New lawsuit could delay ranked-choice voting in NYC

New York City Council Member Laurie Cumbo
New York City Council Member Laurie Cumbo
William Alatriste for the New York City Council
Council Majority Leader Laurie Cumbo, one of the plaintiffs in the lawsuit to delay the implementation of ranked-choice voting.

New lawsuit could delay ranked-choice voting in NYC

An injunction could create uncertainty about what voting system people will use in June.
December 10, 2020

Six New York City Council members and several community groups have brought a lawsuit meant to delay the implementation of ranked-choice voting. The complaint aims to prevent ranked-choice voting from being used in an upcoming special election for Council District 24 in Queens, but could also lead to a delay that affects the June primaries as well.

Voters approved ranked-choice, or instant-runoff, voting in a ballot referendum last year, but concern has arisen that the city won’t be ready to implement the new system next year. It was the subject of a heated City Council hearing on Monday, when several of the Council members who brought this case expressed outrage about the rollout of education. “I believe there is an impossibility to educate people in the amount of time necessary on what ranked-choice voting will mean,” Council Majority Leader Laurie Cumbo, one of the plaintiffs, said at that hearing. She added that it should be “postponed for another election year.”

All six Council members on the lawsuit – Adrienne Adams, I. Daneek Miller, Robert Cornegy, Alicka Ampry-Samuel, Farah Louis and Cumbo – are members of the Council’s Black, Latino and Asian Caucus, which opposed ranked-choice voting in 2019 before the referendum vote. Each is also among the signatories of a caucus letter sent last month to Council Speaker Corey Johnson asking for a delay to implementation, in part citing the coronavirus pandemic. COVID-19 has become one of the key arguments for why the city won’t be able to educate voters adequately.

The complaint filed in Manhattan Supreme Court argues that the current rollout and education plan for ranked-choice voting violates the federal Voting Rights Act and state election law if implemented for the Feb. 2 election, which will decide who replaces Rory Lancman on the Council, after he stepped down to become New York state’s first special counsel for ratepayer protection. It adds that both the city Board of Elections and the Campaign Finance Board have failed to execute their charter-mandated responsibilities in time for that election, and that this will hurt communities of color and voters with limited proficiency in English. Before the lawsuit was filed, ranked-choice voting advocates already argued against that idea. “There is plenty of time for voters to learn to rank their vote,” Bertha Lewis, president of the Black Institute, said at Monday’s hearing. “It is time to stop raising groundless fears about RCV and get to work and help educate New York City voters about ranked-choice voting."

A decision in the case will likely have to come before the city BOE begins mailing out military ballots for the Feb. 2 election, it needs to do by Dec. 18. It’s unclear what would happen if a judge ruled the city cannot use ranked-choice voting for that election after military ballots have already been mailed. Lawyers in the case will seek a temporary restraining order soon.

But the complaint is asking for more than just a decision about that one special election. It requests a “permanent injunction enjoining and restraining” the BOE from implementing ranked-choice voting in any future election until “the City Board complies with the City Charter and take(s) all necessary steps required for proper implementation of RCV is necessary and appropriate.” The complaint asks a judge to order both the CFB and city BOE to develop and implement new plans to ensure that all New Yorkers, including non-English speakers, adequately understand the new system and their new ballots. That means the June primaries could be impacted.

Some view the lawsuit as a last-ditch effort by lawmakers who have opposed ranked-choice voting from the beginning to override the will of the voters after the referendum passed in 2019 with 74% of the vote. “There was no conspiracy to pass RCV, there was an election,” Common Cause New York Executive Director Susan Lerner said in a statement. “Seeking to invalidate the results of a decisive, free and fair election is an attack on our democracy.” 

Others are speculating that the lawsuit is trying to delay ranked-choice voting at least until after the June primaries next year, when Democrats will choose a mayoral nominee from an increasingly crowded field. Two of the Council members in the lawsuit – Miller and Cumbo – have already endorsed Brooklyn Borough President Eric Adams, who recently came out in opposition to ranked-choice voting after initially supporting it in 2019. The lead lawyer on the case is Frank Carone, who is counsel to the Brooklyn Democratic Party and has donated to Adams

The county parties stand to lose power under the new system, but Carone denied that the purpose of the lawsuit is to indefinitely delay implementation or to overturn the will of the voters. He said the complaint seeks to ensure the city is complying with the charter and and set concrete benchmarks for compliance determined by a judge. Council Member Adrienne Adams, who has not yet endorsed in the mayoral race, also told Gothamist she joined the lawsuit over education concerns, and that the lawsuit is not an attempt by party machines to maintain their power.

Although the complaint is asking for the city BOE and CFB to develop new plans, Carone said he thinks the city could still be ready for the June primaries if officials move quickly enough. “I don't think it's so difficult to educate and do the things in our wherefore clause in our lawsuit in three, four months,” Carone told City & State. “I believe it can be done, otherwise I would have not said so.” However, he added that he doesn’t think the June primaries represent “a material threshold point,” and said that if the city still isn’t ready by June, it shouldn’t be forced.

The new lawsuit could cause confusion among voters and candidates alike. “I think it's a little late to be filing this lawsuit, and that we don't need additional confusion about how we run our election,” election lawyer Sarah Steiner said. While she said that some benchmarks for rollout have not been met yet, they still could be met in time to implement ranked-choice at a small-scale in February that will provide insight for June. “Then we've complied with the current law, and we have a larger base of knowledge about how this rank choice voting is going to work,” she said. At a forum for Brooklyn borough president candidates Wednesday evening, Council Member Antonio Reynoso said the lawsuit could ultimately disenfranchise people by “insert(ing) doubt in this process.”

Asked why the complaint wasn’t filed a month ago, when New York City Mayor Bill de Blasio called the Feb. 2 special election, Carone said those involved in the case wanted to give the city BOE a chance to proactively delay or acknowledge a lack of preparedness. He did not explain how the city agency or the City Council could have legally disregarded a mandate in the City Charter determined by voters, but insinuated it would not have been difficult. “If the charter said, go ahead and jump off the cliff will you do it?” Carone asked. He said Monday’s hearing, when the board said they were ready for ranked-choice voting, provided additional evidence and was a signal to file.

The confusion sparked by this lawsuit could extend far past just the February special elections. If a judge grants the permanent injunction, a state of limbo may emerge where the city educates voters about a system that’s not guaranteed to be in place. This also affects candidates, who won’t know what system will ultimately be in place while campaigning. “If these plaintiffs had a problem with ranked-choice voting, they should have brought their lawsuit when it was passed a year ago,” election lawyer Jerry Goldfeder said.

Some of the merits of the lawsuit’s claims have also been called into question. The complaint said that the city Board of Elections has failed to get the necessary approval for new software that can tabulate ranked-choice results. While technically true, state Democratic Election Commissioner Douglas Kellner took issue with some parts of the complaint as they relate to the state board, calling parts of it false with others taken out of context. One line of the lawsuit read that the city “submitted its request for re-examination to the State and failed to receive reapproval.” Kellner told City & State that’s untrue, as the city hasn’t submitted any software for approval. He said that the state commissioners haven’t even decided whether or not they need to approve the software. A proposal on how the board might examine software that would perform ranked-choice tabulations has also never been approved by commissioners.

At Monday’s City Council hearing, city BOE Executive Director Michael Ryan said the city board is still awaiting guidance from the state about whether the software needs approval. And staff for the state BOE at a December 3 commissioners meeting expressed uncertainty about what their role is in this situation, and to what standards testing should be upheld. Staff also said they were awaiting “formal feedback” from the city, something the lawsuit notes. Ryan added on Monday that while he expects to finalize a contract with a new vendor to provide tabulation software, he has a backup utility ready from the vendor that provides the city voting machines. The state board, which referenced the backup utility in its draft review plan, has not made it clear what action it can or will take regarding it. A spokesperson for the state board said it’s unclear whether the city is making a change to a voting system, which may need review and approval, or just making use of additional software to aggregate numbers differently, which may not require approval.

Kellner also asserted that even in a worst-case scenario in which the state board fails to certify new software in time would not mean the city board would be unable to conduct the upcoming February election. He said since the existing voting machines can handle ranked-choice ballots, counting can still happen by hand. “It's doable,” Kellner told City & State. “It's just not the most efficient means of doing it.” Minneapolis did the same thing in its first ranked-choice election in 2009 when the state did not certify the necessary software in time.

Carone brushed off Kellner’s concerns and claims of inaccuracies in the complaint. “Whatever is inaccurate, he's free to put in an answer or free to put in an affidavit,” Carone said. “He’s free to have his own opinion, I really don’t care what he says.”

Correction: A quote from Frank Carone originally contained a transcription error. 

Rebecca C. Lewis
is a staff reporter at City & State.
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