The Journal News
February 13, 2005
On Tuesday, Westchester Legislator Andrea Stewart-Cousins conceded to incumbent state Sen. Nicholas Spano in what had become the longest undecided legislative election in New York state history. Her concession followed three months of litigation regarding which disputed ballots were valid and would be counted in the race. Most attention to that litigation has centered upon its effect on the political contest. But the decision that came out of that litigation did more than help determine who will represent lower Westchester County in the state Senate. It also dealt a serious blow to the right of New Yorkers to have their votes counted.
In its decision, the state’s highest court permitted the Westchester County Board of Elections to invalidate the affidavit ballots of hundreds of eligible New York voters. These voters’ only mistake was to follow the instructions of state or local election authorities. In allowing the Board of Elections to void these votes, the court deprived many New Yorkers of their federal right to vote, and left unanswered the question of how to protect those rights in the future.
Minerva Perez is typical of the voter disenfranchised by the decision. On Election Day, she went to her usual polling place in Yonkers. When she arrived, Ms. Perez was informed that her name did not appear on the registration rolls. After visiting all of the voting tables in the polling place to see if anyone could find her name, she asked a poll worker whether this meant that she could not vote. The poll worker told Ms. Perez that she was at the correct polling place and that she could vote by affidavit ballot. When she asked the poll worker whether her affidavit ballot would be counted, she was assured that it would.
As it turns out, Ms. Perez was at the wrong polling place. Unfortunately, she never received a notice with the address of her correct polling place. And despite the fact that they had her address, poll workers did not inform her that she needed to vote somewhere else.
In filling out the affidavit ballot and casting her vote, Ms. Perez did nothing wrong. She committed no fraud and voted only in races for which she was entitled to vote. In fact, Ms. Perez did everything one might expect a reasonable voter to do. She was registered. She went to her usual polling place. She followed the instructions of poll workers. And she correctly filled out her ballot.
The Court of Appeals has ruled that, despite all of this, New York law permits election officials to void Ms. Perez’s vote. The fact that she voted at the wrong polling place even though she did so at the instruction of election officials was enough to invalidate her vote.
The first and 14th amendments give all citizens the right to vote and have those votes counted. But in a state as large as New York, election officials are bound to accidentally leave people off voting rolls, send them to the wrong voting districts or make other mistakes that make it difficult for some to exercise that right.
The purpose of affidavit ballots is to keep the government’s mistakes from disenfranchising voters. If election officials are not going to count affidavit ballots of voters who vote at the wrong polling place, they should tell those voters where they must vote to have their ballots counted. At the very least, they should be required to tell voters that affidavit ballots cast at the wrong polling place won’t count. In the case of Ms. Perez or the other voters disenfranchised by this decision, this didn’t happen.
The Help America Vote Act passed by Congress in 2002 addresses these issues directly. Among other things, the statute was intended to avoid the disenfranchisement of people like Ms. Perez. Under HAVA, affidavit (or provisional) ballots are meant to be “fail-safe.” This means that all legitimately cast affidavit ballots should be counted, regardless of flaws in state or local election policies that fail to inform people of their proper polling places or of the consequences of voting in the wrong place.
In its decision, the Court of Appeals allowed Westchester County to invalidate hundreds of ballots that were entitled to federal protection. The court decided this result was permitted under New York law. If that’s the case, New York law must change. Fairness, federal law and the United States Constitution require it.
ABOUT THE AUTHORS
Wendy Weiser is an associate counsel at the Brennan Center for Justice at the New York University School Of Law; Lawrence Norden is a volunteer attorney at the Brennan Center.