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By John Travis – 05/09/12
Crossposted at ReformNY
The New York State Board of Elections, New York City Boards of Elections, and voting machine manufacturer ES&S each released reports yesterday detailing the results of an investigation into the abnormally high numbers of lost votes attributed to “overvoting” in the South Bronx in 2010. The upshot is that a machine defect led to “phantom votes” on at least one machine used in the 2010 election, resulting in some candidates receiving more votes than they should have, and the choices of many more voters being voided when the machines detected both actual and phantom votes in the same contest. Now that the reports on how this happened are out, election officials must make sure that what happened in the Bronx in 2010 does not happen again in the future.
Voting machines record overvotes when they detect more than one candidate selected for a contest. In such cases, no vote is recorded for any candidate in the overvoted contest, regardless of the voter’s actual intent. The Brennan Center first uncovered a high number of overvotes in the South Bronx while reviewing documents produced for discovery in a litigation it brought against the State and City. It published its findings in Design Deficiencies and Lost Votes; the report notes that in some election districts up to 40% of the votes cast did not count.
The investigations conducted by the City, State and ES&S conclude that the unusually high overvote rates were not due to voter error, but rather a malfunction in the voting machine once it became heated after a couple hours of use. The malfunction resulted in a distortion of the ballot images as read by the machines, causing blank ovals to appear darker than they should have. The machines registered these darker images as votes. These “phantom votes,” either led to some candidates getting extra votes (if no candidate had been chosen by a voter) or overvotes (if the voter had filled out a different oval for another candidate in the same contest).
While the machines in New York provide voters with a warning when ballots cannot be read because of overvoting, the warning used complex election jargon that gave voters misleading cues about their options. Voters in these predominantly Hispanic South Bronx districts apparently chose to override this message without understanding the result was that their votes were not counted. Fortunately, as part of a settlement agreement reached with the State, New York’s voting machines will be reprogrammed before the presidential election in November with an overvote warning message that uses plain language that more clearly explains to voters if the machine is having problems reading their ballot.
We applaud the State and City Boards for conducting a thorough investigation of this matter. The State Board of Elections has forwarded their report to the U.S. Election Assistance Commission so that it can be distributed to other jurisdictions across the country using the ES&S DS-200.
However, more steps need to be taken to prevent lost votes in the future by detecting these problems when they arise. Election officials in New York should publish election results by precinct and report the number of overvotes in each contest. Rockland County already does this. The only reason the Brennan Center was able to discover this anomaly was by reviewing documents obtained in the course of litigation. Had we not done so, the problems in the South Bronx would have likely gone undetected and the machines would continue to be used election after election. It should also be noted that we did not receive complete data from New York City or from other jurisdictions in the state that use the DS-200. As a result, there is no way of knowing where else these kinds of problems may have happened.
Tags: Democracy, NY Reform, Other Reforms
By Meghna Philip – 03/23/12
On the heels of a recent string of criticisms of racial and religious profiling by the New York Police Department, a Quinnipiac University poll released last week reported that a majority of New Yorkers approve of the way the police are doing their job. However, only 46 percent approve of the controversial policing tactic stop-and-frisk. The racial breakdown of reactions to this policy is striking: 59 percent of white voters approve, while only 43 percent of Hispanic voters and 27 percent of black voters support stop-and-frisk.
The results of a January 2011 study called “Understanding Stop & Frisk” shed a more nuanced light on minority communities’ reactions to the policy. The Global Strategy Group conducted the study amongst adult residents of the six neighborhoods with the highest frequency of stops, in Brooklyn, East Harlem and Queens. Participants were chosen to include the most highly impacted demographics: African Americans and Latinos. Focus groups included participants who reported they had never been the target of a stop-and-frisk.
The strongest supporters of the policy — African American and Latino seniors — almost universally agreed that it can be a violation of civil rights, yet still supported it. And the most adamant objectors — African American and Latino men — expressed outrage at the policy, yet were not fully committed to ending it altogether. A majority of participants recognized crime as a major problem in their neighborhood, but agreed that stop-and-frisk doesn’t reduce crime or improve quality of life enough to justify its tendency towards racially-based harassment that ruins community relationships with the police.
“There are so many [officers] who have had no experience with our community. Somebody must have told them, ‘You have to be aggressive instead of coming to [these people] in a proper way.’ Some of them come and speak to us like animals,” said one African American woman.
Stop-and-frisk has had an overwhelmingly disparate impact on blacks and Hispanics, who represented 87 percent of those stopped last year. It is unclear what positive effect, if any, the practice has had on improving public safety outcomes. Close to 90 percent of stops in 2011 resulted in no arrest or summons whatsoever. Criminologist Frank Zimring, who has written very favorably about most of the crime-fighting tactics the NYPD has used in the last two decades, finds no evidence to support the use of stop-and-frisk.
"The New York City Police Department is one of the most aggressive police departments we've ever seen. And the big question…is, does getting aggressive, does making 600,000 stops add value to these techniques? And the answer is a great big we don't know."
The Brennan Center supports efforts to improve police-community relations in ways that allow minority communities to be both safe and free. Non-aggressive community policing, and increased foot patrols with properly trained and supported officers, should be part of coordinated strategies to improve a community’s health. Such programs would achieve the results all New Yorkers seek, and that we all deserve. The NYPD must identify fairer and more intelligent practices than stop-and-frisk, because a growing chorus of politicians, advocates and citizens demands it.
Tags: Justice, Racial Justice, Civil Justice
By John Travis – 03/22/12
Crossposted at ReformNY.
Although both sides have declared victory, the race to replace State Senator Carl Krueger remains too close to call. The preliminary results released by the Board of Elections show David Storobin with a 143 vote lead over Lew Fidler. While several news outlets have focused on the 757 absentee ballots which remain to be counted, recent anomalies with New York's voting machines show that in a very close contest, only a hand count can ensure that the right contestant has won.
Just last month, the results of an upstate City Council race declared to have been won by challenger Augustine Beyer by a single vote were overturned after a full hand recount revealed a two-vote discrepancy that tilted the race in incumbent Richard Slisz’s favor. The voting machine was unable to read one improperly marked ballot where the voting oval had been circled rather than filled in. The hand inspection was enough for election officials to determine that the voter's intent had been to vote for Mr. Slisz. Perhaps more troubling however, was the second ballot with a vote for Mr. Slisz’s that was never scanned or registered by the machine at all.
Furthermore, the results from a Daily News investigation into the exceptionally high overvote rates the Brennan Center uncovered in the South Bronx indicate that these voting machines are far from infallible. The Daily News found that one of the machines used to scan ballots in the South Bronx made errors in reading nearly 70 percent of ballots during the September 2010 primary.
In our report analyzing overvote rates in New York, we listed one of the precincts in Mr. Kruger’s district — AD 46, ED 051— as having Brooklyn’s 8th highest overvote rate in 2010. Many other precincts in this senate district did not provide any data at all, but given the demographics of the district, it seems likely that there were other precincts with high overvote rates both in 2010 and 2012. In some of those cases, voter intent may be clear to the human eye, but not a machine.
Unfortunately, New York City does not publish the number overvotes — as is done in Rockland County— making it virtually impossible for anyone outside the Board of Elections to identify areas where voting machines have registered high rates of uncounted votes.
A provision adopted by the City Board of Elections requires a hand recount of paper ballots in contests where the margin of victory is less than 10 votes or half a percent of the total votes cast. Given the newness of these machines and recent history, even a margin slightly higher may warrant a careful hand recount to ensure that the actual winner is declared the victor. If a recount does happen, look for totals (and maybe even the declared winner) to change.
Tags: Democracy, NY Reform, Voting Rights & Elections, Ballot & Election Material Design, Voting Technology
By John Travis – 03/16/12
Crossposted at ReformNY
Over 311 legislative proposals were killed in one fell swoop in Albany this week, after the Senate majority adopted a new method to stall legislation: refer all bills where a motion for committee consideration has been filed to the Rules Committee, where they can be ignored.
The new strategy lets them circumvent a senate rule designed to allow rank-and-file senators to force a committee vote on their bills over the objection of leadership.
The rule on motions for committee consideration was first introduced in 2009 by a Democratic majority and passed again by a Republican majority in 2011. The new rule was intended to increase the ability of rank-and-file members to move their bills out of committee by forcing chairs to place the bill on the committee agenda and schedule a vote. This replaced the Senate’s earlier rule on discharge motions which allowed a chair to stall a bill even if the bill had enough support to pass.
According to a three-paragraph letter, sent to committee chairs Tuesday morning, the Temporary President of the Senate “may at any time refer bills to the Rules Committee,” and at the request of the Temporary President, “any pending motions for committee consideration have been discharged from the respective committee and committed to the Rules Committee.”
A search through the legislative research service reveals that an astonishing 311 bills were sent to the rules committee on March 12, 2012.
This action goes against the spirit of greater transparency and accountability that the new rules were meant to accomplish. A 2009 joint statement which included then-Senate President Malcolm A. Smith and Minority Leader Dean Skelos, touted how these rules would increase the power of rank-and-file members. “No longer will the Senate be run by leaders making all the decisions,” the statement said.
Moreover, in summarizing how the new rules-- including the new motion for committee consideration– would strengthen the committee process, the statement added that “these changes will give greater power and authority to individual committee chairs and members so they can consider, judge and act on legislation independent of leadership.”
It’s disheartening to see how the majority has distorted the rules. The ability to kill 311 bills in a single day speaks to how truly “independent of leadership” the Senate has become.
Tags: NY Reform
By Bonnie Ernst – 04/25/11
Last week the United State Census Bureau released a new data file giving states new opportunities to correct the decades-old problem of prison-based gerrymandering.
Prison-based gerrymandering occurs when the thousands of people incarcerated in state and federal prisons are counted by the Census as residents of the districts where they are incarcerated rather than residents of their home communities, where most inmates will return upon release. These two addresses are usually far apart. When tied with the nation’s significant rate of incarceration, prison-based gerrymandering leads to a systematic distortion of the population in some districts. Districts with prisons are constructed by counting “ghost voters,” or inmates, toward the district size but who, with few exceptions, are not permitted to vote. Furthermore, inmates rarely have any connection to other residents and communities in the district where they are incarcerated. Prison-based gerrymandering inflates the political power of residents in prison districts, and deflates the power of residents everywhere else.
Last year, the Census Bureau agreed to release a new data product that will provide states with information and greater flexibility to remove people in prison from the prison districts and reallocate them to their home communities for redistricting.
On April 20, the Census Bureau released an early version of the group quarters data that will include adult correctional facilities in addition to juvenile facilities, nursing facilities and other institutional and non-institutional facilities. The data will have information for states in addition to smaller categories such as counties, census tracts and geographical blocks. The data will allow states to identify and use effectively prison population information for state and local redistricting purposes.
This data will be particularly useful for New York. As New York gears up for redistricting, the Census Bureau has made it easier for the state to follow its new legislation that put an end to prison-based gerrymandering. In summer 2010, lawmakers in Albany passed a bill that mandated that redistricting officials to allocate people in prison to their home communities rather than to the districts where they are incarcerated. Maryland and Delaware passed similar legislation last year.
Earlier this month, several New York legislators filed a lawsuit challenging the New York law. As the New York Times recently editorialized, people incarcerated in large correctional facilities run by the state cannot be considered true residents of the county or district in which they are incarcerated. The new group quarters data allows states and localities to correct the skew caused by prison-based gerrymandering.
Tags: Democracy, Redistricting
By Kelly Williams – 01/07/11
What Does Meaningful Client Disclosure for Public Officials Look Like in Other States?
We spent a good part of our holiday break thinking about this question and doing some reading. The anticipated ethics bill should include meaningful financial disclosure for all public officials. Comprehensive disclosure of private interests would set a new tone in Albany, and be a declaration by lawmakers that their first priority is to the public. Officials should disclose all sources of income that might serve to influence their decision-making: commercial tenants, sources of brokerage fees and commissions and other third-party payments, and business clients of law firms and other professional practices.
Though dull reading, here are a few examples of client and income disclosure from a handful of states that should serve as useful models to bill drafters:
In Wisconsin, public officers are required to disclose commercial customers, clients and tenants who are not individuals:
“For each unincorporated business, subchapter S corporation, service corporation (SC), limited liability company (LLC), partnership, or income-producing real estate (in which the officer or his family owns 10% or more), list businesses, organizations, and lobbyists that paid the enterprise $1000 or more in [the calendar year] Furthermore, please place a checkmark in the appropriate column if an organization listed in Item 3 authorized you to represent it in its dealings with others as an attorney-at-law, agent, spokesperson, or representative.
List: both a third-party payer as well as the customer, client or tenant if the business received income from a third-party payer (such as a fee, commission, or insurance payment received by a realtor, travel agent, or medical practice).
Do not list: an individual (unless the individual was a lobbyist or acting on behalf of a business or organization); a decedent’s estate.
Further, Item 7 requires disclosure of entities that appoint officials as agent, representative or spokespersons to third parties. “List organizations that authorized you or a family member to represent it in its dealings with others as an attorney-at-law, agent, spokesperson, or representative…
List: each business, labor union, association, cooperative, partnership, or other organization for which you or a family member was an authorized representative or legal agent.
In the case of a lawyer, business clients for which you or a family member was authorized to provide representation in dealing with other parties or before a tribunal.”
To read more about Wisconsin’s progressive financial disclosure, visit http://gab.wi.gov/node/205
In California, public officials must disclose “commission income,” defined as “gross payments of $500 or more received …as a broker, agent, or sales person, including insurance brokers or agents, real estate brokers or agents, travel agents or salespersons, stockbrokers, and retail or wholesale salespersons…The “source” of commission income generally includes all parties to a transaction, and each is attributed the full value of the commission.”
Officials must disclose “the name of each reportable single source of income of $10,000 or more.” This includes clients, and, as interpreted by California’s Fair Political Practices Commission: “A person's name is not ordinarily protected from disclosure by the law of privilege in California. Under current law, for example, a name is protected by the attorney client privilege only when facts concerning an attorney's representation of an anonymous client are publicly known and those facts, when coupled with disclosure of the client's identity, might expose the client to an official investigation or to civil or criminal liability.” http://www.fppc.ca.gov/Legal/Regs/18740.htm Regulations set out a procedure that must be followed in order to omit a source of income on the basis of privilege. (id.)
In Washington State, officials must disclose “the name of each governmental unit, corporation, partnership, joint venture, sole proprietorship, association, union or other business or commercial entity from which such entity has received compensation in any form in the amount of $10,000 or more during the preceding twelve months.” (Washington Public Disclosure Commission Personal Financial Affairs Statement, F-1 Supplement.). www.pdc.wa.gov
Washington’s Commission can allow modification of client reporting when a “literal application…works a manifestly unreasonable hardship” and such suspension “will not frustrate the purposes of the chapter.” In PDC Interpretation 02-03, the Commission states: “The Commission shall suspend or modify the reporting requirement or requirements only to the extent necessary to substantially relieve such hardship, and only upon clear and convincing evidence.”
A footnote to this PDC Interpretation provides:
Ordinarily, the identity of a client does not fall within the purview of the information protected by the attorney-client privilege unless there is a “strong probability” that the disclosure would convey the substance of a confidential communication between client and attorney. Splash Design, Inc. v. Lee, 104 Wn.App. 38, 14 P.3d 879 (2001) (describing Rule of Professional Conduct 1.6 and citing to Dietz v. Doe, 131 Wn.2d 835, 935 P.2d 611 (1997)); Tegland, Washington Practice, Vol. 5A, § 501.15 (1999); United States v. Hunton & Williams, 952 F.Supp. 843 (D.C. 1997)(under federal law, absent special circumstances, identity of a client of a lawyer or law firm is not protected by attorney-client privilege); C.K.
In Alaska, officials must disclose each source of income over $1,000 from their sole proprietorships, partnerships, limited liability companies, and professional corporations. The instructions to the APOC Financial Disclosure Statement note that
“Source of income is the origin of the payment, requiring disclosure of:
the client or customer of the sole proprietorship, LLC, partnership, PC, or corporation where filer and/or family hold a controlling interest. If the origin of payment is not the same as the client for whom the service is performed, both are considered the source of income, and both must be reported. Example: A realtor must report the real estate company that pays him/her and the clients the agent represented. … the financial disclosure law requires a detailed description of services rendered”
We especially like the salty instructions to Alaska’s form, which require:
“a description sufficient to make clear to a person of ordinary understanding the nature of each service performed.” Do NOT give one-word answers or vague phrases. One-word answers such as “consultant” or “researcher” are NOT acceptable. Provide a clear, detailed description of the work.”
The law also allows for exceptions:
Filers may be exempt from reporting a source of income if (1) the information is legally confidential and disclosure would violate the source’s legal rights; or (2) a filer meets specific exemption criteria described in detail in APOC regulations. Filers seeking an exemption from disclosing a source of income must submit a written request with facts that show how the filer meets the qualifications for an exemption. Examples: Medical practitioners required by law to protect patient privacy under HIPAA (the federal Health Insurance Portability and Accountability Act); tax preparers adhering to the IRS Code of Confidentiality; lawyers protecting client confidentiality in certain cases, such as those involving a minor. APOC will grant or deny a request based on whether the facts and circumstances qualify the filer for an exemption. For detailed exemption qualifications, criteria and requirements, consult the following APOC regulations. For public officials and candidates: 2 AAC 50.100-102. For legislators: 2 AAC 50.780.
http://www.doa.alaska.gov/apoc/forms/2010FinancialDisclosureInstructions.doc
Tags: NY Reform
By Erika Wood – 08/04/10
This summer the New York legislature took decisive action to create two important policy reforms: requiring that people in prison be allocated to their home communities for redistricting purposes; and requiring criminal justice agencies to provide voting rights information to people who are again eligible to vote after a felony conviction. While Albany has long been labeled “dysfunctional,” these particular reforms actually stand to make aspects of our state government models for democratic fairness and participation.
Both proposals are long overdue and have been introduced again and again and again, and both have garnered strong support in the legislature. Nevertheless, political wrangling repeatedly stymied their progress. This year, democracy trumped politics. Well, not quite. The legislation was pushed through in the budget revenue bill with no public hearing or debate. We will continue to criticize Albany for passing legislation behind closed doors with no opportunity for public input. But that’s for another post. Here, we hail the result.
The first reform assures that long under-represented communities have a full and fair voice in our state government. At present, incarcerated individuals are counted for federal Census purposes as residents where they are incarcerated rather than as residents of their home communities. In New York, where people are often imprisoned far from home and incarceration rates have skyrocketed in the last decade, this policy has produced increasingly harmful results. Public officials in prison districts have an incentive to build their districts on the backs of “ghost voters,” packing in prisoners who count toward the district size but who are not permitted to vote. So while officials who profit from the prison economy have an outsized voice in incarceration policy, the voting strength of the home communities – to which the vast majority of incarcerated people return – is diluted, resulting in under-representation in our state government.
The new legislation requires the Department of Correctional Services to provide the legislature with the necessary information to determine the home addresses for people in prison, and it instructs that incarcerated people should be allocated back to their home communities for redistricting purposes. This corrects a skew that has decimated the voting strength of poor and minority communities for decades, and assures that all communities in New York have equal representation and an equal voice in our government. Both Maryland and Delaware recently passed similar legislation.
The second policy reform is no less urgent. It will correct years of misinformation, promote successful reintegration and help protect public safety, while building civic participation among traditionally disenfranchised communities. Reliable information about voting rights is needed to address widespread, persistent, and well-documented misinformation in New York. Under New York law, people convicted of a felony lose the right to vote while in prison and parole. People on probation do not lose the right to vote. Once someone serves his maximum prison sentence or is discharged from parole, his right to vote is automatically restored. He need do nothing more than fill out a voter registration form like everyone else. Nevertheless, New York election officials have consistently misapplied the law and some have required people to provide unnecessary (and sometimes nonexistent) paperwork before being allowed to register. Not surprisingly, this confusion among election officials has affected the public. In 2005, researchers found that nearly 30% of people with criminal convictions surveyed in New York thought they would never be eligible to vote again.
New York’s new law is the latest in a national trend. Twenty-four other states and New York City already require certain state and local agencies to inform people when their voting rights are restored following a criminal conviction. It is a simple, workable policy that promises to have a major impact in assuring successful reintegration and reduced recidivism. Last year a retired New York parole chief testified before the New York Senate Elections Committee, “having the right to vote and learning how to exercise that right gives one a voice and a stake in the community; it promotes positive behavior and serves as a powerful conduit for making the transition from criminal to becoming a law abiding member of the community.”
The political jousting and escalating rhetoric of this seemingly endless New York budget season have been baffling, and at times excruciating. But this legislation shows that sometimes behind the shenanigans important policy reforms can be achieved. These two proposals in particular have the potential to make at least some aspects of our representative government a model for the rest of the country, and that’s not something we say lightly.
Tags: Democracy, Redistricting, Voting After Criminal Conviction, Post-Incarceration Restoration of Voting Rights, State-Based Advocacy
By Garima Malhotra – 05/13/10
The effort to restore voting rights in New York is gaining momentum. Today, over 100 New Yorkers sent postcards to their legislators and Governor Paterson urging them to restore the right to vote to people in New York who are on parole and probation.
New York law disenfranchises individuals in prison or on parole. As we have mentioned in previous posts, this law has a stark impact on people of color. A new Brennan Center report, titled Jim Crow in New York, confirms that the current criminal disenfranchisement law traces back to a century-long effort to keep African-American citizens out of the voting booth. As a result, over 80% of those denied the right to vote in the Empire State are African-American or Latino.
And New Yorkers are finally calling on our state leaders to end this injustice.
This writing campaign stems from a lively public conversation held at the Schomburg Center for Research in Black Culture on this very issue. The discussion included Rev. Dr. Calvin O. Butts III from the Abyssinian Baptist Church of the City of New York, Hazel Dukes from the NAACP New York State Conference, Glenn Martin from the Fortune Society, and Columbia Law Professor Theodore Shaw.
Hopefully Albany will heed its constituents’ demands. There are several bills pending in both the Assembly and the Senate that would restore the right to vote to people with a prior criminal conviction.
Among them is legislation introduced by Assemblyman O’Donnell and Senator Thompson that restores voting rights to people on parole. The bills have been referred to the Assembly Committee on Election Law and the Senate Committee on Elections.
Senator Montgomery and Assemblyman Wright have also introduced the Voting Rights Notification and Registration Act that would help eliminate some of the confusion about who is eligible to vote. The bill would require the Department of Corrections and the Board of Parole to provide information to individuals about their voting rights once they regain eligibility. The bill passed the full Assembly in June 2009 and is currently pending in the Senate Elections Committee. (The Brennan Center testified in favor of this bill in April 2009). Similar bills have passed the Assembly twice before.
Contact us to request postcards to tell your elected officials that it is time to restore voting rights to people with prior convictions.
Tags: Democracy, NY Reform, Voting After Criminal Conviction, Post-Incarceration Restoration of Voting Rights, State-Based Advocacy
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