Last week American voters chose a new President.  The impacts of President Trump’s tumultuous presidency may last long after he leaves the White House.  For example, this week the U.S. Supreme Court will take up the question of the constitutionality of the Affordable Care Act – known as “Obamacare.” 

Will they kill the ACA?

This fight has been going on for over a decade with opponents – including the President – arguing that it is time to “repeal and replace” the ACA.

The campaign has been one of the most cynical in modern American politics.  Opponents – including the Republican party leadership – have since 2010 had time to develop their own alternative, but they never developed one.  The President has claimed repeatedly that he has a “great plan” that he’ll soon roll out.  After all this time it is hard to conclude anything other than they have lied to the American public about their intentions. 

After failing to kill ACA in Congress, it is now clear that the Republican strategy is to get the Supreme Court to do it. 

If the lawsuit brought by states’ Republican Attorneys General – and backed by the President –succeeds, protections for those with pre-existing health conditions would be jeopardized, public health programs – like those that provide coverage for flu shots and cancer screenings – would face cuts in funding, and about 23 million Americans would lose their health insurance – while the world is in the middle of the coronavirus pandemic.

Eight years ago, the ACA survived a legal challenge and was found to be constitutional, with the Chief Justice writing for the majority in a 5 to 4 decision.  The Court that will hear the case on Tuesday, however, has three new, more conservative, judges.  The most recent Trump appointee, Justice Amy Coney Barrett, has criticized the Chief Justice’s legal reasoning in that case.

There is a lot riding on the decision.

Here in New York, under the ACA the federal government picks up half the tab for the state’s Medicaid costs.  Currently, New York’s Medicaid program costs over $67 billion.  So, if the ACA is struck down by the Supreme Court, New York could lose tens of billions of dollars in federal aid used to provide health insurance to New Yorkers.

And that potential loss of federal aid comes at the worst possible time.  New York is facing a budget shortfall of as much as $13 billion this year and that could hit $60 billion cumulatively over the next four years.

If the Supreme Court strikes down the entire law, it is possible that the incoming Biden Administration could cobble together a new response.  If Democrats manage to take control of the Senate along with the House, they could enact fixes to the Court’s decision.

However, if the Democrats fail to win run-off elections in early January resulting in a divided Congress, such moves seem unlikely.  While the law is very popular among independent voters as well as Democrats, and even most Republican voters support its pre-existing condition protections, Republicans overall still want to see the law overturned.  As a result, it is hard to imagine a Republican-led Senate approving an expansion of health coverage.

Moreover, a failure to hammer out a bipartisan agreement would devastate New York’s finances and threaten the health of tens of millions of Americans. 

The ACA may be imperfect, but millions of Americans rely on it for their healthcare and most of us benefit by the preexisting conditions protections.  The Supreme Court should tread lightly in its review considering the law has survived reviews by prior courts and the enormous positive difference it makes in the lives of tens of millions of Americans.

Instead, the new President and the Congress should expand health care coverage.  While there is no good time to take away people’s health insurance coverage, doing it during a global pandemic is uniquely cruel.  Universal coverage should be the goal of public policy.

Here’s hoping that the Court leaves the ACA in place.

Regardless of the election results, the verdict is in on New York State’s system of running elections: It fails and is in desperate need of overhaul. 

There have been many changes to voting in New York prompted by the COVID-19 pandemic.  Most notably, New Yorkers could vote by mail, thanks to changes to the absentee voting rules.  And early voting approved in 2019 not only added the convenience of casting a ballot by machine vote before Election Day, but also helped reduce poll-site crowding on Election Day.

Yet, even the Mayor of the City of New York stood online for over three hours to vote – at an early polling site.  Long lines were not unique to New York City; early voting polling locations across the state often saw New Yorkers waiting for hours – despite a state rule that voters should not have to wait more than 30 minutes. 

Moreover, the performance of the Boards of Elections failed us too.  One hundred thousand New York City voters got the wrong absentee ballot envelopes; tens of thousands of votes were tossed due to technical problems with postal deliveries and other issues during the primaries; early voting polling locations were often located away from population centers; and at least in one case, college students had to schlep to the polls far from campus, even during the COVID-19 pandemic.

Governor Cuomo’s steps to liberalize voting were advanced with no obvious plan for implementation and left the boards of election starved for funds.  Absent adequate funding, even the best elections system cannot function – and New York’s system is far from the best.

Serious problems existed prior to the pandemic.  New York State’s elections are run by the two major political parties.  Making matters worse, local elections commissioners are often party leaders who, at best, face a conflict of interest in running elections fairly.  At worst, the scandalous mismanagement of elections and lack of accountability have led to voter disenfranchisement.   

These problems have long been festering and the political leadership of the state has been unwilling to change a system they have mastered.

Sadly, many of these problems are found throughout the country.  It is obvious that the nation’s elections system has become a partisan weapon instead of the way for citizens to exercise a core constitutional right.  But New York has been notable for its long track record of poor voter participation. 

It’s time for New York to show the nation how to run elections properly and fairly from registration to ballot counting. Here are some ideas:

1. Get rid of political party control.  Elections are about a partisan fight over ideas and to get public support.  Running those elections, on the other hand, are about the public interest.  Elections should be administered by an independent board, one that is free from political pressure.  This won’t be easy to do since political party control is enshrined in the state Constitution, but it has to change.
2. Professionalize elections.  Currently, the state and local boards of elections have two sets of staff – one Republican and one Democrat.  Get rid of these patronage staff and replace them with those covered by civil service protections.  There are no state constitutional protections here, patronage and party control must be replaced by independent professionals.
3. Provide necessary resources.  New York has never properly funded elections.  Voting is the cornerstone of our democracy; it should be treated as such.  As mentioned, voters should never have to wait more than 30 minutes to vote.  That means more polling places, better trained and paid poll workers, and more voting machines.  That costs money and the state has been running elections on the cheap for too long.
4. Modernize the system.  The Legislature has advanced constitutional changes that would allow would-be voters to register and vote on Election Day and eliminate the current absentee ballot requirement that the voter present an excuse to vote by mail.  If New Yorkers want to vote by mail, they should be allowed to do so.  Let’s make sure that mail-in ballots can be easily tracked by the voters, that ballots postmarked before or on the election date but delivered after are counted, and that the state requires polling places on college campuses.

When it comes to the most fundamental act in a representative democracy, New Yorkers deserve less of the blame game from elected officials and more improvements.  Changes that embrace independence, competence, resources, and reform should be a priority before the next election cycle.  Anything else is simply a defense of the failing status quo.  It is long past time for action, for comprehensive changes that anchor our democracy and fix the state’s failing system.

A little more than halfway through its fiscal year and New York State is dealing with a budget that is billions of dollars in the red.  Unless something changes, that’s the way it will be for the foreseeable future.  These deficits are largely the result of the cratering state finances driven by the catastrophic coronavirus pandemic.  In addition to the staggering toll in death and sickness from COVID-19, state revenues took a nose dive because New Yorkers have not been working, or shopping, or traveling, at pre-pandemic levels.

As the tide of red ink mounted, the Cuomo Administration’s strategy has largely been to hope for a Congressional bailout.  As it waits, the Administration has “withheld” funding from government services – both those directly offered by the state and those contracted out to non-profits.  The argument is that these “withholds” are temporary but could become permanent cuts if Washington fails to act.

The governor can take these actions unilaterally under powers granted to him by the Legislature.

As a result, non-profits are laying off staff and hundreds of millions of dollars have been cut from state support for colleges.  Those cuts from the state’s “withholds,” for example, have resulted in the loss of jobs for thousands of adjunct professors.

Recently, the “withhold” plan has hit the state’s legal system.    

Under current law, state judges are required to retire when they reach the age of 70.  This age was set over one hundred years ago when the productive life of New Yorkers was shorter.  In recognition of this obviously ageist practice, the courts allowed judges to stay on the bench if they passed cognitive and physical tests.  These certifications allowed judges to stay on the bench for 2-year extensions, which could be renewed until the age of 76.

The Cuomo Administration’s “withholds” strategy called for agencies to reduce spending for the court system by 10 percent.  The administrators of the state court system earlier this month decided, with little notice, to reject the renewal requests of 46 judges aged 70 or older whose terms expired at the end of 2020 and approved the requests of three such judges.

This decision to cut off these judges also results in cuts to their staffs as well.

The quick decision created a firestorm in the legal community.  Dozens of state lawmakers, bar associations, and civic groups criticized the plan.  While recognizing the fiscal problem, most argued that the decision of the court system was poorly timed and should be a last resort.  They observed that the courts have been operating on a limited basis during the pandemic and that has led to a backlog.  As the Bar Association of the City of New York commented, “These difficult times require experienced judges to cut through the considerable backlog of cases built up from the pandemic.”

Others noted that the loss of these judges would require the remaining jurists to deal with their own case backlogs as well as pick up the orphaned dockets from the loss of these four dozen judges. 

Of course, that would further exacerbate delays – and impact the public (as well as the morale of those still working within the court system).  After all, justice delayed is justice denied.

The savings that is anticipated from this move still leaves the courts with a yawning gap; the plan only addressed $55 million of the $300 million “savings” called for by the governor.

It’s not at all clear how the courts decided to make this choice.  Did they consider offering early retirement to all judges in order to obtain savings, for example, as compared to taking an easier approach of just cutting short the careers of these experienced jurists whose only “failing” is that their 70^th birthdays occurred this year or earlier?

Could they have waited, like the Cuomo Administration is doing, to see if the elections changed the Congressional approach toward helping the states?  If that occurs, replacing experienced judges with less experienced ones could haunt the state’s legal system for years to come.

While the “what ifs” can be debated, it is clear that experienced judges are being essentially laid off while the state faces a large backlog of legal cases.  State legislators have a responsibility to hold hearings to review this decision and ensure that the public has a better understanding of the court system’s logic, what the likely impacts will be, and how the delivery in justice in New York will be maintained.

And the public needs to hear from the Cuomo Administration about why when it comes to dealing with the budget shortfalls, only cuts are being implemented, cuts that have slashed services to those who need them, cuts that make it harder for colleges to teach, cuts that will inevitably diminish justice in New York.

It is our government.  We have a right to know.

For months, the state’s finances teetered on the edge as the Cuomo Administration attempted to keep New York’s budget in balance while hoping for a bailout from the Congress.  The bulk of the Administration’s hopes hinged on two tactics: one, borrowing to ensure that revenues covered expenses; and two, “withholding” payments to government agencies and non-profit service providers to keep expenses down.  The Administration “withholds” funding instead of cutting programs while waiting for a federal stimulus deal to fill up the state’s coffers.

This second strategy has been in place for half a year now and the “withholds” are taking their toll. 

For example, last week a coalition of over 150 student, faculty, and community groups representing public and independent institutions from across the state delivered a letter to Governor Cuomo and state legislative leaders calling on them to increase state revenue – instead of cuts or “withholds” – to support public and independent colleges and to strengthen financial aid and opportunity programs.

Colleges and universities in New York have been hit hard by the Administration’s “withholds” approach.  Higher education programs took the biggest hit in the first fiscal quarter of any category of spending – with over $400 million withheld in the April-June period.  All told, the state has withheld $2.2 billion from all services and programs.

The groups cited an example of the impact of the Administration’s approach – the City University of New York has been forced to lay off nearly 3,000 adjunct teachers.

As part of a COVID legislative package, the governor received a massive expansion of his already powerful executive powers, allowing him to unilaterally suspend specific provisions of any law of any agency.  A month later in the state budget agreement, those powers were further expanded to allow the governor to slash funds as he saw fit.  In both cases, the Legislature retained the power to overturn the governor’s decisions retroactively – a power which they have not yet used.

In the seven months since onset of the pandemic, in addition to the billions of dollars “withheld” from public programs, the governor issued more than 70 executive orders, covering a wide range of issues.

With higher education taking a real financial beating from the governor’s decision to “withhold” hundreds of millions of dollars from New York’s system of colleges and universities, the groups were arguing for restoration and a freeze on budget cuts.

The groups argued that higher education is the state’s investment in its future and cuts harm the state’s civic life and damage the future economy.  They argued that financial assistance is the way in which many low-income, working college students can afford a college degree.  And it is these students who come from families that often include “essential workers,” those who have had to endure hardships and health threats from COVID to keep the state’s economy moving.  It would be unfair to then make it harder for them to access a college degree.

They have already paid enough.

Therefore, the groups urged that any state action to address New York’s budget crisis meet the following goals:

1. The state should enhance its support for public colleges and universities.  The State University of New York and the City University of New York are already grappling with financial stresses.  The state should boost its financial support for SUNY and CUNY and do so in a way that freezes the cost of tuition. 
2. The state should maintain support for independent higher education institutions.  Many of the smaller, independent liberal arts colleges are teetering on the financial brink.  State support should be advanced to make sure that no institution fails during this pandemic.
3. The state should ensure that programs to maintain college affordability are strengthened.  The state’s financial assistance programs should be expanded to ensure that students who are enduring financial hardship are not turned away from college.  

The groups wrapped up their letter with a recommendation that the state boost revenues by collecting additional taxes from those with the greatest ability to pay them – the same New Yorkers who have been able to withstand the worst of the coronavirus ravages due to their wealth. 

No one disputes that the finances of the state – and the nation – are in bad shape from the economic impact of the pandemic.  But it is clear that those with the resources should shoulder the burden of balancing government’s finances, not those who need it most.

Led by the President, there is a nationwide attack on the mail in voting option.  The basic thrust of these attacks is that voting by mail is prone to “fraud” and that the mail-in votes will not be counted or will be lost. 

The evidence that those claims are not true is overwhelming and compelling.

So how come we still hear it?

As Mark Twain is credited with declaiming, “A lie can travel around the world while the truth is lacing up its boots.”  As that saying makes clear, the problem of responding to lies has always been difficult.  But in our hi-tech world with a dizzying number of social media platforms all operating on their own codes of ethics and fact-checking standards, pushing out a lie is easy to do and can travel many times around the world before truth has even gotten out of bed.

Add to that the power of the Presidency – and its unique bully pulpit – and it is not hard to see how easily the message can stick.  The facts are clear, however, that such charges are simply not true and they have the pernicious effect of sowing doubts about the validity of the outcome of the election. 

So, let’s help truth to lace up its boots.

Studies have shown that all forms of voting fraud are extremely rare in the United States.  A national study in 2016 found few credible allegations of fraudulent voting.  A panel that President Trump himself charged with investigating election corruption found no real evidence of fraud before he disbanded it in 2018.

Five states currently conduct all elections entirely by mail: Colorado, Hawaii, Oregon, Washington, and Utah.  They report very little fraud.

Here in New York, a voter can get a mail-in ballot through the state’s “absentee voter process.”  Under the state Constitution, voters who cannot make it to the polls due to illness or travel can request a ballot to mail in.  Due to the COVID-19 pandemic, all voters can now request a ballot if they are concerned that they will jeopardize their health by voting in person.  All the voter must do is obtain an application for an absentee ballot and choose “temporary illness” as the reason.

Voters can obtain the application to vote by mail by going to New York State Board of Elections at https://absenteeballot.elections.ny.gov/ and fill out the online form.  Or a voter can contact their local county board of elections by phone, email, fax, mail or in person.

After successfully submitting the application, the voter will then receive the ballot in the mail.   When the voter receives the ballot they must fill out the ballot properly – the instructions on how to do it are precise and must be followed to a “tee” – and then submit it.  A ballot must be postmarked no later than Election Day, November 3^rd, and received by the local county board of elections by November 10^th.  Be sure to put the proper postage on the outer envelope—two $.55 stamps are recommended.  A ballot can also be hand delivered to the relevant county board of elections office by November 3^rd at 9 p.m. or during the early voting period’s polling hours.  Early voting runs from October 24^th through November 1^st.  If a voter wishes to drop off the ballot to an early voting site, the voter must return it during normal polling hours from October 24^th through November 1^st.  

Voters do have options if they don’t want to mail in their ballot.  The most obvious option is to vote the old-fashioned way, on Election Day November 3^rd.  A second option is to cast a ballot during the early voting period.  New Yorkers have a window of opportunity to vote from October 24^th through November 1^st under the state’s early voting law.  In order to find out where to vote, go to the State Board of Elections at https://voterlookup.elections.ny.gov/ or check with your local county board of elections.

There are a lot of safeguards in place to make sure that a voter’s ballot is legitimate.  Under New York State law, for example, the name on every absentee ballot must be checked against the board of elections poll books, which must be signed by the voter each year.  Each book typically has several signatures from past election days for comparison. 

The important thing is to have a voting plan in place.  Voting for our representatives is the bedrock of our democracy.  Efforts to sow doubt, mislead, or lie about the process undermine public confidence and damage our democracy.  Don’t let the liars win; cast your ballot – either through the mail or in person.  Let’s make sure that in the race for democracy, truth wins.