Letters to N.Y. Election Officials on Treating Affidavit Ballots as Voter Registration Applications

May 23, 2011

Robert Brehm
Co-Executive Director
New York State Board of Elections
40 Steuben Street
Albany, NY 12207

Todd Valentine
Co-Executive Director
New York State Board of Elections
40 Steuben Street
Albany, NY 12207

Dear Mssrs. Brehm and Valentine:

We write on behalf of the undersigned organizations to notify you of our concern about the New York State Board of Election’s potential noncompliance with Section 8–302 of the New York Election Law (“Section 8–302”).

In 2010, the New York State legislature amended Section 8–302 to ensure affidavit ballots are treated as applications to register to vote or change party enrollment.[1] Section 8–302 previously provided that the State Board of Elections shall prescribe the form of the affidavit printed on the envelope in which an affidavit ballot is cast.[2] As amended, the new law provides that “[s]uch form prescribed by the state board of elections shall request information required to register such voter should the county board determine that such voter is not registered and shall constitute an application to register to vote.”[3] The law ensures that eligible, unregistered voters who in good faith cast an affidavit ballot that is ruled invalid nevertheless become registered to vote in future elections.

The current affidavit form fails to request all of the information necessary to process a new voter registration. Instead, affidavit voters seeking to register to vote must fill out a separate registration form located on the opposite side of the affidavit ballot envelope. As a result, many voters who in good faith take an oath affirming they are registered to vote do not fill out the separate registration form and continue to remain unregistered for future elections.

By failing to consolidate the affidavit form with the questions needed to register voters, the State Board of Elections may be in violation of Section 8–302. In any case, this oversight contravenes the intent of the New York State legislature by significantly decreasing the number of affidavit voters who become automatically registered for future elections. Based on conversations between Jerome Koenig and the staff of the New York City Board of Elections, it is our understanding that of the 5,000 persons who cast invalid affidavit ballots in Manhattan in the 2010 general election, nearly forty percent did not complete the registration form on the back of the affidavit ballot envelope.[4] This is precisely the consequence the New York State legislature intended to avoid by requiring form affidavits to double as voter registration applications.

No doubt, this problem exists in counties across the state and we are concerned that continued noncompliance with section 8–302 has the potential to disenfranchise tens of thousands of voters across New York State in elections to come.

Fortunately, this problem is easily fixed. The Westchester County Board of Elections has designed its own form that consolidates the affidavit form with the questions required to gather information to register a new voter. Other counties may be hesitant to adopt a similar fix because the State Board of Elections is charged with prescribing the form of the affidavits.[5] Therefore, the State Board of Elections can and should alter its own affidavit form to be fully compliant with the letter and spirit of state law.

Conclusion

We hope that the State will promptly rectify its potential noncompliance with state law in order to facilitate voter registration for eligible, unregistered voters. Toward that end, we are eager to work with you to cure the deficiencies in the State’s affidavit form. We would be happy to provide assistance in developing an affidavit form that effectively doubles as a voter registration form. We will follow up on this letter with a call to you next week. We would be glad to discuss potential solutions to our concerns and hope to meet with you at your earliest convenience.

Thank you for your attention to this matter.

Sincerely,

Margaret Fung
Executive Director
Asian American Legal Defense & Education Fund
99 Hudson Street, 12th Floor
New York, NY 10013

Wendy Weiser
Director, Democracy Program
Brennan Center for Justice
161 Avenue of the Americas, 12th Floor
New York, NY 10013

Rima McCoy
Voting Rights Coordinator
Center for Independence of the Disabled, NY (CIDNY)
841 Broadway, #301
New York, NY 10003

Susan Lerner
Executive Director
Common Cause/NY
155 6th Avenue
New York, NY 10013

Steve Carbó
Director, Democracy Project
Demos
220 Fifth Avenue, 5th Floor
New York, NY 10001

Miriam Adelman
President League of Women Voters of the City of New York
4 West 43rd Street
New York, NY 10036

Aimee Allaud
Elections Specialist League of Women Voters of New York State
62 Grand Street
Albany, NY 12207

Jerome A. Koenig
320 West End Avenue
New York, NY 10023

Neal Rosenstein
Government Reform Coordinator
New York Public Interest Research Group, NYPIRG
9 Murray Street
New York, NY 10007

Ruth Acker, President
Marjorie Shea, Elections Specialist
Women’s City Club of New York
307 7th Avenue, Suite 1403
New York, NY 10001

cc: Board Commissioners
New York Assemblymember Brian Kavanagh
New York Senator Joseph P. Addabo, Jr.

[1] 2010 N.Y. Laws 62.

[2] N.Y. Elec. Law § 8–302 (3)(e)(ii) (providing “such affidavit shall be in a form prescribed by the state board of elections, shall be printed on an envelope of the size and quality used for an absentee ballot envelope, and shall contain an acknowledgment that the affiant understands that any false statement made therein is perjury punishable according to law”).

[3] Id.

[4] Email from Parnell Sena, New York City Board of Elections to Jerome Koenig (Feb. 25, 2011).

[5] N.Y. Elec. Law § 8–302 (3)(e)(ii).

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May 23, 2011

Juan Carlos Polanco
President
Board of Elections in the City of New York
32 Broadway
New York, NY 10004

Dear Mr. Polanco:

We write on behalf of the undersigned organizations to notify you of our concern about the New York City Board of Election’s noncompliance with Section 5–304 of the New York Election Law (“Section 5–304”).

In 2010, the New York State legislature passed a law amending various sections of the New York Election Law to ensure affidavit ballots are treated as applications to register to vote or change party enrollment.[1] Section 5–304 now provides that when “a voter has cast a ballot in an affidavit ballot envelope on which such voter claims a party enrollment different from the enrollment in the records of the board of elections, such affidavit shall be treated as an application for change of enrollment.”[2] Notably, this language requires an affidavit on an affidavit ballot envelope to be treated as an application for a change of enrollment without regard to whether the ballot inside the envelope is ever counted. The law ensures that many eligible voters who cast a ballot that is ruled invalid during a primary election are nevertheless permitted to change their party enrollment for future elections.

It is our understanding that the New York City Board of Elections has consistently violated section 5–304 by failing to treat unopened affidavit ballots as valid applications for change of enrollment when voters fill out the ballot by indicating a party enrollment that is different from the enrollment in the records of the board of elections. Information provided by the New York City Board of Elections has led us to conclude that more than sixty percent of the approximately 2,400 unopened affidavit ballots cast in Manhattan during the September 2010 primary elections should have been treated as valid applications for change of enrollment. We are concerned that continued noncompliance with section 5–304 has the potential to prevent thousands of voters in New York City from participating in primary elections in years to come.

We hope that the City will promptly rectify its noncompliance with state law in order to facilitate change of enrollment for voters in New York City primary elections. We will follow up on this letter with a call to you next week. We would be glad to discuss potential solutions to our concerns and hope to meet with you at your earliest convenience.