New York State Board of Elections Violates Section 5 of the Voting Rights Act

April 20, 2010

New policies could disenfranchise 40,000 to 50,000 New Yorkers

For Immediate Release, April 20, 2010

Contact: Jeanine Plant-Chirlin, 212-998-6289

New York – The Brennan Center of Justice notified the U.S. Department of Justice that the New York State Board of Elections has violated Section 5 of the Voting Rights Act (VRA).

The violation stems from the NYS Board of Elections' recent decision to switch to new voting machines that could disenfranchise at least 40,000 to 50,000 New Yorkers in the gubernatorial race this year.

Section 5 of the Voting Rights Act requires designated jurisdictions to submit proposed changes to their voting systems to the DOJ for “preclearance,” or approval. The recent change affects Manhattan, Brooklyn and the Bronx – designated Section 5 jurisdictions.

The policy change involves how New York handles "overvoted" ballots. Under the new voting system -- which will be used throughout the state for the first time in the September primaries -- voters will fill out ballots that will be read by an optical scanner. If the machine determines a voter has selected too many candidates for a particular vote, it will not count the vote in that contest. These "overvotes" can occur because the voter misreads the ballot and selects more candidates than she is entitled to vote for, or because the machine misinterprets a voter’s mark as an extra choice.

The change is likely to have a disproportionate affect on minority voters. Florida instituted this rule change before the 2008 election, and Black voters, in particular, experienced substantially higher rates of loss due to overvoted ballots.

Although minority voters will experience the worst impact in New York, all voters will be affected.

“New York should learn from Florida's problems in 2008. The new voting machines can be easily modified to avoid the potential problems of lost votes,” said Lawrence Norden, Brennan Center senior counsel. “And there is a chance to fix the problem before New York’s primary.”

New York’s lever machines prevented overvotes in the past by making it impossible to cast an overvoted ballot. Under the new procedure, when a voter overvotes, New York’s voting machines will retain the ballot, rather than immediately reject it; will not notify voters of the consequences of casting an overvoted ballot; and will display a confusing message.

The Brennan Center addressed the letter to T. Christian Herren, Jr., Acting Chief of Voting Section in the Civil Rights Division of the Department of Justice. Read the letter in full.

The City Board may discuss and vote on this issue today at 1:30 PM.

For more information or to speak with experts at the Brennan Center, please contact Jeanine Plant-Chirlin at 212-998-6289 or jeanine.plant-chirlin@nyu.edu.