The Battle of New York is over. Democracy has lost, and the clear winner is the oligarchy of establishment politics. Through a combination of legalized voter suppression, incompetence, and alleged malfeasance, the cabal of New York Democrats delivered a victory for their former Senator, Hillary Clinton, and they delivered big – a 16-point triumph.
On April 18, the day before the New York primary, the Clinton campaign was one loss away from full panic mode. Over the previous 30 days, the Sanders campaign, which was supposed to be an afterthought by this time, had won 9 of the last 10 contests and was pouring tremendous resources into beating the Clinton campaign on their home turf. A win in NY was long expected for Clinton, but if Sanders could keep it close, it would be widely seen as her defeat.
On that same day, Election Justice, a newly formed national voting rights organization, walked into Federal Court and filed suit against the State. Their primary complaint was massive evidence for an illegal purge of voters from the Democratic rolls. In Brooklyn alone, 120,000 voters had their registrations either deleted or changed. The Court delayed the hearing until the afternoon on the day of the primary, when any immediate response would be too late.
Unlike other cases that have arisen during this primary election, however, this case was not dismissed. Election Justice presented clear evidence that tens of thousands of voters were wrongfully disenfranchised. First-time voters, who registered before the March 25th deadline, were mysteriously absent from the rolls. Long time Democrats found that their status had been changed to independent. This led to over 120,000 voters having to submit affidavit ballots, only 25% of which were deemed valid.
To be fair, some of errors were due to mistakes by the voters. New York is a closed primary and has an unusually early deadline for voters who wish to change their status – six months prior to the election, on October 9th. However, the court could not dismiss the case because Election Justice showed ample evidence that many voters had followed proper procedure, and yet were still purged from the Democratic rolls. Thus the case precedes on the constitutional grounds that purged voters may have suffered irreparable harm due to a violation of their rights.
While the results of the New York primary will stand, this is one battle, and the larger war for democracy still carries on. Election Justice has filed a similar lawsuit in California, and their attorneys in New York, Jonathan Clarke and Blaire Fellows, continue to fight to hold the State accountable for their failures, and to force reform on an electoral system designed to suppress voter turnout.
In addition to New York having closed primaries and a prohibitive deadline for voters to change status, they further suppress turnout by segregating their elections. This year New York will hold 4 separate elections: a presidential primary, a congressional primary, a state and local primary, and a general election. Complicating matters even more, voting machines malfunctioned and many polling locations were not opened until hours after their scheduled time. Given all this it’s no wonder that voter turnout in New York has been steadily falling for the last 40 years, and consistently boasts one of the worst voter turnouts of any state. This year was no different. Less than 20% of all eligible voters cast a valid ballot in April’s primary.
To better understand what happened and what comes next in the Battle of New York, The Bern Report (TBR) spoke with Election Justice’s NY attorney, Jonathan Clarke. Highlights from the first installment of the 2-part interview include: Explaining why Election Justice was not able to stop New York from certifying the election results, how Hurricane Sandy played a part in the purge, and why voters who cast affidavit ballots are likely to be disenfranchised in upcoming elections.
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Interview with Jonathan Clarke of Election Justice – Part I
TBR: When Election Justice first filed in Federal court, what were you seeking?
We were seeking a few different things. For one, we wanted an open primary. This was symbolic in a sense saying; okay, you can’t resolve any of these problems in time, just let everybody vote. That was the day before the election when we filed and we expected a judge to hear it that day. That didn’t happen. The judge decided to hear it on Election Day, and by that point it was too late. So we had to withdraw that as a claim, because a judge is not going to, half way through the day, say okay, now it’s an open primary. That was impossible.
One of the other things we wanted was for our plaintiffs to be able to vote regularly, instead of with affidavit ballots. That can happen, the judge can issue an order for that. We definitely didn’t get that. So all the immediate relief we [asked for] the judge denied. However, the judge said that all the constitutional claims have merit–Issues like the polling places not opening on time, and the purge disproportionately affecting minorities. So all these constitutional claims still exist. We can and will still litigate those, which is where we are now.
TBR: Now what about the “restraining order” to stop the certification of the election. That was something that Election Justice had planned on filing, but you did not. Why?
We did, but we withdrew it.
TBR: Why was that?
When the certification was coming, we had to take a hard look at the laws and ask ourselves if we could bring another Order to Show Cause. Our first order to show cause was denied, so if you try to file a second one, then something miraculous has to happen after the first filing for you to bring another. The one thing that it seemed we could argue was that the BoE wasn’t doing anything in response to the purge, and Michael Ryan of the New York Board of Elections (BoE) wasn’t returning my calls. So we filed [the second Order to Show Cause]. After that then Ryan finally called me back and said that we’re doing everything that you’re asking in regards to analyzing the affidavit ballots. That deflated the case.
There was no way we could go in front of the federal judge and say they’re not complying, when they were saying they were. The judge would have said, ‘The BoE is complying, the attorney general is overseeing, and the comptroller is overseeing. It looks like you’re just trying to get media attention.’ Election Justice would have lost credibility for the rest of the lawsuit by bringing what appeared to be a frivolous claim. If you do that then that’s it. You’re branded.
TBR: What were the demands that the BoE said they were complying with?
We were asking for a deeper analysis into how they were going to decide which affidavit ballots were accepted or rejected. As a bit of background, if you miss two federal elections in New York, you get put on a list where they send you a letter and, if you don’t respond to the letter, you are taken off the active voter roll and put into inactive status. The reasoning behind this is to keep the roll up to date and from becoming too large. For example, if they didn’t do these purges and someone passes away, then they’d stay on the voter roll forever.
TBR: Does that mean two general elections?
No, two federal elections, which is a bit ambiguous because Congress comes up every two years, so if you hadn’t voted in 6 years then your status would be changed to inactive. Then they send you a letter and, if you don’t respond, then you’re taken off the voter roll entirely. People move a lot in New York City and the boroughs, so a lot of people never know that they’ve been taken off the active list. However, going through some of the individual cases of our plaintiffs, we found that some people who never moved still didn’t receive these letters because they either were sent to the wrong address or they were sent out without an apartment number. In this latter case, the BoE had their correct address, but they just sent it to the building. Obviously, if there are only a few units in your building, then this isn’t a problem. If you have a lot of units, like a lot of apartments do in New York, then the chances that you never saw this letter are pretty high.
TBR: Why would they leave off the apartment number?
I don’t have an answer for that.
TBR: So what happens if that person doesn’t know they’ve been moved off the active list and tries to vote?
The active voter roll is divided up by location and that’s what gets sent out to the polling locations. So, if they try to vote they won’t be on the list and they’ll then have to fill out an affidavit ballot. What happens in a normal situation is when they start to count the vote they take all the affidavit ballots and then look at the entire active list to see if the person is there. If they’re not, then they’ll look to the second level, which is the inactive list. By New York State law they only have to go to that second level. What we were asking for in the lawsuit was that they go through the entire voting history to make sure that this person wasn’t mistakenly purged. The BoE has access to all those voter changes and by law they don’t have to look at all those different steps. They only have to look to the last one. So we were asking that if there was a reasonable belief that they were a democrat and they just made a mistake in the bureaucratic process, that they be defined as democrats and their ballots be counted.
TBR: So that is what Ryan and the BoE agreed to?
Yes, in principle. We were told that more votes were counted because of the lawsuit because they did the deeper analysis, but he didn’t tell me how many. When I read that 90,000 were rejected only 30,000 accepted though, I had my doubts.
TBR: Is that an unusually high percentage?
The general rejection rate in prior election is something like 20-30%, but in this election that number seems to have been reversed, and with a five-fold increase in affidavit ballots. Less than 30% were accepted. Hindsight is 20/20, but had I known that number when we did bring the Order to Show Cause, I might have thought twice about pulling it. To me that number strongly suggests that while they said they were doing this deeper analysis, they didn’t follow through.
TBR: Does Michael Ryan have control over the BoE for the whole state or just the Manhattan?
He’s has the five boroughs. Each borough has their own BoE, but they all report to Ryan. That’s another issue. He says that he’s doing the deeper analysis, but all over the state of NY they’re not. The city is doing it because they screwed up the most dramatically so they’re trying to fix it.
TBR: Why do you think that over 120,000 people were people were purged from Brooklyn alone?
There are a lot of potential reasons and I don’t want to speculate too much. I can tell you that a significant number had to do with Hurricane Sandy.
TBR: How is that the case?
In 2012, after Sandy, because so many people were displaced, Cuomo said that people could vote wherever they wanted. For example, if someone was living in Brooklyn, which was hit really hard, but they were staying with family upstate during the 2012 election, they could vote by affidavit ballot in that location without having to re-register. What he didn’t say was that doing that would erase your status in the system. But nobody really knew about that. So a lot of people who voted by affidavit in 2012, thought that they were still registered democrats. They’ve always been registered democrats, and they voted democrat in 2012, why wouldn’t they be? Well, that wasn’t the case. Their party status was erased and they needed to re-register. So a lot of people that were victims of Sandy weren’t able to vote. We were not able to find out how many people that applies to.
TBR: So wait, just to be clear, those people who were displaced by Sandy, who voted by affidavit ballot, their registration was changed to the location that they voted in last, or it was simply purged from the system?
It was purged from the Democratic rolls later, because it negated their party status. They were still listed as registered voters but their party status was blank. And since NY is a closed primary, when they we’re preparing to update the rolls, they purged those voters because they didn’t appear as Democrats. They would have had to have known this, and re-registered six months before the primary, back in October.
TBR: This sounds insane. Why would they have the system set up like this?
That’s a good question, and one that I’d like to find out as well. This is something that most people just don’t know. Anytime you vote affidavit you lose your party registration.
TBR: Does that apply to this last primary and the 120,000 people who voted by affidavit?
Yes, it appears so. Anyone who voted affidavit this last election, they’re probably going to have problems now too because they’re all effectively re-registered as no party status. I’ve tried to get a clarification from Ryan on that, but he hasn’t gotten back to me. Personally, I would assume that if it happened with Sandy that it is going to happen with these people also.
TBR: Okay, so how do people who voted by affidavit know that their vote was counted?
If it was rejected, then you’re going to get a notice from the BoE, saying that your ballot has been rejected. However, there’s 90,000 of them. I don’t think those things went out very quickly.
TBR: Wait, wasn’t that part of the problem in the first place, that they sent some of the original inactive voter notices to the wrong address or without the apartment numbers listed?
Exactly. Instead of waiting for that letter to arrive, I’d recommend that if someone voted with an affidavit ballot that they call or go down to their local BoE and ask them if their ballot was accepted or rejected. If it was rejected, ask them for documentation as to why it was rejected. Michael Ryan has said that he will have all that information available, and can get it to the voter within a day. I think that as a matter of principle everyone who voted by affidavit should go and find out if their vote was counted.
TBR: And what if the voter finds out that their ballot was rejected?
If it was rejected, there is a mechanism where you can challenge the rejection, but it requires that you bring people into court individually. I just don’t know how we’re going to do this. Even if we had the resources to handle this kind of volume, which we don’t, there is no way the courts could logistically deal with these kinds of numbers. It just isn’t possible. We bring some of them in, which we’ve been doing, but it’s only going to be a small fraction. Given that, perhaps the best thing they can do is go to www.electionjustice.org and fill out our form online, so that we can potentially add them to the ongoing federal case.
TBR: So the majority of these votes are never going to be counted?
Unfortunately, I think that is the situation, but honestly I don’t know. We’re sort of in new territory here. We’ve gone through case after case looking for something like this, but so far we haven’t found anything. There have been major purges before, but no one has ever caught it before the election like we did.
TBR: Okay, moving forward then, what’s the main goal of the ongoing lawsuit?
We want to use this suit to bring the long-term change. This is the one we filed in federal court where the judge said we had merits on constitutional grounds. We think the BoE has a lot to answer for, and we want those answers.
Why did they send out a notice to new voters saying that the primary is in September? Why were there so many people who registered between the 20th and 25th, when the biggest push was being made to register new voters, not on the actual voter roll? Why, when they sent out notices to people who were potentially going to be purged, did they send them to the wrong address or neglect to put the apartment number? Why were entire buildings or city blocks purged from the voter rolls? Why didn’t they open some polls until 12:00 pm when they were supposed to open hours before that? What are they going to do to fix the fact that if you’re not on a voter roll and you’re told you can see a judge to change that, but it takes 4-5 hours to actually see that judge? How is that acceptable? Why did they purge so many voters from the rolls so close to the election, when it’s against both federal and state law to do this? There are some of our plaintiffs who, hearing what had happened in Arizona, took screen shots of their registration. April 1st they’re on, April 6th they’re off. These are all the long-term things that the lawsuit is bringing up. Obviously, this is going to take some time in court.
TBR: So is this potentially a class action lawsuit against NY State for violating civil rights?
Yes, absolutely. That’s what it amounts to. It’s not going to affect this past election, but we are going to bring attention to and accountability to this. People are going to get fired over this that should be fired, and they’ll have to reform their procedures.
Disclaimer: The writer of this article, Joseph Bisoglio, is affiliated with Election Justice assisting the organization with fundraising and public relations.