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BRENNANCENTERFOR JUSTICE

Testimony of Laura A. SeagoBrennan Center for Justice at NYU School of Law

Before the New York City CouncilCommittee on Governmental OperationsRegarding Board of Elections Oversight

February 9, 2010

On behalf of the Brennan Center for Justice at the New York University School of Law, Iwould like to thank the Committee on Governmental Operations for holding this hearing.The Brennan Center for Justice is a nonpartisan public policy and law institute thatfocuses on issues of democracy and justice. Among other things, we work to ensure fairand accurate voting and voter registration systems and to promote policies that maximizeparticipation in elections. The Brennan Center does extensive work on the voterregistration, the maintenance of voter registration lists, and the integrity of votingsystems, including conducting studies and publishing reports, providing assistance tofederal and state administrative and legislative bodies with responsibility over elections,and, when necessary, litigating to compel states to comply with their obligations underfederal law and the Constitution.I would like to use this opportunity to discuss two issues relevant to the GovernmentalOperations Committees election oversight responsibilities. We believe that both of theseissues, if unaddressed, may lead to the disenfranchisement of voters in New York City.The first relates to the new voting systems to be used at polling places across the statethis year, which, unless mitigating steps are taken, may cause the disenfranchisement ofthousands of voters, particularly in minority communities. The second relates to the CityBoard of Elections voter registration and list maintenance practices, which have alreadycaused the unwarranted disenfranchisement of New York City voters, most likely inviolation of state and federal l aw .I. The City Board of Elections Should Take Corrective Action to PreventUnnecessary Disenfranchisement Caused by New Voting MachinesNew York New Voting Systems Treatment ofOvervotes Has the Potential toDisenfranchise Voters

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estimated rate of 0.6% for votes cast by non-blacks. Similarly, a study of overvote ratesin the 2000 Florida election shows a statistically-significant positive correlation betweenthe Hispanic population of an a re a and the overvote rate in the Presidential race.

The City Board ofElections ShouldDemand Reconfiguration ofMachines in itsJurisdictionTo prevent unintended overvoting, the Board of Elections should demand that themanufacturers of the optical scanners in use in New York City immediately reconfiguretheir machines to reject overvoted ballots as most other optical scan systemsautomatically do. Wisconsin did this with ES&S when it purchased the companys DS200 scanners, thereby requiring voters to review overvoted ballots and decreasing thelikelihood ofmistakes. Ou r understanding is that this simple step could save tens ofthousands of votes in major elections.The Brennan Center joined with virtually every voting rights and good government groupin the city to submit a letter to the State Board of Elections urging the same remedy. Sofar, the State Board has taken no formal action in response.

II. The Committee on Governmental Operations Should Conduct OversightHearings to Ensure the New York City Board of Elections Compliance with Stateand Federal Law Pertaining to the Maintenance of its Voter Registration DatabaseOver the past several years, the NewYork City Board of Elections has taken severalactions that may violate state and federal law and result in the unnecessarydisenfranchisement of voters.New York City Altered the Registration Status of34, 000 Voters within 90 Days of anElection in 2008 in Likely Violation of the LawAt a hearing before this Committee in September of 2008, officials of the New York CityBoard of Elections testified on the record that the Board sent 38,000 Notice of Intent toCancel letters to registered voters suspected of being registered in other counties, statingthat if voters did not respond in 14 days, theywould be removed from the rolls. The

See Alan J. Lichtman, Report on the Racial Impact of the Rejection ofBallots Cast in the 2000Presidential Election in the State of Florida (2001), available athttp://www.usccr.gov/pubs/vote2000/report/appendix/lichtman!ltrpt.htm.5ee M. C. Herron and J.S. Sekhon, Overvoting and representation: an examination of overvotedpresidential ballots in Broward and Miami-Dade Counties, in Electoral Studies 22:1(2003).6 Oral testimony of Steve Ferguson, Director ofManagement Information Systems, New York City BoardofElections, Before the New York City Council Governmental Operations Committee, Sept. 26, 2008,available at http://legistar.council.nyc.gov/View.ashx?M=F&ID=676632&GUID=F29BB2E4-C3 86-4ACO-B4E9-6 1 0A6B36A675 [hereinafter Steve Ferguson testimony].

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letter to the State Board of Elections, the City Board of Elections acknowledged thisproblem. In 2008, many new registrants who were placed on a suspension list becauseof incomplete voter registration applications did not receive notice of suspension in timeto correct their applications, and showed up at the polls only to be told that they were notregistered.Increased Oversight Is NecessaryThere is little doubt that eligible citizens have been disenfranchised due to voterregistration problems. Th e preceding suggests potential violations of state and feder al lawon the part of the New York City Board of Elections that warrant careful study by yourcommittee. The Brennan Center urges the Committee on Governmental Operations toconduct oversight hearings on the Board of Elections compliance with all applicablelaws.The Brennan Center is happy to assist the Committee on Governmental Operations infulfilling its oversight responsibilities in anyway we can.

13 Testimony of The League ofWomen Voters before the New York State Senate Elections Committee,April 24, 2009, available at http://www.lwvny.org/advocacy/issues/Test_NYS_SenElectConimO424O9.pdf.14 Election Protection, supra note 13, at 25.

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