New York State Assembly Standing Committee On Election Law Public Hearings On Improving New York’s Election Process Testimony of the New York Civil Liberties Union by Marina Sheriff, Legislative Director and Arthur Eisenberg, Legal Director
Thank you, members of the committee, for holding these hearings and for giving us the opportunity to address you.
We would like to begin with the following simple proposition: We want everyone to have the opportunity to vote. The power of the people to choose their representatives is perhaps the most fundamental principle of our democracy. For that choice to be meaningful, every voter must have the right, easily exercised, to cast a vote. For that choice to be meaningful, the ballot must contain as inclusive a list of candidates as possible. This committee has heard, and will hear, proposals for election reforms in a wide range of areas including registration requirements, accessibility of polls, form of ballots and voting equipment, ballot access and worker training, to name a few. As you consider these proposals, we urge you to be guided by the basic principle that it is the task of this committee, your fellow legislators, the State and County Boards of Elections and every election worker in the state, to assist every eligible citizen to cast a vote, and to present that citizen with as wide a choice of candidates as possible.
The NYCLU has concerns about a number of different aspects of election reform, and we would be glad to offer assistance on any questions you may have. The Attorney General of the State has issued a report with analysis and recommendations for a wide range of reforms. We support many of the specific recommendations of the Attorney General, but would like to raise here some points that report does not address.
According to a 1998 report by Human Rights Watch and the Sentencing Project, over 6% of African-American men in the State of New York are excluded from the right to vote. This significant disenfranchisement is the result of so-called felon disenfranchisement laws that exclude from the right to vote in New York State those who are serving sentences or on parole.
Felon disenfranchisement laws are a relic of a medieval European tradition by which “infamous” offenders suffered “civil death.” This civil death included the deprivation of all rights, including confiscation of property, and allowed the offender to be killed by anyone without penalty. This vengeful concept of scapegoating and outlawry has no place in a modern democracy.
Felon disenfranchisement laws by definition target those that are to some degree already disenfranchised from society, whether because they have broken with societal norms, or been targeted by a penal law that does not always operate fairly. Disenfranchising prisoners from the fundamental right to vote sends a clear message that they are outcasts from society, excluded from both the rights and responsibilities of participating in a democracy. Worse, these laws actually silence their voices, excluding them from participation in the selection of those who will represent them in government.
It is impossible, and would be irresponsible, to ignore the fact that these laws serve to disenfranchise a disproportionate number of black and Hispanic citizens. Historically, these laws have on occasion been used with the deliberate intent of disenfranchising black voters. Around the turn of the century, many southern states tailored criminal disenfranchisement laws to target those crimes believed to be committed most frequently by blacks.
There can be no dispute that these laws currently have a disproportionate impact on black and Latino citizens. The report to which we referred earlier indicates that nearly half of those excluded from voting in New York are black men. Considered in terms of the percentage of the adult population in New York, the report shows that less than 1% of the New York adult population overall is disenfranchised, but over 6% of black men in New York. One reason for this disparity was suggested in a lawsuit filed in 1993 challenging the law as violating the Federal Voting Rights Act. The plaintiffs cited a 1991 study by the New York State Judicial Commission on Minorities, reporting that there was evidence of race-based disparity in the State Courts’ conviction rate and sentence type. Specifically, the lawsuit noted that the New York law disenfranchises those serving prison sentences or on parole, but not those serving suspended sentences or sentences of probation, and that black and Hispanic felons are less likely than white felons to be sentenced to probation or to have their sentences suspended. The disproportionate impact of these disenfranchisement laws may stem also from unequal treatment at all levels of the criminal justice system. Recent debate about the Rockefeller Drug laws have brought to the forefront the extent to which those laws are enforced disproportionately against minorities. Specifically, while studies show that blacks constitute only about 13% of drug users, they represent, nationwide, 38% of those arrested, 59% of those convicted, and 74% of those incarcerated for drug offenses. In New York state, 94% of those incarcerated for drug offenses are black or Hispanic. As black and Hispanic citizens are disproportionately the subject of the harsh provisions of the Rockefeller drug laws, so are they disproportionately excluded from the fundamental right to vote.
As our criminal justice system moves, dismayingly, towards increasingly harsh penalties, mandatory minimums and restrictions on judicial discretion, these disenfranchisement laws will serve to exclude more citizens from the right to vote. Medieval notions of outlawry have no place in our democracy. Fundamental principles of fairness and respect for the right to representation on which this country was founded demand that we reconsider, and revise, the felon disenfranchisement laws.
We ask this committee to introduce a simple codification clarifying existing law to prevent the disenfranchisement of college students seeking to register based on their dormitory residences.
Section 5-104 of New York’s Election Law provides that “for the purpose of registering and voting no person shall be deemed to have gained or lost a residence by reason of his presence or absence...while a student of any institution of learning....” The term “residence” is defined as “that place where a person maintains a fixed, permanent and principal home and to which he, wherever temporarily located, always intends to return.” Election officials have used these provisions to deny registration to college students based on their dormitory residences. This denial is unconstitutional.
A 1972 Federal court decision held that the only constitutionally permissible residency test would be one that focused on an individual’s present intention to make a place his or her home, and that students could not be held to a different standard from other would-be voters. Consequently, college students may legally register to vote based on their dormitory residence if they meet that test.
Unfortunately, the legislature has never acted to amend the language of the existing law to reflect clearly the proper standard. As a result, we continue to receive reports that college students encounter difficulty registering because election workers read only the statute, not the case law, and apply an incorrect standard. Until the legislature amends the statute to codify the court holdings, hostile or misguided election workers will use the language of the statute to deny registration to college students. It is incumbent on the legislature to amend the statute to ensure the protection of students’ constitutional right to vote. We would be happy to provide assistance in recommending language that would comply with the decision of the court.
Recommendations of the Attorney General
As we mentioned earlier, the report of the Attorney General includes a number of excellent suggestions. In particular, we support walk-in registration, increased training for election workers, preparation and distribution of a voter bill of rights, and the removal of technical barriers to ballot access. A significant increase in state resources may be required to implement the kind of comprehensive reform contemplated by the report of the Attorney General, but we urge you to make that commitment.
We would also like to highlight the section of the Attorney General’s report describing allegations of race and national origin discrimination in voting, including allegations of harassment and intimidation, as well as insufficient deployment of functioning voting machines to minority neighborhoods. While such discrimination is already illegal, the state must take strong and immediate measures to implement safeguards to prevent these practices.
Reviewing the structure of the Board of Elections.
We also urge you to address the structural defects of our existing electoral system. Specifically, we believe that the present bi-partisan structure of the Board of elections needs to be re-examined with an eye to moving towards a non-partisan system.
As presently constituted, the State and County Boards of Elections are appointed at the recommendation of the two major political parties. Although this system was intended to provide a balance of power, in practice it likely leads to the marginalization of additional parties and to a system driven by patronage rather than merit. As we saw during the recent controversy in Florida, a system controlled by the Democratic and Republican parties also may not sustain the confidence of voters in a disputed election. The nation watched a parade of election officials on television, identified by their affiliation as Democrats and Republicans, and inevitably questioned whether such a system could be fair and impartial.
We urge the legislature to study alternatives to the existing system and to consider inclusion of other parties, or a move to a Board of independent, non-partisan civil servants. In order to implement meaningful reform, you must replace a system dedicated to maintaining a balance of power between two parties with one dedicated to empowering the voters of this state.