With the passage of the John R. Lewis Voting Rights Act of New York (The Act) in 2022, new election rules were put in place that conflict with the state constitution and remove the long-standing authority of the bi-partisan boards of elections to carry out local election decisions.
One of the elements of the Act, called ‘preclearance’ specifically takes the constitutionally required bi-partisan board of elections authority out of local hands and puts it squarely at the feet of an elected, partisan, and almost always Democrat, Attorney General. Right now the NYS AG is Letitia James, who would have final authority over declaring winners and losers in elections.
South Shore Press (SSP) talked with Joe Burns, New York State election law expert and partner at Holtzman Vogel about the latest changes in New York’s election law.
SSP: In a nutshell, what will the preclearance part of the Act do?
Burns: The Act was passed in 2022, but the pre-clearance requirement takes effect in September 22nd. When it goes into effect, certain areas of New York will no longer be able to run their own elections under their own bi-partisan decision-making as they always have done.
SSP: Who will be subject to this rule?
Burns: Here's an interesting angle with the pre-clearance requirement. It doesn't apply to every local government, because you have to meet one of the criteria to be required to be covered under pre-clearance.
As you might imagine, the areas that are covered tend to be the bigger ones, and maybe more consequential ones for this year's election.
There are hot congressional races in many of the covered counties and the rule goes into effect just about two months before November’s elections.
New York City, its surrounding counties including Suffolk, Nassau, Westchester, Rockland, and Orange. The list also includes some towns, cities, and some school districts that run their own elections for budgets and school board seats.
SSP: Does New York have such a terrible history of running bad elections that making a law appointing an inherently political elected official such as the Attorney General to watch over things is necessary?
Burns: No, that's why this is especially puzzling. New York has a constitutionally required provision that every County Board of Elections be bi-partisan in nature. There is one Republican and one Democrat that co-leads every Board of Elections across the state. Each commissioner has the same power.
The New York State Constitution, Article 2, Section 8, guarantees bipartisan control of the Boards of Elections. Both the Democrat and Republican Election Commissioners must agree to any decisions made in a local election. It is a system of checks and balanced built right into the state constitution and it works well.
If one party wanted to do something nefarious that made it harder for a voting constituency on the other side to vote, there is no circumstance where the commissioner of the opposing party would agree.
The Democrat could not make a change making it harder for rural, largely Republican voters to vote and the Republican commissioner could not make a rule change making it harder for minority voters in urban areas to vote.
SSP: If one of the areas subject to preclearance wants to make a change under the new rule, what happens?
Burns: It's going to be interesting that starting in a couple weeks, September 22nd, any, even some very minor, election or voting related changes are going to have to be given the blessing of either the Attorney General's Office or one of four designated courts.
SSP: How would this work?
Burns: Let's say you have a poll site at 123 Huckleberry Lane, but 123 Huckleberry Lane burns down and you've got to move it.
What happens now, and we actually have a pretty good system, the two Commissioners talk about it and decide together that they will to move the polling station to 441 Huckleberry Lane.
That common sense approach, that works perfectly well and it protective of voters and their rights, is out the window under the new rules. Under the new rule, the commissioners have to get the approval of the Attorney General or go to one of four designated courts to get approval.
SSP: That sounds like the state is ‘fixing’ something that isn’t broken.
Burns: Exactly, right. You have to get both commissioners to sign off on it to begin with. So who's going to be harmed? You're already going to have one from each side agreeing to it.
SSP: So, what extra protection does preclearance really give to voters?
Burns: If anything, what it amounts to is more bureaucracy, more costs, and essentially the Attorney General might be managing boards of elections, which are supposed to be by design, under the state constitution, bipartisan.
SSP: It is difficult to understand what the point of this rule is other than taking power away from where the constitution intended and putting into the hands of an inherently partisan elected official.
Were there some cases or some instances where people were trying to move polling sites at the last minute or curtail hours to try to influence votes?
Burns: The short answer is no. New York does not have the history of racism and discrimination that other places do.
SSP: Why do this? What’s the motive? If nothing is broke, what are they supposedly fixing with this pre-clearance rule?
Burns: There's a lot of stuff that New York gets wrong and a lot of stuff that New York gets right. But I'll tell you one thing that New York gets right is the system of bipartisan control of the election system.
SSP: Getting back to motivation, why go to such lengths to fix something that was never broken. It seems like a blatant power grab to ensure Democrats have control over every aspect of elections.
Burns: Keep in mind that Democrats have been making moves to ensure there are fewer Republican representatives, or maybe none at all, for a long time. The recent change to force localities to move their elections to even years – presidential years – boosts turnout, and I think the Democratic state legislature believes this is a way to get more Democrats elected to local office in some of the competitive, “purple” counites. I know of no one who was clamoring to have local elections in even years, but the Democrats who lead the state legislature were in a rush to pass that bill.
SSP: The State seems to think that the New York John R. Lewis Voting Rights Act will thwart voter suppression or intimidation and protect minority-voting power.
Burns: We already have a good system. It sometimes can be cumbersome. It sometimes can be inefficient.
But, in terms of making sure that every voter of all political stripes, of all ideologies have faith and trust and confidence in the system, I can't think of a better way to do it than have what we have had for generations – bipartisan control of elections.
It is that not just that they're addressing a problem that doesn't exist, but there's the issue of consolidating power into a partisan elected office, which is against Article II, Section 8 of the state Constitution.
SSP: Since the way the entities covered by preclearance rule was modeled off of the Federal preclearance rule that the Supreme Court has since thrown out, isn’t this an issue for New York?
Burns: There might well be some federal arguments that this law violates the US Constitution - the 14th Amendment.
SSP: Generally speaking, what issues could be at play to make New York’s law also unconstitutional?
Burns: Well, I don’t want to speak with too much authority on that, but there are these triggers that would cause an entity to be subject to preclearance.
And one of these triggers uses race in a manner that I think very, very well might run afoul of the 14th Amendment.