How to reform the Board of Elections
How to reform the Board of Elections
With the close of an election cycle like no other, a perennial call to reform boards of elections across the state seems to be finally gaining steam. After a series of error-filled elections that in recent years have featured long lines at polling places and voters sent the wrong absentee ballot envelopes, both Gov. Andrew Cuomo and New York City Mayor Bill de Blasio have publicly gotten behind the idea of revisiting at least the New York City Board of Elections. Although a complete overhaul of how the city or the state runs elections would require amending the state constitution, lawmakers have the power to make some changes through legislation alone.
New York’s elections are run by local boards of elections, with one board per county outside of New York City, which has a single board for all five boroughs. At the top is the state Board of Elections, which is tasked with creating election regulations that local boards are meant to follow.
All the boards, whether local or state, are bipartisan, per the state Constitution. While the short section on election administration does not lay out exactly what election agencies must look like, it does stipulate that any board or officers that run elections “shall secure equal representation of the two political parties.”
The state board has two commissioners per party, while each county gets one commissioner per party. In New York City, each borough gets one commissioner per party, amounting to 10 total commissioners for a single board that oversees elections in all five boroughs. This structure dates back to the 19th century, with the thinking that the two major parties would keep each other honest while running elections. “I think there is definitely a role for political parties and for candidates to have in election administration,” said Susan Lerner, executive director of Common Cause New York. “But what has happened in the intervening time is that, rather than keeping each other honest, we have devolved into a system of gridlock.”
Commissioners can hire and fire employees as long as they have “equal representation.” So if the board hires a Democratic voting machine technician, it must also hire a Republican technician.
While bipartisanship is not unique to the New York elections system, Lawrence Norden, director of election reform at the Brennan Center for Justice, said New York’s practices make it different from basically anywhere else in the country. “It’s the parties, the political parties, that tend to nominate the commissioners at the local level,” Norden said. “And there’s a very strict adherence to having both Democrats and Republicans … perform certain duties.” Norden added that other states often have a secretary of state as the final arbiter of elections.
Even board employees, such as voting machine technicians, must be equally split by party. According to state law, local commissioners can hire and fire employees as long as they have “equal representation of the major political parties.” That means if the board hires a Democratic voting machine technician, it must also hire a Republican technician. And those hiring decisions are made by commissioners chosen by political parties without the restrictions of the civil service requirements needed for other public positions.
This creates the potential for staffing inefficiencies and hiring of political hacks, rather than the best possible employees. “New York is on the far end of completely politically controlled elections,” Lerner said. “A patronage-driven system is the right way to describe it.”
Reform advocates have long decried New York’s boards of elections, especially New York City’s, for hiring people based on political connections rather than qualifications, to the detriment of election administration. For years, the New York City board did not even publicly post job openings. A New York Times article from October chronicles some of the nepotism still present in the city Board of Elections, where employees reportedly smoked marijuana on election night and would watch Netflix on the job.
“Our system is set up so that the boards of elections have relatively little, if any, oversight, and virtually no accountability.” – Susan Lerner, executive director of Common Cause New York
With an equal number of commissioners from both parties, there isn’t a tiebreaker in the event of a deadlock, such as deciding whether to extend early voting hours due to long lines. This happened in Ulster and Rockland Counties, where court orders were needed to break the deadlock and expand hours when the Democratic commissioners supported extra voting hours while the Republican commissioners opposed them. And if a local board opts to flout state law or a regulation from the state board, there is rarely any consequence because of weak enforcement power from the state board, which itself is politicized. “Our system is set up so that the boards of elections have relatively little, if any oversight, and virtually no accountability,” Lerner said. “That’s just not good practice, for good government or good management.”
The addition of a tiebreaker could help solve this problem – Lerner used North Carolina as an example, which she called “one step removed” from how New York runs elections. In that state, the party of the governor generally gets an extra appointment to its Board of Elections for an odd number of commissioners to avoid a tie.
Such a change would require a constitutional amendment, but some reform advocates argue that accountability can still be achieved through changes to state law.
Unlike changing the composition of the boards themselves, reforming hiring practices would only require a state law making board employees nonpolitical civil servants. “We think that there are ways that you could create civil service protection and requirements for a large number of the employees of this agency that would give them insulation from the political parties to do as they’re told,” Blair Horner, executive director of the New York Public Interest Research Group, said.
Horner believes the state Legislature could also reduce the role that political parties play in the appointment of commissioners at the local level. The state Constitution includes no requirements about how commissioners are appointed or elected, as long as they are bipartisan, leaving that up to the Legislature. State law empowers local political parties to recommend commissioners, with the local legislative body – typically the county legislature and in New York City, the Council – approving those recommendations, generally acting as a “rubber stamp,” as Norden put it. But even without change to the bipartisan structure, state lawmakers could create more qualifications for who may be a commissioner to reduce the influence of party insiders, while still maintaining the bipartisan structure. “We believe there are people that have expertise that are registered in the Republican and Democratic parties who are not part of the political party machinery,” Horner said.
New York has what is called a bottom-up system, where local election officials have their own authority and maintain their own voter rolls rather than a single office maintaining the rolls for the entire state. Local boards have routinely failed at these responsibilities, including when the New York City Board of Elections improperly purged 200,000 Democratic voters in 2016 and when the Rensselaer County Board of Elections failed to place an early voting site in its most populous city, Troy.
"It’s convenient, also, to be able to say if you don’t want to do something, you can blame someone else.” – Blair Horner, New York Public Interest Research Group executive director
Replacing the current system with a top-down one would not necessarily require a constitutional amendment, according to Horner, but it would be an arduous process that would not guarantee better run elections on its own. While some may decry the state’s decentralized approach to election administration, Norden said it’s not inherently bad, because having a single elected person in charge like a secretary of state can lead to its own problems. He cited when then-Georgia Secretary of State Brian Kemp, a Republican, ran his own gubernatorial election in 2018, leading Democrats to complain that Kemp suppressed minority voters by purging over 100,000 voters from the rolls for not being active enough in 2017 and delaying tens of thousands of new voter registrations just weeks before the election.
But the decentralized nature combined with the strict bipartisan makeup of the boards has led to accountability issues. “The idea that there's not a person with whom the buck stops, who's in charge, squarely, with administering state elections, it's a little bizarre,” Jarret Berg, co-founder of the voting rights group VoteEarlyNY, said. “And it's led to a vacuum of leadership and decision-making and accountability. The concept of local discretion is enshrined in our election law – the local officials are the ones that built the program. But we cannot allow that to be held up as a shield that allows local officials to trample on people's voting rights.”
“The idea that there's not a person with whom the buck stops, who's in charge ... it's a little bizarre.” Jarret Berg, co-founder of VoteEarlyNY
Short of replacing the current system with something else, state lawmakers could create clearer rules for boards to follow to create a degree of standardization without changing to an entirely different structure.
Aside from going to court, voters currently have little recourse to challenge the action or inaction of local commissioners, in part because the state Board of Elections currently has little enforcement power over their local counterparts. “It’s convenient, also, to be able to say if you don’t want to do something, you can blame someone else,” Horner said. Berg added that someone like the state attorney general could perhaps be given ultimate authority in the case of deadlock or commissioners’ decisions violating state rules. “If a court needs to step in and save the day, that is not a well-oiled process,” Berg said. He argued a constitutional amendment would not be needed to empower the attorney general or some other sort of enforcement counsel, although other advocates were less certain.
Under state law, the governor has the power to remove a commissioner from both the state and local boards, but Cuomo has never exercised that power, nor have other governors in recent history. A law empowering the local legislators who approve commissioners to also remove them could create more accountability at the local level.
Politics have gotten in the way of reform in the past, according to Lerner. A Republican-controlled state Senate stood in the way of just about any voting and election reform, which in part was why New York long had some of the most regressive voting laws in the country. But when it comes to reforming the boards of elections, even establishment Democrats with deep ties to their party benefit from the current political control of elections and may not be quick to upend current practices. “If the counties come in and say, ‘This is too expensive, this is too onerous,’ and the politically appointed commissioners come in and say, ‘That's too much for us,’ then it's very, very hard to get the Legislature to adopt a reform,” Lerner said. But she added to greater voter engagement since 2016 has created greater political will to get reforms done.
State Sen. Zellnor Myrie, chair of the state Senate Elections Committee, was not available for an interview, but he has expressed support for election and voting reforms. He previously told City & State that state lawmakers should carefully consider any major structural reforms to boards of elections before taking action, and plans to hold hearings addressing how the 2020 elections were run.
The earliest voters could possibly vote on a constitutional amendment is 2023, if the state Legislature passes one this year and again in 2023. And while legislative changes could happen sooner, Lerner cautioned against rashly approving any changes to boards of elections. “Any one person dreaming up a solution is not the way in which this problem is going to be solved,” Lerner said. “It is going to have to be a serious, open discussion where we grapple with these challenges, and we come up with the best, modern consensus on how our elections should be run and who should be responsible.”