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Policy Solution

How to Fix the New York City Board of Elections

Summary: New York City’s unique election administration practices and structure promote dysfunction. The Brennan Center has solutions.

“A national embar­rass­ment.” foot­note1_6hn5sfm 1 David Klep­per and Jennifer Peltz, “Vote Mistake Not the First Flub for NYC Board of Elec­tions,” Asso­ci­ated Press, July 1, 2021, https://apnews.com/article/elec­tions-govern­ment-and-polit­ics-d29c384522ca1cb7034e03aa03189c60 (quot­ing Senate Major­ity Leader Andrea Stew­art-Cous­ins).  “A disaster.” foot­note2_oxexrk6 2 New York Times Edit­or­ial Board, “The N.Y.C. Elec­tions Board Is a Disaster. This Is the Last Straw,” New York Times, June 30, 2021, https://www.nytimes.com/2021/06/30/opin­ion/nyc-mayor-elec­tion-boe-votes.html. “Wins at screw­ing up.” foot­note3_jca4cnz 3 Nia Prater and Chas Danner, “The New York City Board of Elec­tions Wins at Screw­ing Up,” New York Magazine, June 30, 2021, https://nymag.com/intel­li­gen­cer/2021/06/the-new-york-city-board-of-elec­tion-wins-at-screw­ing-up.html. These were just a few assess­ments of the New York City Board of Elec­tions (NYC BOE) after its most recent in a long history of errors. The agency had mistakenly coun­ted approx­im­ately 135,000 test ballots in a prelim­in­ary announce­ment of the June 2021 mayoral primary results. foot­note4_hq6920y 4 NYC Board of Elec­tions (@BOE­NYC), Twit­ter, June 29, 2021, 10:34 p.m., https://twit­ter.com/BOENYC/status/1410064145064599554 (NYC BOE state­ment on tabu­la­tion error). It quickly caught the slip, but the epis­ode only cemen­ted the agency’s repu­ta­tion for being unable to run a major elec­tion without caus­ing some debacle.

The board’s string of fail­ures includes more seri­ous ones that have disen­fran­chised thou­sands of voters, from hours-long lines and untrace­able absentee ballots in 2020 to wide­spread machine break­downs in 2018 to the illegal purge of more than 200,000 voters from the rolls before the 2016 pres­id­en­tial primary. Accounts of agency misman­age­ment that has disen­fran­chised voters, foot­note5_35ojftg 5 Ronald Hayduk, Gate­keep­ers to the Fran­chise: Shap­ing Elec­tion Admin­is­tra­tion in New York (Dekalb: North­ern Illinois Univer­sity Press, 2005), 52 (during the 1912 primary elec­tion, accord­ing to a report by New York City Commis­sioner of Accounts Raymond B. Fosdick, in “many of the elec­tion districts no ballots were received at all, while in others they were received too late to be of service. The result was that thou­sands of voters were effect­ively disen­fran- chised. . . . It appears that the greatest incon­veni­ence was felt in Brook­lyn.”). along with calls for reform from politi­cians, advoc­ates, and the media, go back decades. foot­note6_ho72arf 6 Brian M. Rosenthal and Michael Roth­feld, “Inside Decades of Nepot­ism and Bungling at the N.Y.C. Elec­tions Board,” New York Times, Octo­ber 26, 2020, https://www.nytimes.com/2020/10/26/nyre­gion/nyc-voting-elec­tion-board.html (recount­ing calls for reform from as early as 1940). And yet, little seems to change.

This report seeks to answer the ques­tion “why?” Why have the repeated public fail­ures, lawsuits, govern­ment invest­ig­a­tions, civic activ­ism, and media atten­tion failed to substan­tially improve the agency’s perform­ance? And what can be done to change that?

For the last year, we have delved deep into the work­ings of the NYC BOE, examined its fail­ures, and compared its perform­ance, struc­ture, and processes to other large boards of elec­tions around the coun­try. foot­note7_sxz3krn 7 The find­ings in this report — of the nature and consequences of these systemic flaws and of the poten­tial for progress in fixing them — derive not merely from study of law, policy, invest­ig­at­ive reports, and court decisions. They also reflect the perspect­ives and lessons gleaned from inter­views with current and former elec­tions offi­cials from 10 major elec­tions juris­dic­tions across the coun­try. In addi­tion, we inter­viewed two current offi­cials at the NYC BOE who spoke on the condi­tion of anonym­ity (here­in­after NYC BOE Offi­cial A and NYC BOE Offi­cial B) and a New York City govern­ment offi­cial with direct know­ledge of the NYC BOE’s oper­a­tions who asked to remain anonym­ous (here­in­after NYC Govern­ment Offi­cial A). We also inter­viewed two former NYC BOE commis­sion­ers, one of whom reques­ted to speak anonym­ously. The Bren­nan Center emailed each of the 10 current commis­sion­ers a list of ques­tions but as of this writ­ing has not received responses. This report also draws from essen­tial insights contrib­uted by exper­i­enced advoc­ates and civic lead­ers, many of whom are fellow members of the Let NY Vote coali­tion that has achieved a historic spate of voting reforms just since 2019. See “Wins,” Let NY Vote (website), accessed August 9, 2021, https://letnyvote.org/wins. What we found is strik­ing. Among large, diverse elec­tion juris­dic­tions, New York City is an extreme outlier in five crit­ical areas: its decisional struc­ture; how its lead­er­ship is appoin­ted and staff are hired; its train­ing require­ments; who holds the ulti­mate account­ab­il­ity author­ity for the agency; and its stand­ards for inform­a­tion shar­ing. (See chart, “New York City’s Unique Elec­tion Admin­is­tra­tion Prac­tices and Struc­ture Promote Dysfunc­tion,” page 6.)

These systemic defects explain the agency’s uniquely poor track record more than human error, the city’s size, or the complex­ity of new voting policies. To break the NYC BOE’s cycle of fail­ure, the state legis­lature, whose laws govern all boards of elec­tions in the state, must enact a compre­hens­ive, systemic redesign of the agency.

The NYC BOE’s flaws — and solu­tions for address­ing them — are outlined below.

Decisional Struc­ture

The NYC BOE’s excess­ively diffuse decisional struc­ture results in inef­fi­ciency and dispar­it­ies. With ten commis­sion­ers — one Demo­crat and one Repub­lican from each of the city’s five counties, each wield­ing equal power — the agency’s lead­er­ship is far larger and more diffuse than that of any other major metro­pol­itan elec­tion juris­dic­tion in the coun­try.

Impact: Among other prob­lems, the large number of nomin­at­ing bodies means that no one person is respons­ible for the commis­sion­ers’ appoint­ments (or fail­ures). The county-based, equally weighted decisional struc­ture may also disad­vant­age resid­ents of more popu­lous and diverse counties in access­ing basic resources, such as adequate numbers of polling sites. To take one example of how inequit­ably resources can be distrib­uted under this system, Staten Island has more than twice as many full-time employ­ees per registered voter as Brook­lyn. foot­note8_l92lpjb 8 City of New York, Adop­ted Budget Fiscal Year 2022 Support­ing Sched­ules, accessed July 26, 2021, 116–18, https://www1.nyc.gov/assets/omb/down­loads/pdf/ss6–21.pdf; and New York State Board of Elec­tions, Albany, NY (here­in­after NYS BOE), “Enroll­ment by County,” last modi­fied Febru­ary 21, 2021, https://www.elec­tions.ny.gov/Enroll­ment­County.html.

Solu­tion: Stream­line oper­a­tions by redu­cing the number of commis­sion­ers from ten to four and untether them from geograph­ical subdi­vi­sions.

Appoint­ments and Hiring

The lack of trans­par­ent, merit-based selec­tion stand­ards, from commis­sion­ers down through the ranks, enables patron­age and poor perform­ance. Currently, polit­ical insiders select both NYC BOE commis­sion­ers and staffers behind the scenes and based on party machine connec­tions rather than elec­tion admin­is­tra­tion qual­i­fic­a­tions. The law and selec­tion process require no exper­i­ence or train­ing of commis­sion­ers or exec­ut­ive staff before or after they take office. The only require­ments are that commis­sion­ers are registered to a major party in the county they repres­ent and that they not hold or run for public office. foot­note9_g9kszn6 9 N.Y. Elec. Law § 3–200(4), (6) (McKin­ney 2021) (list­ing qual­i­fica- tions for commis­sion­ers. Some public office excep­tions exist, includ­ing acting as a commis­sioner of deeds or member of a community board).

Impact: Qual­ity elec­tion admin­is­tra­tion is too often an after­thought when selec­tion and advance­ment depend on polit­ical connec­tions. The primacy of polit­ical party interests over voter interests can go so far as to risk disen­fran­chise­ment, as when the NYC BOE in 2019 sued to block a mayoral program’s language inter­pret­ers from the polls, in part because the trans­lat­ors might not satisfy what the board argued was a require­ment under New York State law: bipar­tisan teams, one Repub­lican and one Demo­crat, wherever they were deployed. foot­note10_6tp5qui 10 Plaintiff’s Complaint for Injunct­ive and Declar­at­ory Relief at ¶ 13, Board of Elec­tions in City of New York v. Mostofi, No. 700001/19 (Sup. Ct. Kings Cnty. 2019) (“The city-funded MOIA inter­pret­ers do not oper­ate in bi-partisan teams as required under the Elec­tion Law.”); id. at ¶ 36 (“[N]or do the city-funded inter­pret­ers oper­ate in bi-partisan teams as required under the Elec­tion Law.”); and Board of Elec­tions in City of New York v. Mostofi, 65 Misc. 3d 876, 881–82, 886–87, 108 N.Y.S. 3d 819 (Sup. Ct. Kings Cnty. 2019).

Solu­tions:

  • Require the local appoint­ing author­ity — the New York City Coun­cil — to conduct a trans­par­ent, merit-based process for select­ing commis­sion­ers.
  • Require commis­sion­ers to conduct nation­wide searches for top exec­ut­ive staff, and require public, detailed, and broadly dissem­in­ated job post­ings for all board posi­tions.
  • Strike the current require­ment in state stat­ute that employ­ees through­out the agency reflect equal repres­ent­a­tion of the two major polit­ical parties.

Train­ing

Insuf­fi­cient train­ing of lead­er­ship and staff impairs the NYC BOE’s abil­ity to adequately serve voters. There is no legal require­ment for agency lead­er­ship to undergo train­ing, and staff train­ing does not keep pace with changes in the law.

Impact: From illegal voter list purges to wide­spread poll worker error to long lines and inac­cess­ible poll sites for voters with disab­il­it­ies due to poor plan­ning, voters suffer count­less harms when lead­er­ship and staff lack suffi­cient expert­ise. These prob­lems can have a disen­fran­chising or discrim­in­at­ory effect on work­ing people who cannot afford to wait or people with access­ib­il­ity needs.

Solu­tion: Require that commis­sion­ers and exec­ut­ive staff complete elec­tion law and admin­is­tra­tion train­ing and improve rank-and-file train­ings.

Account­ab­il­ity

NYC voters have no effect­ive path to hold their BOE account­able for persist­ent fail­ures. City voters’ most direct repres­ent­at­ives — the city coun­cil and city­wide elec­ted offi­cials, includ­ing the mayor — lack the author­ity to remove commis­sion­ers, even though the city coun­cil has the power to appoint them. State law gives only the governor this author­ity. foot­note11_l4ijf3z 11 N.Y. Elec. Law § 3–200(7) (McKin­ney 2021). It appears that no governor has ever exer­cised this power, in spite of the agency’s extens­ive history of poor lead­er­ship.

Impact: The NYC BOE’s lead­ers have little reason to improve the agency when they can retain power for years, even after disastrous outcomes. In this report, we docu­ment the agency’s major fail­ures through­out the last decade, includ­ing long lines, machine melt­downs, voter roll purges, phys­ic­ally inac­cess­ible poll sites, and inequit­able language access. Each of these fias­coes has disen­fran­chised a large number of voters or greatly under­mined public faith in the board itself, and yet rarely are commis­sion­ers or top staff replaced. The lack of account­ab­il­ity has led to a cycle well known to the New York voting public: fail­ure, expos­ure, public criti­cisms, calls for account­ab­il­ity, and expres­sions of frus­tra­tion by polit­ical lead­ers that they have no power to change things, followed by inac­tion and the inev­it­able next debacle.

Solu­tion: Give locally account­able elec­ted offi­cials the power to remove commis­sion­ers, with review by the courts for just cause.

Inform­a­tion Shar­ing

The NYC BOE’s fail­ure to share timely, usable inform­a­tion with the public hampers voters and inhib­its its own improve­ment. The NYC BOE has failed repeatedly to convey inform­a­tion to the public that is crucial to be able to vote, and it provides limited access to elec­tion data that would enable eval­u­ation and improve­ment of its perform­ance over time.

Impact: The agency’s fail­ure to provide inform­a­tion to voters, such as timely notices of the status of their absentee ballots, can result in confu­sion about how to vote, risk­ing disen­fran­chise­ment. The lack of timely, gran­u­lar, public, and user-friendly elec­tion data — such as rates of and reas­ons for ballot rejec­tions, affi­davit (provi­sional) ballot usage rates, and aver­age wait times per poll site — hinders prompt public scru­tiny and also the possib­il­ity of improve­ment through collab­or­a­tion with outside experts and other elec­tion agen­cies.

Solu­tions:

  • Improve commu­nic­a­tions with voters, includ­ing by requir­ing the agency’s absentee ballot tracker to be timely updated.
  • Require the agency to track and publicly report key voting and elec­tion admin­is­tra­tion data in an access­ible, frequently updated form.
  • Estab­lish a work­ing group that includes state and local offi­cials and board of elec­tions repres­ent­at­ives to provide feed­back on and plan imple­ment­a­tion of legis­la­tion.

 


The good news is that all of the solu­tions we detail in this report can be adop­ted imme­di­ately. Many observ­ers mistakenly assume that reform on this scale would require amend­ing the state consti­tu­tion, a part of which has served as an excuse for polit­ical manip­u­la­tion of the agency. foot­note12_p0s6k4f 12 See N.Y. Const. art. II, § 8. See also Rachel Holl­i­day Smith, “How to Reform New York City’s Board of Elec­tions (For Real This Time),” The City, Octo­ber 26, 2020, https://www.thecity.nyc/2020/10/26/21535643/how-to-reform-new-york-city-board-of-elec­tions(“[M]ost advoc­ates say the real power to force change at the BOE rests in reshap­ing the state consti­tu­tion to remove the partisan require­ment for the Board.”). An amend­ment is no small under­tak­ing, as it involves passage by two consec­ut­ive legis­latures and then by a major­ity of state voters in a ballot refer­en­dum. foot­note13_4bdh­fge 13 N.Y. Const. art. XIX, § 1. The changes that this study urges for the NYC BOE require only the will of the state legis­lature to enact tradi­tional legis­la­tion. But it will be worth study­ing whether signi­fic­ant improve­ments to boards of elec­tions statewide, which together consist­ently keep New York in the nation’s lowest rank­ings for elec­tion admin­is­tra­tion, warrant consti­tu­tional change. foot­note14_3blurif 14 “Elec­tions Perform­ance Index,” MIT Elec­tion Data & Science Lab, accessed August 3, 2021, https://elec­tions.mit.edu/#/data/map.

In the mean­time, mandat­ing the struc­tural reforms detailed in this study, gleaned from best prac­tices across the coun­try, will vastly improve the NYC BOE’s service and account­ab­il­ity to voters and provide some solu­tions that could apply else­where in the state. Indeed, some offi­cials and staff within the NYC BOE itself say they are eager for and open to improve­ment. foot­note15_gfhptoq 15 NYC BOE Offi­cial A and Offi­cial B, conver­sa­tion with Bren­nan Center, July 8, 2021. Lawmakers should adopt these reforms without delay.

The need to fix the NYC BOE has never been more urgent. Of course, the city’s 5.5 million registered voters — more than there are in most states foot­note16_bltt7e9 16 NYS BOE, “Enroll­ment by County”; and U.S. Census Bureau, “Voting and Regis­tra­tion in the Elec­tion of Novem­ber 2020—T­able 4a, Repor­ted Voting and Regis­tra­tion for States: Novem­ber 2020,” last modi­fied April 2021, https://www.census.gov/data/tables/time-series/demo/voting-and-regis­tra­tion/p20–585.html. — have always deserved better. But in this era of the Big Lie, when merchants of misin­form­a­tion seize any excuse to shake the nation’s trust in elec­tions and elec­tion offi­cials face unpre­ced­en­ted threats, foot­note17_h6na­jw8 17 See gener­ally Bren­nan Center for Justice and Bipar­tisan Policy Center, Elec­tion Offi­cials Under Attack, June 16, 2021, https://www.bren­nan­cen­ter.org/our-work/policy-solu­tions/elec­tion-offi­cials-under-attack. curing the infam­ous dysfunc­tion of the NYC BOE is crit­ical for the entire nation. foot­note18_auir43n 18 Philip Bump, “New York’s Mayoral Elec­tion Is a Mess. This Does­n’t Some­how Prove Donald Trump Right,” Wash­ing­ton Post, June 30, 2021, https://www.wash­ing­ton­post.com/polit­ics/2021/06/30/new-yorks-mayoral-elec­tion-is-mess-this-doesnt-some­how-prove-donald-trump-right/.

End Notes