Brennan Center Announces “Double Vote” Settlement, Victory for Minor Parties and Voters

September 9, 2011

New York – The Brennan Center today announced an agreement between New York's Conservative, Working Families, and Taxpayer's parties and the State Board of Elections, ending a lawsuit challenging a discriminatory New York State policy for counting political party votes.  The Conservative Party and the Working Families Party were represented by the Brennan Center for Justice; the Conservative Party and the Taxpayers Party were represented by the law firms of Emery Celli Brinckerhoff & Abady LLP and Cuti Hecker Wang LLP.

The discriminatory policy affects a phenomenon known as “double-voting,” which results when a voter fills in more than one oval for the same candidate running on more than one party line. Under the state’s policy, the major (e.g. Democratic, Republican) party gets the full vote and the minor party (e.g. Conservative, Working Families) gets no credit.

Under the consent decree signed yesterday by United States District Judge Jed S. Rakoff, New York voting machines will display a warning message when ballots with double-votes are submitted. Following the settlement, all of New York’s voting machines will be reprogrammed to:

  • Warn voters who are about to cast double-votes of the consequences,
  • Give voters an opportunity to change potential double-votes, and
  • Record the number of double-votes cast in an election.

County Boards of Elections will also be required to properly inform voters about double-voting and assist voters who need help correcting potential double-votes.

New York’s “fusion” voting system allows for the same candidate to run on both a major party as well as a minor party line. This allows voters to vote for a major party candidate while supporting a minor party. With the lever machines used in New York until 2010, voters could not vote for the same candidate on both major and minor party lines.  With the  electronic voting system, voters can “double-vote” in this way, without any warning that their vote will only count for the major party and without any opportunity to correct their ballot.

“The old policy unfairly penalized minor parties and favored the parties of the Democrats and Republicans who write and administer the laws,” said Mike Long, Chairman of the New York State Conservative Party.  “Our voters deserve their support for our party to be counted, and this is one more step to protect voter intent,” added Dan Cantor, Executive Director of the Working Families Party. 

The issue is of particular importance to minor parties in New York, given that the results of the gubernatorial election are used to determine a party’s placement on the ballot for the next four years. Only parties who receive at least 50,000 votes are entitled to a guaranteed place on the ballot, and the order of their appearance is based on the number of votes that they previously received.

 “This is a win for voters of every party,” said Lawrence Norden, Deputy Director of the Brennan Center’s Democracy Program. “New York’s voting machines will now notify voters when they’re at risk of double voting, and give voters an opportunity to make sure their vote counts the way they want it to.”

“We are pleased to announce this agreement, which will ensure citizens get a full opportunity to cast their vote for the party they support,” said Eric Hecker, partner at Cuti Hecker Wang LLP. “Yesterday’s decree marks a step forward for elections in New York and all of New York’s voters,” added Zoe Salzman, attorney with Emery Celli Brinckerhoff & Abady LLP.