The seeming victory of 31-year-old public defender Tiffany Cabán in the Queens district attorney Democratic primary in June took another surprising turn when a tally of additional ballots put Queens Borough President Melinda Katz in the lead by just over a dozen votes. In the aftermath, attorneys representing each candidate are battling it out over the validity of affidavit votes cast in the election. The whiplash-inducing race has triggered a manual recount beginning this week. But with outcome coming down to just a small number of votes, activists and elected officials alike are raising questions – and conspiracy theories – that get at the fundamental fairness of New York’s elections.
For some expert insight, we reached out to New York election lawyer Sarah Steiner; Alex Camarda, senior policy advisor at Reinvent Albany; Sarah Goff, associate director of Common Cause New York; and Chris Coffey, who leads the New York practice for Tusk Ventures and for Tusk Strategies (and who has donated to both Katz and Cabán, but is working for neither).
Should New Yorkers trust the results of local elections?
Sarah Steiner: Absolutely yes. The Board of Elections counts are the result of careful examination of ballots, and are checked repeatedly with Democratic and Republican workers watching each other, and supervised by bipartisan teams. The ballots in a hand recount are counted at least three times, and all counts are open to the public; if you go and watch, you’ll see what I mean.
Chris Coffey: Yes, they should. We can and should do better to get more people to vote through early voting, same-day registration and even mobile voting. But the elections themselves are fair, even if they are antiquated and election days often botched by the Board of Elections. And far too little participation for the greatest city in the world.
Alex Camarda: New Yorkers should feel confident in the results of local elections. There is no evidence that any local election has been rigged in recent memory, including the Queens district attorney's race, which would involve committing felony crimes. The only thing unusual about the Queens DA race is that it is a very high-profile race where the lead has changed as a result of counting paper ballots. Otherwise, the Board is following the processes in state law that it typically follows. New Yorkers just need to let the process play out, which requires time and some patience. Unfortunately, some reckless and uninformed comments have been made on social media, which undermines public confidence in the process. Both campaigns should be responsible, and rather than trying to position themselves as the presumptive winners, encourage New Yorkers to let the process unfold to determine the winner.
Sarah Goff: Yes, but we need to make it easier for all eligible New Yorkers to vote.
In the aftermath of the Queens DA election controversy, should changes be made to election law or the Board of Elections?
Alex Camarda: This past legislative session resulted in sweeping changes to election law, including the establishment of early voting, online voter registration, portable voter registration, consolidation of the federal and state primaries in June, and changes to upstate polling hours. The Legislature also took the first steps to change the Constitution to put in place no-excuse absentee voting and same-day registration. Many of these reforms will not go into effect immediately but will be phased in over years. A bill the Legislature passed but has not yet been signed by the governor regarding accepting affidavit ballots will directly address some of the issues in the DA's race. Collectively the reforms should modernize the election experience and make it easier for New Yorkers to register and vote. More changes can be made, including to the bipartisan structure of the Board, which has created the perception that it is inherently opposed to an outsider candidate like Caban. Most states have an appointed or elected secretary of state that administers elections but that system has also been criticized for being politicized as well.
Sarah Goff: Currently, the Board of Elections is staffed by political appointees who work for party bosses. We should have nonpartisan, professional staff.
Sarah Steiner: The controversies surrounding the Queens DA election underscore the need for more reforms, even with the many reforms passed this year. The election law is a hodgepodge of old, very old, and new laws. Still on the books are provisions that have been struck down by the courts, and that’s confusing to candidates, and even sometimes to lawyers and judges.
The law is mired in paper in a digital era, though we should never give up paper ballots that can’t be easily tampered with and can be recounted without questions about interference or authenticity. We need to review the entire election law, but that is a massive undertaking. The New York City Bar Association has advocated for several years now for what it calls a “cleanup bill,” which identifies the provisions found unconstitutional and removes them from the statute. The Board needs better funding for their mission, more and better training for its poll workers, and split shifts for them so they aren’t working 16-18 hours on election day. Tired people make more mistakes. Their website could be more user-friendly; it really has so much information on it but a person really has to work to find it.
Chris Coffey: Well, the Board of Elections needs to be reformed. But I’m not sure that has any bearing on this case. If a two-paged ballot can cripple New York City’s voting, or rain, or long lines, we need help. They had months to plan for the general election in 2018 and it was a mess. It makes me anxious about 2020 and 2021. The idea that political parties get a say on who is appointed seems antiquated. And what about independents, non-affiliated, Working Families (Party), Democratic Socialists, etc? That being said, nothing I’ve seen in the recount process in Queens has been their fault. Recounts are messy. The state has closed primaries. Should the BOE allow non-Dems to be counted in the recount? Of course not.
To what extent will electoral reforms made at the state level this year introduce more transparency or restore trust in our elections?
Chris Coffey: Yes, they will help. We have more to do. Ten days of early voting is helpful. But there aren’t enough sites and it should be made easier. Voting on Tuesday has always been strange. (It’s) a disadvantage to people who are working two shifts or with small kids. But I don’t want to minimize that Albany has achieved some big things here that should help with participating. Mobile voting would be even better. If we can bank on our phones or submit taxes, why not secure voting?
Sarah Goff: Early voting and pre-registration of 16- and 17-year-olds alone will have a dramatic effect, allowing more New Yorkers to vote and expanding participation.
Sarah Steiner: What will most restore trust would be more people coming out to vote, on everything from county committee to president. But of course that is something of a paradox. I think that the fact that things working the way they should doesn’t make news, while even unsubstantiated concerns sometimes do, doesn’t help the situation.
More voters should be brought out by early voting, which starts small this November, and by no excuse absentee voting, which requires an amendment to the state Constitution. It passed both the Assembly and the Senate this year, and if it does again next session, it will go before the voters.
The electronic pollbooks which are being purchased by the Board of Elections now will also help, because the number of paper affidavit ballots will be reduced, and the voters may eventually have more flexibility in where they can vote.
Finally, the new law permitting affidavit ballots to be accepted if they are filled out in a “substantially compliant” manner – instead of the current law’s very silly demand for perfection – that I expect eventually to be signed by the governor will also result in more votes being counted.
Alex Camarda: Most of the reforms make it easier for voters to register and vote. That may make New Yorkers feel the Board of Elections is seeking the participation of New Yorkers in our democracy, and generate trust. But the reforms have to be administered effectively, which will be challenging for the state and local boards given the number of reforms and a track record of election administration problems, particularly for presidential elections. Regarding transparency, the city Board has public meetings every Tuesday and its decisions are generally more public than a city agency as a result. To generate more confidence in the paper ballot tally and manual recount processes, the Board should issue a public document explaining these procedures, in addition to its standards for counting paper ballots based on law, policy and court decisions.
NEXT STORY: Poll: Should New Yorkers trust local elections?