v. Town of Newburgh, the town defendants have filed an answer to the lawsuit and provided affirmative defenses. In the answer, the defendants admit that as of July 2023, approximately 15% of the Town’s population was of Black or African American origin, and approximately 25% of the Town’s population was of Hispanic or Latino origin.

The defendants also admit that the Town Board has not implemented any remedy for the alleged state voting rights act violations and that the town was investigating these allegations when the lawsuit was filed. However, the town also denies that there is any appropriate or necessary remedy or that the plaintiffs are entitled to any relief. The Town asserts that the state voting rights act’s mandatory 90-day safe harbor period had not ended upon the filing of this case.

On May 29, the defendants also filed a notice of constitutional question, asserting that the state voting rights act violates the U.S. constitution’s 14th Amendment, including the “impermissible use of race” allegedly used by the plaintiffs, and Article I, Section 11 of the New York State Constitution.

New Yorkers Can Distribute Water at the Polls Again

As the Gothamist’s Brigid Bergin wrote last Thursday, “Comedian Larry David can now offer water to voters in New York —without breaking the law.”

While the TV character landed in court for handing out water to a Georgia voter, volunteers in New York can now give thirsty voters free water while they wait to vote in the state. In an opinion by Eastern District Federal Court Judge Katherine Polk Failla responding to a lawsuit filed by the Brooklyn NAACP, New York’s longstanding law against free water for voters outside the polls was unconstitutional. The case was Brooklyn Branch of the  NAACP v. Kosinski et al.

The judge determined that “Section 17-140 of the New York Election Law (i) violates the First Amendment right to free speech and expression; (ii) violates the First and Fourteenth Amendments to the United States Constitution because it is impermissibly overbroad; and (ii) violates the First and Fourteenth

Amendments to the United States Constitution because it is impermissibly vague.”  The judge issued a permanent injunction against state election officials from enforcing the water ban again.


Election Bills Move Through Albany

Last week, the Senate passed two bills relating to Boards of Elections.

S.619A would restructure and professionalize the NYC BOE and

S.645A would establish transparent, minimum qualifications for county election board commissioners.

New York State MENA Bill

Legislation is still pending Albany to require state agencies to use separate categories for Middle Eastern and North African (MENA) New Yorkers when collecting demographics data (S.6584B).The bill has passed in the Senate and is awaiting action in the Assembly Rules Committee (A.06219B).The MENA bill would require every state entity that collects demographic data to disaggregate Middle Eastern and North African (MENA) communities from white demographics. Approximately 280,000 people live in MENA communities in New York, but some legislators argue the actual figure is likely more than 500,000.

Advocates argue that MENA communities are underserved in New York due to the communities’ needs being lumped in with the needs of white communities, thus affecting the state’s allocation of funds to MENA individuals. The bill will not entitle MENA communities to any new benefits or make individuals eligible for any new programs—the data collection will only better identify the number of MENA individuals and the locations of MENA communities potentially in need.

Earlier this year, the Biden Administration approved a proposal to include “Middle Eastern or North African” as a response to race and ethnicity questions on future federal government forms. The state MENA bill would extend this to state-collected data and would not go into effect until the revised federal data collection standards are in place. The state’s MENA bill mirrors the actions of the federal government, so that race and ethnicity data are comparable on the federal and state level over time.


N.Y. Rep. Tenney Asks Supreme Court To Support Independent Legislature Theory

In an amicus brief submitted to the U.S. Supreme Court, N.Y. Rep. Claudia Tenney joined 10 House colleagues asking the Court to reconsider the independent state legislature theory that the court essentially rejected last year in Moore v. Harper.

The ISL theory dictates that only state legislatures can regulate federal elections. Governors and state courts would have no role approving laws enacted by the legislature and courts would be prevented from ruling on them.

The brief was filed as part of the record in Keefer v. Biden, a challenge to a presidential executive order involving state voting rights.


June 18- N.Y. Redistricting: What Happened and What’s Next?

New York Law School will host a conference on redistricting from 9:30 to Noon at the school. Panels will focus on the 2014 constitutional amendment, the post-2020 process and what happened, and next steps for a new constitutional amendment before the post-2030 process gets underway. For more information and a link to register for the event, see: https://www.nyls.edu/events/new-york-redistricting-what-happened-and-whats-next/


The New York 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 Roundtable Updates can be accessed
here: https://digitalcommons.nyls.edu/redistricting_roundtable_updates/

Please share this weekly update with your colleagues. To sign up for the NY Elections, Census, and Redistricting Institute’s weekly newsletter click here.

The N.Y. Elections, Census & Redistricting Institute is supported by grants from the New York Community Trust, New York Census Equity Fund, the Alfred P. Sloan Foundation, and the New York City Council. This report was prepared by Jeff Wice and Alexis Marking.

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