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Testimony of
The New York State Citizens’ Coalition on HAVA Implementation
on the
Draft State Implementation Plan
before the
New York State HAVA Implementation Task Force
on
July 10, 2003
The New York State
Citizens’ Coalition on HAVA Implementation is an ad hoc and diverse
coalition of Good Government, Voting Rights, Racial Justice, Disability
Rights, and Language Rights organizations and academics who are concerned
about the way in which New York implements the Help America Vote Act
(HAVA.) We are committed to protecting voting rights and improving the
electoral process in New York. The Coalition includes the Asian American
Legal Defense & Education Fund (AALDEF), the Brennan Center for
Justice at NYU School of Law, Citizens Union, Common Cause/NY, DEMOS,
Disabilities Network of New York City, Eastern Paralyzed Veterans Association,
New York Immigration Coalition, New York Lawyers for the Public Interest,
the New York Public Interest Research Group, (NYPIRG), People for the
American Way/NY, the Professional Staff Congress and several other organizations.
The testimony we provide today on the Draft State Implementation Plan
represents the collaborative efforts and opinions of this Coalition.
Certain member organizations have not yet had the opportunity to approve
formally this testimony, and we will apprise the Chairman if there are
any changes or objections from the boards of these organizations.
The Help America
Vote Act of 2002 (“HAVA”) holds great promise to improve
election administration in New York State, but also holds great peril
that decades of long fought reforms to enfranchise the state's diverse
populations will be thwarted at the polls. The New York State HAVA Task
Force has issued a Draft State Implementation Plan (“Draft Plan”
or “Plan”) for public comment in June 2003 pursuant to the
requirements of Section 254 of HAVA. The Draft Plan includes many encouraging
statements of intent to improve New York State’s elections. Unfortunately,
the Plan includes very few specifics and, even more disturbingly, no
recommendations for important legislative changes that would facilitate
the best results from the state’s implementation of HAVA.
Prior to commenting
on the substance of the Draft Plan, the Coalition must first note what
we believe to be the primary reason for the Plan’s substantive
deficiencies: a flawed planning process. As we have noted on earlier
occasions, the composition of the Task force fails to represent adequately
the diverse citizens of New York State, especially those racial, ethnic
and language minority communities protected under the Voting Rights
Act who are entitled to representation as “stakeholders”
on the Task Force pursuant to HAVA. Nor is the Task Force sufficiently
diverse in terms of gender or geography.
Task force meetings
were also deeply flawed. With few exceptions, the Chairman did not distribute
briefing papers on relevant topics to members, did not form any working
groups or subcommittees, and never sought a vote on a single substantive
issue. The members were effectively discouraged from exploring or resolving
implementation issues in any meaningful or systematic way. Indeed, there
was a vocal dispute as to whether the task force members themselves
would be able to review and revise the Draft Plan prior to its public
release and no meetings of the Task Force were scheduled after members
received the draft – clear signs that the Task Force is viewed
by the Governor and the Chairman as a rubber stamp rather than the true
authors of the plan. This is in striking contrast to the majority of
other states where the HAVA planning committees included much broader
stakeholder representation, held numerous subcommittee meetings, developed
formal recommendations to the full committee, and had substantial input
into the final product.
With respect to
the Plan itself, its principal problem is the lack of specificity that
pervades the document. While the Plan reiterates HAVA’s requirements
and frequently speaks laudably of New York State’s commitment
to comply with the same, the Plan includes few details about how New
York’s state and local election officials will, in fact, implement
these requirements and improve our election process. This essential
failure to articulate a true plan of action threatens to leave important
goals unmet, or at the very least, to leave too many items to the sole
discretion of the staff of the New York State Board of Elections (the
“State Board”) without public comment or participation.
Today we will focus
on seven key areas of HAVA that are not adequately addressed by the
Draft Plan: (1) voting system standards; (2) provisional voting; (3)
the creation of a computerized statewide voter list and related voter
identification requirements for voters who register by mail; (4) new
voter identification requirements; (5) voter education and election
worker training; (6) voters’ bill of rights; and (7) administrative
complaint procedures and judicial review. It is our hope that our testimony
will succeed in convincing the Task Force to incorporate many if not
all of its provisions into the final State Implementation Plan for New
York State (“SIP”) produced by the Task Force.
·
Voting System Standards
o Replacing Lever Voting Machines
HAVA requires that all voting systems meet certain requirements by the
first election after January 1, 2006, including that all lever machines
are replaced by that time if a state chooses to receive federal funds
under Section 102 of HAVA for this purpose. These requirements provide
New York and other states an opportunity to improve both the accessibility
and the accuracy of our elections through new technologies and improved
administration. The Draft Plan, however, fails to provide any details
to indicate that New York State will take full advantage of this opportunity.
With respect to the responsibility to replace the voting machines, the
Draft Plan merely reflects the status quo and thus fails to propose
improvements to New York’s system of machine purchases and maintenance.
In relevant part, it states that “Each county board of elections
is responsible for implementing the replacement voting system in their
county, however, the State Board is leading the statewide effort for
replacement and is therefore ultimately responsible for meeting this
performance measure.” DP at 10. Current state law allows and encourages
towns, villages, and a small number of counties to select and purchase
their own machines, albeit from among those certified by the State Board.
The status quo thus does not facilitate the selection or purchase of
a single, uniform voting system for the whole state.
The SIP should not only include the Task Force’s proposed changes
to existing state laws to allow for county ownership of the voting machines,
but also should articulate a more proactive, central role for the State
Board to ensure uniformity across the state. Specifically, the State
Board has the authority under existing law to certify a single voting
machine for use across the state to replace lever voting machines. The
SIP should call for all polling places to offer the same uniform, integrated
voting systems to all voters. This will ensure uniformity of the voting
experience and the same quality of service to all voters. Such a role
for the State Board would better facilitate collective purchasing of
the machines in larger quantities to achieve a better per unit cost
from the vendor in question. It would also minimize long-term repair
and upkeep costs, allow poll workers and maintenance workers to be trained
on the same machinery and software, uniform public education through
common media outlets, and an interchange of equipment and personnel
across county lines.
o Certification Process
The selection process for new voting machines in New York State must
be free of partisan lobbying and favoritism and instead should focus
squarely on the quality, features, and cost of the machines and software
under consideration. The Assembly has introduced and passed legislation
that would appoint an independent advisory panel to review and recommend
appropriate voting machine specifications for New York State. See A.8847.
In addition, under the Assembly legislation, the State Board would select
a single voting machine through a competitive bidding process that includes
meaningful opportunities for public comment. The Task Force should adopt
these proposals even in the absence of signed legislation and include
detailed language to that effect in the final SIP. In addition, the
final SIP should establish that any voting machine contracting process
should be transparent and open to the general public through public
forums and hearings.
o Full Face Ballot Requirement
New York State’s “full face ballot” requirement, if
left on the books, threatens to prevent New York from taking advantage
of the tremendous new voting machine technologies that the plurality
of other states are already purchasing. Because the finest new DRE machines
feature scrolling screens that show the voter each race separately and
consecutively, these machines do not comply with New York’s requirement
that all information on the ballot be printed within a single ballot
frame. See N.Y. Elec. L. § 7-104.1; N.Y.C.C.R.R. tit. 9, §
6209.2(a)(3). Unless the law and State Board regulations are changed,
New Yorkers will have to vote on machines that are neither as user-friendly
nor as accessible as those in other states. Virtually all observers
and elected representatives from across the political spectrum agree
that this requirement should be repealed, including Governor Pataki.
The Task Force should make clear its support for such repeal in the
final SIP. Anything less than such a statement of support will render
the Task Force and the SIP virtually irrelevant to any real and lasting
improvement of elections in New York State.
o Accessibility for Voters with Disabilities
The Draft Plan includes a brief discussion of the State Board’s
intentions to enhance accessibility of voting systems for voters with
disabilities, but lacks the specifics necessary to ensure meaningful
reforms. Specifically, the Draft Plan states that “the state will
engage in statewide efforts to ensure accessibility to voting systems
and all procedures directly connected to the election process.”
DP at 6. In addition, the Plan indicates that three steps that it will
take to improve accessibility, namely (1) replacing the lever voting
machines with “accessible” voting machines or rendering
existing machines more accessible with “accessible devices”
by the 2004 federal election, (2) “encourag[ing] public-private
partnerships to enhance the voting participation of all voters with
disabilities,” and (3) requiring county officials to report on
the outcomes of city and town inspections of polling places to determine
compliance with state and federal laws and regulations on physical accessibility.
DP at 11. While laudable, these steps are both overly vague and inadequate
to ensure truly enhanced accessibility. Perhaps most important is the
Draft Plan’s failure to address the most pressing barrier to the
purchase of truly accessible voting machines: New York State’s
anachronistic “full face ballot” requirement.
The final SIP should better address six critical areas that must be
addressed if New York State is serious about improving accessibility
to voters with disabilities. First, the SIP should expressly advocate
for the legislative repeal of the “full face ballot” requirement
found in N.Y. Elec. L. § 7-104.1. Without such repeal, the range
of voting machine technology that New York State can consider will be
severely limited. In particular, the DRE machines that allow voters
to scroll consecutively through the offices for which a vote is required
rather than face at least nine columns and rows at once greatly expands
access to voting machines for people with disabilities, particularly
those voters with cognitive disabilities. The accessible voting technology
survey conducted in January 2003 by the Office of the Manhattan Borough
President C. Virginia Fields, the Center for the Independence of the
Disabled in New York, and Independent Living Center in Manhattan showed
clearly that even the new full face ballot machines remain inaccessible
to voters with certain types of disabilities. The Task Force should
take this opportunity to express its support for repeal of this antiquated
requirement.
Second, the final SIP should state in much greater detail the types
of “accessible devices” and other alterations to existing
voting systems the State Board will require to improve accessibility.
Legislation passed by the Assembly specifically requires that at least
one voting machine in every polling place include human voice audio
voting, a handheld voting device, and sip and puff voting technology.
See A.8847. The SIP should identify these and other specific adaptive
technology and interfaces that the State Board will mandate for New
York State’s machines.
Third, the Draft Plan is entirely silent concerning the role, if any,
that representatives of the disability community and voters with disabilities
will play in selecting, reviewing, testing, and commenting on the voting
machine technologies available in New York State prior to their final
implementation. Currently, the Draft Plan makes only vague references
to federal and state laws and regulations regarding disability access,
and articulates no role for advocates or voters with disabilities in
the process. Such a regressive approach is doomed to failure in any
meaningful quest for truly accessible voting machines. As the Assembly
legislation does, the final SIP should provide for specific procedures
to obtain ongoing feedback from disability advocacy groups, such as
the New York State Independent Living Center (“NYSILC”),
and voters with disabilities on the different technologies being considered
for certification or purchase. New machine rollout should also include
extensive consumer use surveys executed throughout the rollout process
so that New York can adjust the voting system elements as conditions
in the field and needs of voters develop. In addition, the SIP should
expressly state that New York will adhere to the ADA standards adopted
in the Assembly legislation (A.5473-A), as well as all other applicable
federal and state standards.
Fourth, the final SIP should indicate that the State Board will apply
the broader definition of “disability” included in the New
York State Human Rights Law to determine who is covered by the disability
rights mandates of HAVA (1). The Task Force should
not simply take the low road when it comes to disability access; it
should take this opportunity to ensure that all voters with disabilities
have access to a voting machine in their district.
Fifth, to ensure polling place accessibility it is not enough for the
State Board to require counties to pass on information on inspections
gathered by cities and towns. Self-reporting of this kind is notoriously
ineffectual. Such a passive role for the State Board will lead only
to noncompliance and incomplete reporting by localities and counties.
Under New York election laws, the State Board has broad powers and the
duty to enforce the election laws and expeditiously investigate any
violations of the laws, including by appointment of special investigators,
issuance of subpoenas, inspections, judicial proceedings, and other
mechanisms. See N. Y. Elec. L. §§ 3-102, 3-104, 3-107. The
final SIP should expressly state that the State Board will implement
an enforcement program specifically to monitor and enforce polling place
accessibility requirements throughout the state. The SIP should include
specifics as to the personnel and other resources that the Board will
devote to this program. Specific amounts of HAVA monies should be earmarked
for targeted inspection of polling sites for accessibility, directly
or through contracts with independent living centers and Protection
and Advocacy organizations throughout the state. In addition to monitoring
county reports on accessible and inaccessible polling sites to make
inaccessible polling sites accessible, funding should also be earmarked
for identifying alternate, accessible or adaptable polling sites within
the immediate area of any inaccessible sites that cannot be readily
rendered accessible. The SIP should also indicate that the State Board
will produce a comprehensive guide to polling place accessibility for
state residents prior to every election to ensure that voters with disabilities
have full access to voting in their communities.
Finally, the final SIP should provide details as to how the State Board
will identify both public and private resources and the specific ways
in which each of those resources will be used in order to “enhance
the voting participation of all voters with disabilities.” These
should include NYSILC, all independent living centers across the state,
vocational rehabilitation agencies, the State Advocates office, Protection
and Advocacy organizations, all officials elected to county, local and
statewide elected office. Part of the effort should include paid and
public service announcements in various languages, distributed through
all newspapers used for any official state notices and significant non-English
language papers, and all of the larger radio and television broadcast
media in the state, as well as on the Board’s website. Clear and
explicit written and recorded information on the voting systems should
be widely distributed to voters and organizations that represent voters
with special needs and voters whose primary language is other than English.
Publicity should include information about the voters’ Bill of
Rights, the right to accessible polling places, the use of any new voting
systems including all of its adaptive equipment, updated information
about newly accessible polling sites, the procedure for obtaining absentee
ballots, and the means of filing complaints about any violation of voters’
rights.
o Accessibility for Voters with Limited English Language Proficiency
Section 301 of HAVA requires that New York State’s voting systems
be accessible to language minorities and specifically incorporates the
Language Assistance Provisions of the Voting Rights Act (i.e., Section
203). 42 U.S.C. § 15481(a)(4). Under Section 203, certain counties
must provide translated ballots, voter registration forms, voting instructions,
and all other voting materials and provide interpreters to assist limited-English
proficient voters. After Census 2000, language assistance is required
under the Voting Rights Act, and now also HAVA, in the following languages
and New York counties: Queens: Korean, Chinese, Spanish; Kings, New
York: Chinese, Spanish; Bronx, Nassau, Suffolk, Westchester: Spanish.
Given the opportunity presented by new voting machine technology, translating
the ballot into numerous languages will require little added expense
or difficulty. The final SIP should therefore do a lot more than the
minimum required under the Voting Rights Act. Multiple language options
should be made available on a statewide basis. The Draft Plan, however,
simply refers generally to complying with the Voting Rights Act and
indicates that the State Board’s role is simply to provide “assistance
and cooperation” with the county boards.
In fact, the State Board must and can do much more to provide alternative
language accessibility to New York State’s many citizens with
limited English proficiency and the final SIP must reflect that responsibility.
First and foremost, the SIP must articulate the State Board’s
plan to address the numerous existing deficiencies in the state’s
current provision of language assistance under Section 203. Specifically,
the SIP should outline a program for the State Board to address the
many instances of mistranslated ballots and failures to provide voters
with translated materials or interpretation in the required languages
at polling places.
Second, the final SIP should identify ways to expand language assistance
beyond the minimum requirements of the Voting Rights Act and develop
a specific methodology to determine which languages and counties to
include. At a minimum, voter registration forms, instructions in how
to vote/operate voting machines, nonpartisan election guides, and ballots
should be translated into Bengali, Urdu, Russian, and Haitian/Creole
in New York City. Also, the state should provide assistance for Spanish-speaking
voters in certain counties in Upstate New York not currently receiving
such assistance. The SIP should also mandate that anything written,
presented auditorily or displayed in English also be displayed, at least,
in Spanish, Chinese, and Korean for voters with both disabilities and
limited English language proficiency.
Third, the final SIP should indicate a firm commitment to certify and
purchase only those voting machines that will be equipped to comply
with expanded federal language requirements in the future.
o Voter-Verifiable Audit Trail
It is unfortunate that the Draft Plan does not discuss the issue of
audit trails produced by the new voting machine technologies. Some have
called for a physical record of each vote to diminish security concerns
over electronic election counts and help to ensure the integrity of
elections by allowing officials to double-check results if discrepancies
or other concerns arise. Other advocates have expressed serious concerns
that any requirement of a voter-verifiable audit trail would inevitably
raise the cost of machines, and thus reduce the resources available
to ensure fully accessible voting systems; set up a dual system where
voters with limited vision would not enjoy the same level of privacy
as other voters; and perhaps lead to printer malfunctions and longer
lines on Election Day. The citizens of New York are ill-served by a
planning document that fails to address any of these complex and thorny
issues.
o Versatility of Machines
The final SIP should state expressly that the State Board will ensure
that any new voting systems certified or purchased in New York State
must be sufficiently versatile to be used in elections that feature
instant run-off voting or cumulative voting.
o Security
The need to address
the integrity of the vote is a vital one. State and independent experts
should fully review the hardware, source-code and software of any voting
system to test its security and to assure the public of the system's
integrity. Additionally, we have serious concerns about the potential
privatization of the conduct of elections. The final SIP should indicate
the Task Force’s recommendation that new voting technologies where
both the ballot preparation and counting of election results remain
in public hands should be favorably considered by the State Board and
local jurisdictions. A wide number of security concerns and different
approaches to security are being debated across the country. It is unfortunate
that the Draft Plan addresses none of these issues.
· Provisional Voting
Although New York State is fortunate to already have in place a system
of provisional voting known as affidavit balloting, the HAVA implementation
process offers an opportunity to improve New York’s system.
The SIP should establish a statewide policy to be put in place by the
State Board that all affidavit ballots cast by voters who are not currently
registered should be processed as voter registration applications. At
present, when a voter votes by affidavit ballot and the vote is not
counted, the board of elections notifies the voter of this fact by mail
and sends the voter a registration application. These steps should,
in effect, be consolidated. If the voter is not registered in New York
State or registered outside the county in which he is voting, the affidavit
and ballot envelope should be considered a registration form by boards
of elections and the voter should be registered in accordance with state
law. This would conserve public resources while ensuring that the voter
is registered. In addition, the affidavit ballots should be used to
update information in a voter’s registration record if the voter
is already registered.
Further, the Task Force should consider providing express recommendations
to broaden the universe of valid affidavit ballots. At present, a voter
whose vote by affidavit ballot was cast at the wrong polling place will
not be counted even for those offices that cover jurisdictions larger
than the relevant election district. The Task Force should explore reasonable
changes to the current system to require county boards of elections
to count votes for certain offices by voters who voted at the wrong
polling place.
· Computerized Statewide Voter List and Related Voter
Identification Requirements
o New York Voter Registration List
The creation of an official, uniform and nondiscriminatory statewide
computerized voter registration list that is centralized and interactive
marks a major departure from established voter registration procedures
now in place in New York’s sixty-two counties. It also passes
to the state responsibility for a threshold requirement for voting that
had historically been performed by county boards of elections.
Unfortunately, the Draft Plan is distressingly vague as to how the State
Board will meet these substantial new responsibilities. With no detail,
the Plan merely reports that the State Board will “implement a
statewide voter registration list . . . define functional requirements,
roles and responsibilities of carrying out the functions of voter registration
. . . [and] determine, define and establish technical and functional
requirements. . . .” DP at 8. The Plan also indicates that the
State Board will establish procedures to use the database of the New
York State Department of Motor Vehicles, and access the Social Security
Administration and other statewide databases.
If the State Board is truly committed to “enhancing the administration
of voter registration and the election process for the citizens of New
York,” then the final SIP must provide a detailed blueprint that
incorporates the following elements:
First, the responsibility and authority for accepting, verifying, updating
and purging voter registrations lies with the state alone. The State
Board must issue sufficiently clear statewide standards for county election
officials to follow as they interact with the statewide list in order
to avoid non-uniform treatment of voter registration applications or
inconsistent list maintenance procedures. The State Board must also
ensure that the list contains the names and registration information
of every legally registered voter in the state, and that no voter be
removed from the list without full compliance with the “notice
and opportunity to correct” provisions mandated in the National
Voter Registration Act. To that end, the final SIP should include specific
guidance to county boards of elections to ensure that voters are not
purged from the statewide list without such notice and opportunity to
correct the voter’s registration.
Second, the final SIP must designate a broad and specific network of
state databases that the State Board will access to verify a registrant’s
identity and eligibility to vote in a certain jurisdiction. The Draft
Plan’s vague reference to “other statewide databases”
is insufficient. Instead, the document should call on the State Board
to design a computerized statewide registration system that can access
data from the DMV and other agencies where voter registration is offered
under the National Voter Registration Act (NVRA), Medicaid/Medicare
offices, other social service agencies, judicial and correctional agencies,
public education, financial aid, small business and disability services
offices. A system of this reach can best accomplish HAVA’s goal
of producing clean and accurate voter lists without creating new and
unjustifiable barriers for eligible voters.
o Driver’s License and Social Security Numbers on Voter Registration
Forms
The Draft Plan notes HAVA’s requirement that new registrants provide
a driver’s license or the last four digits of their social security
numbers, and indicates that the State Board will access the databases
of the Department of Motor Vehicles and the Social Security Administration
to verify voter registration identification. DP at 9. Regrettably, the
Plan offers no guidance to county boards of elections or notice to the
public as to the treatment of voter registration forms with erroneous
or missing driver’s license or social security numbers. Such guidance
and notice is essential, given the fact that such data are vulnerable
to errors either in transmission or through a failure to integrate these
data sufficiently with the relevant registered voter databases. This
may produce difficulties in matching database records, and thus leave
many new voters unregistered.
As an initial matter, the final SIP must make clear that a registrant’s
failure to provide a driver’s license or partial social security
number will not cause a rejection of the registration application (2).
Instead, the state will be required to assign the registrant a unique
identifying number that will be used in the statewide voter registration
database. The State Board must in unequivocal terms direct that county
boards of election follow the proper procedure and disenfranchise no
citizen for failure to provide a driver’s license or partial social
security number.
The Draft Plan should also provide guidance as to how county boards
of elections are to use this broad network of databases. Where, for
example, a registrant provides her name and date of birth but only a
partial or incorrect driver’s license number, the county board
should access the DMV database (and all additional databases integrated
into the statewide system) to correct the driver’s license number
and continue processing the application for voter registration. Under
most circumstances, rejecting a registration without a valid driver’s
license or social security number would be a violation of HAVA.
Last, the Draft Plan must clearly state that responsibility over the
design and implementation of the new computerized statewide voter registration
system rests with the State Board. The State must ensure that county
and local election officers do not misinterpret the law’s requirements,
and have sufficient access to an extensive pool of state databases such
that voter information can be properly matched and voters registered.
· Voter Identification Requirements
The disproportionate impact of HAVA’s new ID requirements is dramatically
illustrated by the vast demographic difference in the state's population
that hold driver’s licenses, the key form of ID called for under
HAVA. In New York City only 53% of those 18 and over possess a license,
while outside of the City that number jumps to 93% of the population
over 18 years of age.
The Draft Plan states that New York State is “strongly committed
to diminishing the number of persons required to provide ID when they
vote. . . .” Unfortunately, the Plan is vague as to how the State
Board will accomplish that goal. The entire discussion of this critical
issue barely exceeds one page in the 51-page document. The final SIP
must outline a detailed plan to reduce the onerous impact of the new
voter identification requirements, as the Assembly has done in passing
its election reform legislation that is now in the Rules Committee of
the Senate. Further, the Plan's language appears to undermine attempts
to ensure uniform implementation of HAVA's ID requirements by recommending
that counties will remain responsible for all related aspects of voter
registration, “includ[ing], but not . . . limited to, the receipt
and processing of voter registration applications . . . ." DP at
8.
First, the HAVA Task Force should establish a clear, inclusive list
of acceptable forms of identification for county election officials
and others to adopt. The relevant legislation passed by the Assembly
(A.8842) includes such a comprehensive list that should be embraced
by the Task Force. The SIP should also make clear that current and “valid
photo identification” shall include any form of identification
containing a photograph of the voter, including non-driver’s identification,
valid student identification cards, and credit or automated teller cards.
A “current utility bill, bank statement, government check, pay
check, or other government document” should include a full list
of acceptable public documentation as is laid out in detail in our proposed
legislation (3).
Second, county boards of elections should be required to send to each
affected first-time voter who registers by mail a postage-paid mailer
in which the voter may send a copy of his qualifying identification
to election officers in advance of election day. This or a similar pre-election
procedure would greatly reduce the potential confusion and threats to
voters’ rights at the polls on election day. The SIP should include
this or similar requirements.
Third, HAVA’s new voter identification requirements only apply
to first-time voters who register by mail. Accordingly, the Task Force
should establish that only those voters who actually mail in their registration
applications shall be subject to these requirements. Voter registration
drives that collect registration applications from new voters in person
and then deliver these applications to election officials by hand or
even by mail should not be subject to these requirements under HAVA.
This is true even if mail-in registration forms are used for these registration
drives. If the voter herself registers in person, that should be sufficient
to serve the letter and spirit of HAVA to reduce voter fraud, regardless
of how the application form reaches the board of elections. The SIP
should clarify this definitional question for county boards.
Fourth, the SIP should eliminate the requirement for ID checks for certain
voters who move between counties in the state. Voters who move within
the same “jurisdiction” are exempt from the ID mandate required
of first-time voters registering by mail. With the creation of a single
statewide database of registered voters, “jurisdiction”
should clearly be defined to mean New York State. This will prevent
voters who move from one county to another from being subject to unnecessary
ID checks.
· Voter Education and Election Worker Training
The Draft Plan includes significant discussion of the need for improved
voter education and election worker training. The Plan envisions a “uniform,
statewide comprehensive training program for poll workers and election
officials,” new strategies to recruit election workers, and the
development of a voter outreach/education campaign. DP at 18-19. The
final SIP should, however, include additional details of the steps that
the State Board will take to educate the voters and train election workers
more fully.
o Voter Education
With respect to the new voting machines, mail and media will help New
York voters learn the voting system, but practice on the actual machines
will help a great deal more. New York voters have been voting on the
lever machines for nearly forty years; new, computerized machines will
prove to be a challenge to the voters. Once the state certifies or procures
these new machines, the State Board should sponsor demonstrations throughout
the state and each county should be required to hold demonstrations
in cities and towns to ensure that voters will be familiar with the
new machines prior to election day.
Currently, it is illegal to ask voters for ID at the polls. It needs
to be made clear to voters that certain first-time voters registering
by mail may be required to show ID at the polls if they do not provide
such ID by mail. Clear, plain language information listing voters’
rights when confronted with an ID check should be made available at
the polls. But the State Board should also ensure that such information
is also published in all newspapers used for official state notices,
and by all of the larger radio and television broadcast media outlets
in the state. The final SIP should outline a detailed plan for this
area of voter education.
o Election Worker Training
The proper measure of success is not how many poll workers and inspectors
are trained but instead how many are qualified to work on election day.
The final SIP should include not only a detailed statewide training
program, but also a uniform testing requirement for all election workers.
This should be a closed-book examination as required by section 3-412
(3) of the Election Law. The legislation passed by the Assembly provides
a valuable model from which to borrow provisions for inclusion in the
SIP. See A.8833.
In addition, the SIP should include plans to produce a training video
on election day procedures and HAVA requirements for distribution to
all poll workers statewide and shown on cable and public access networks.
This will also enable the voters to know what to expect at the polls.
Finally, the Draft Plan does not include any discussion about the recruitment,
training, or quality control for language interpreters. The final SIP
should include provisions to ensure that all interpreters are trained
and that quality control measures are in place in every county and local
jurisdiction.
· Voters’ Bill of Rights
In the Draft Plan,
there is no definitive outline or draft of a Voters’ Bill of Rights.
HAVA requires all polling places to post certain information on election
day, including but not limited to a sample ballot, instructions on how
to cast a provisional ballot, polling place hours, general information
on voting rights under state and federal laws, and instructions for
first-time voters who registered to vote by mail. A draft of the proposed
Voters’ Bill of Rights should be provided immediately on the State
Board’s website to allow for notice and meaningful input during
the public comment period. The State Board of Elections should also
mail the Voters’ Bill of Rights to every registered voter in the
state prior to the general election, request that major news media display
or announce these rights as part of their election coverage, and display
these rights prominently on the websites of all county boards of elections
and of the State Board. In addition to an English version, the state
should post translated versions in Spanish, Chinese, and Korean, and
in other languages not covered by the Voting Rights Act but spoken by
a large number of New York citizens. The final SIP should not only provide
a draft Voters’ Bill of Rights in its pages, but also outline
the details of such plans to disseminate the document to voters.
At a minimum, the
Voters’ Bill of Rights should include the following provisions
and allow for the filing of an administrative complaint with the State
Board of Elections to enforce its provisions. The Voters’ Bill
of Rights should include, but not be limited to the assurance that every
voter has a right to:
a. Non-discriminatory equal access to voting;
b. You do not have to show any identification to vote or proof of citizenship
unless you are a first time voter in the state who registered through
the mail. The voter ID card you may have received in the mails is intended
to help you locate your polling site, but it is not required to vote.
As a voter you will have to sign your name in the poll site book.
c. You may take any information in to the polls with you.
d. Inspect an accurate and informative sample ballot before voting;
e. A ballot format that permits clear identification of candidates and
the accurate implementation of your preferences in the selection of
candidates;
f. Request and receive a demonstration of proper use of the voting machine
prior to voting;
g. Request and receive assistance from a bipartisan team of poll workers
who must provide aid without influencing your vote, or from anyone you
choose, other than your employer or union representative;
h. Vote by affidavit ballot at the polling place in the election district
where you live, and have your vote counted if the election officials
can confirm that you live in that district;
i. Vote, even if your eligibility to vote is challenged by election
officials or your name is not on the registration lists;
j. Vote by regular ballot after signing a form correcting your name
or updating your address if you have changed your name or moved within
the same election district since the last general election;
k. Register one time and not be removed from the list of registered
voters due to failure to vote so long as you reside at the address for
which you originally registered;
l. Be informed by local election officials before your name is purged
from the state’s voting records, and be informed of the process
for challenging such a purge at least 90 days before the election;
m. Be informed of the process for restoring your right to vote if you
lose that right due to conviction of a crime;
n. Vote outside of your polling place within 50 feet of the entrance
to the building if you are elderly or disabled;
o. Vote independently and in privacy at a polling place, regardless
of physical disability;
p. Vote by paper emergency ballot if the voting machine is broken or
otherwise not operable when you come to vote;
q. Receive and use a replacement ballot, if your ballot is defective,
mutilated, or spoiled, or if you make a mistake and you have not cast
your ballot;
r. Receive assistance if you cannot read, or operate the voting machines
because of a disability, or are visually impaired;
s. Bring a minor or disabled child into the voting booth with you;
t. Demand translation in Spanish, Chinese, or Korean at designated polling
places;
u. Vote or wait to vote in a manner free of intimidation and coercion,
without anyone electioneering or otherwise attempting to influence your
vote in the polling place or in any public street within a 100 foot
radius of the polling place;
v. Vote, even if you have been convicted of a felony but have served
the full length of your sentence, including any period of parole, were
not sentenced to a prison term or have had that prison term suspended,
and have registered to vote since that time; and
w. Vote if you are in line when the polls close at 9 pm, or at any other
time between 6 am and 9 pm.
·
Administrative Complaint Procedure and Judicial Review
HAVA requires that
states receiving funding to implement this legislation develop procedures
for administrative review and alternative dispute resolution of complaints
of violations. No express provision is made for state court review of
such violations, though such review is not prohibited and is critical.
While the Draft Plan provides for such a procedure, it leaves most of
the details to the future discretion of the State Board. DP at 39-40.
The final SIP should
articulate in detail the complaint procedure to protect voters: (1)
administrative complaint review by the State Board, (2) an independent,
alternative dispute resolution process, and (3) judicial review in state
court of final determinations produced by the administrative complaint
process. In addition, the Task Force should encourage the Legislature
to authorize the attorney general to investigate and enforce the law
as another independent protection of voters’ rights.
In the first instance,
complaints should be heard by the State Board through an internal review
procedure. The key points concerning this first step include timely
resolution within 90 days of the complaint being filed, the State Board’s
provision of a full hearing procedure with costs borne by the Board
rather than by the complainant, and detailed plans to ensure access
to the complaint procedure for voters with disabilities or with limited
English proficiency. All forms and instructions, and any and all written
communications with complainants, must be made available not only in
English but also in those languages required by sections 4(f)(4) and
203(c) of the Voting Rights Act of 1965 and HAVA. Such materials shall
also be made available in a form accessible to the blind and visually
impaired.
If the
complainant prefers, or if the State Board does not issue a final determination
within 90 days, then a complaint must be referred under HAVA to an alternative
dispute resolution procedure established by the state. Unless the complainant
consents to a longer period, this second stage must produce a final
determination within 60 days after referral. For this second stage,
the State Board should appoint an independent screening committee to
select independent, qualified arbitrators whom the State Board would
then appoint as outside arbitrators. That committee would consist of
one representative from each of the Democratic and Republican Parties
of New York State, and one representative not enrolled with either of
these parties. Cases would be referred at random to the appointed arbitrators,
who would hold quasi-judicial hearings with some, though not nearly
all, of the customary procedural rules of the courtroom. The arbitrator
should be granted subpoena power to procure testimony and documents,
and the authority to permit depositions to be taken and other discovery
to be sought. The parties should be allowed to examine witnesses fully.
All expenses involved in recording the proceedings and the arbitrators’
fees should be paid by the State Board. As with the initial stage of
this process, it is important that all proceedings and communications
during the alternative dispute resolution stage be made fully accessible
to those who have disabilities or have limited English proficiency.
The third and final stage in the complaint review process is judicial
review. All complainants should be notified at several points during
the first two stages of the complaint process that they have the right
to obtain judicial review of the final arbitration determination in
state court. In essence, such review would come as the result of an
Article 78 proceeding brought in a New York Supreme Court. The final
SIP should include a statement of this right, as well as the notification
requirement, and a commitment that the State Board will educate voters
on this point.
(1) "Disability" under the New York State
Human Rights Law means:
(a) a physical mental or medical impairment resulting from anatomical,
physiological or neurological conditions which prevents the exercise
of a normal bodily function or is demonstrable by medically accepted
clinical or laboratory diagnostic techniques or (b) a record of such
impairment or (c) a condition regarded by others as such an impairment
. . . .
N.Y. Exec. Law § 292(21). This definition is broader than that
contained in the Americans with Disabilities Act (ADA) in that it does
not require that a limitation be "substantial" or that it
be a limitation to a "major life activity."
(2) Senator Dodd, the chief Senate sponsor of HAVA, made clear the states’
responsibility to implement HAVA in a manner that preserves voters’
access to registration, and indicated the drafters were careful to ensure
such flexibility:
[N]othing in this section [i.e., § 303(a)(5)(A)] prohibits a State
from accepting or processing an application with incomplete or inaccurate
information. Section 303(a)(5)(A)(iii) specifically reserves to the
States the determination as to whether the information supplied by the
voter is sufficient to meet the disclosure requirements of this provision.
. . . Moreover, nothing in this section prohibits a State from registering
an applicant once the verification process takes places, notwithstanding
the fact that the applicant provided inaccurate or incomplete information
at the time of registration . . . or that the matching process did not
verify the information.
Floor Statement of Connecticut Senator Christopher J. Dodd, October
16, 2002, available at http://www.congress.gov/cgi-lis/query/Z?r107:S16OC2-00.
(3) These forms of acceptable identification should include but not
be limited to: voter registration cards, Electronic Benefit Transaction
(EBT) cards, public housing lease and rent statements and agreements,
including rent statement agreements provided pursuant to subsidized
housing programs, public housing identification cards, Social Security
Administration check statements, student identification cards or tuition
statements or bills from public colleges and universities, insurance
cards issued pursuant to government administered or subsidized health
insurance programs, copies of correspondence from a federal, state or
local government, bills from a federal, state, or local government,
tuition bills and statements from public colleges and universities,
a sample ballot pamphlet for the election sent by state or local election
officials, discharge certificates, pardons, or other official documents
issued to the voter in connection with the resolution of a criminal
case, indictment, sentence or other matter, in accordance with state
law, senior citizen discount cards issued by public transportation authorities
or providers, or identification cards issued by government homeless
shelters and other temporary or transitional housing facilities.
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