Spitzer Mulls Suit to Renovate Voting, Kill Paper Ballots

State Attorney General Eliot Spitzer says he is considering the possibility of a lawsuit to drag New York’s antiquated voting system into the 21st century. Mr. Spitzer told The Observer he preferred a legislative approach to achieve voting reform. But, he added, “I never rule out litigation when I think there’s a cause of action.”

Election reform could become a hot issue in the city this year, when the full effects of New York’s term-limits law are felt. Incumbents holding all three citywide offices and 39 of the City Council’s 51 seats are ineligible to run for re-election; a massive scramble is already underway to succeed the outgoing officeholders. Given New York’s recent (though widely overlooked) history of Election Day foul-ups, many political insiders fear a fiasco of Florida-like proportions next fall, with thousands of registered voters turned away because of incompetence or mechanical malfunctions. Speaking at a hearing on Dec. 15 sponsored by the city’s Voter Assistance Commission, Neal Rosenstein of the New York Public Interest Research Group said that “this year’s hotly contested municipal elections may be a disaster unless improvements are made to the election process. If this year’s primary or general elections for municipal office are anywhere near as close as this year’s political contest in Florida, major snafu could undermine and cloud the results.”

In remarks to reporters after the hearings, Mayor Rudolph Giuliani, who himself had to wait 45 minutes to vote in November, said he would appoint a panel to study New York City’s election apparatus. Reforms, swiftly enacted, could obviate the need for any legal action by Mr. Spitzer or anyone else. But the Mayor also suggested that “the old-fashioned system” in place in New York may work “better than anything new …. [The] voting system in Palm Beach and Broward [counties] is much more modern than ours–and right now, which would you prefer?”

But New York’s election apparatus, heavily reliant on machines that date back to the 1960’s and at the mercy of Election Day workers (most of them senior citizens who earn $130 for a 17-hour day), hasn’t been tested as severely as Florida’s. That may change in the fall, however, when many close races are decided in Democratic Party primaries–perhaps, in some low-turnout Council races, by a few hundred or even a few dozen votes. New York got a glimpse of Election Day horrors to come when the Board of Elections tried to figure out whether Roy Goodman or Liz Krueger had won the race for State Senate on the East Side. In that race, a Board of Elections official mistakenly sent out hundreds of absentee ballots for the wrong district, before realizing the mistake and sending out a second set. With only a few hundred votes separating Ms. Krueger and Mr. Goodman, the long-time incumbent, that error caused all kinds of headaches for the Board of Elections. (Mr. Goodman eventually was declared the winner.)

But the problem came to light only because the Goodman-Krueger race was so close. Elsewhere in the city, according to the testimony before the Voter Assistance Commission, there were numerous problems this year. In Brooklyn alone, Mr. Rosenstein said, 12,000 voters cast emergency ballots because their names weren’t on the registration rolls. That’s 22 times the number of votes that decided the Presidential election.

Though he disagreed with the Supreme Court decision that in effect made George W. Bush president, Mr. Spitzer said he thought the majority’s reliance on the equal-protection clause could give him an opening to force reform in New York. He already has proposed a package of reforms designed to update New York’s voting system, including such measures as statewide voter-registration lists (they are currently maintained county by county), Election Day registration and–perhaps most crucially– funding for updated voting machines. “In legislation, timing is everything,” Mr. Spitzer insisted when asked why he thought the reforms had a chance of passing this year, even though the New York Legislature routinely offers mule-like resistance to any attempt to reform election law and procedures. But if Mr. Spitzer discovers that timing means nothing to the Legislature, then he may resort to a lawsuit to force reform.

Particularly troublesome as the city prepares for a chaotic election season, say reformers, is New York’s unreliable voting machines and its use of paper ballots when machines break down–a frequent occurrence. “The minute you vote on paper, you raise the likelihood your vote will never be counted,” said former Manhattan Borough President Ruth Messinger. Ms. Messinger knows something about poor Election Day counting. In the 1997 Democratic Mayoral primary, the Board of Elections initially reported that she had not received the 40 percent required to avoid a runoff with the second-place finisher, who happened to be the Reverend Al Sharpton. It was a major humiliation for Ms. Messinger and a huge moral victory for Mr. Sharpton. And then, a day or two later, the Board admitted that it had gotten the count wrong, and that there would be no runoff after all.

“I can certainly understand Reverend Sharpton’s rage when he was told there [would be] no runoff,” said Ms. Messinger. “By God, if you’re the other candidate, how can you not think somebody conspired to do you in after the official vote?”

Margin for Error

Even without a conspiracy, the margin for error is huge.

New York City’s voting machines are more than 30 years old, and the Board of Elections has only a handful of mechanics available to fix them on Election Day.

At P.S. 132 in Greenpoint, Brooklyn, poll workers discovered that none of their machines were working this past Election Day. They thought they were supposed to hand out “affidavit ballots,” a form of paper ballot given to voters whose names don’t appear on the registration rolls. But they had run out of affidavit ballots, so they began sending voters home. Finally a poll worker realized that they were supposed to be offering regular paper ballots, and they did so–but then the paper ballots ran out, too. More voters were sent home. The voting machines were finally fixed–at 8 p.m., an hour before the polls closed.

This was not an isolated incident. State Senator Velmanette Montgomery of Brooklyn said her office was flooded with phone calls from voters who could not vote for her because the lever next to her name jammed. The voters were given emergency ballots–but inspectors were unsure how to handle the paper ballots. “At the end of the day, when I visited the polling sites, some of the inspectors and some of the site coordinators said, ‘We will not count emergency ballots,'” Ms. Montgomery said.

The poll coordinators say they simply don’t have the staff to handle paper ballots, especially when there are a lot of them. Ann Louise Brackville, a poll coordinator in downtown Brooklyn, complained bitterly at the Voter Assistance Commission hearings of the Board of Elections’ lack of guidance on how to handle paper ballots. “Every poll site where machines break down, poll workers must invent their own way to count them,” she said. “I was told by other workers, ‘We simply bound them up and sent them to the Board of Elections.'”

Then there’s the matter of the registration rolls. For reasons that appear unclear, names seem to mysteriously disappear from the rolls, or voters are mistakenly redirected to far-off polling sites. Or voters are told to go to Board of Elections headquarters to straighten out matters.

In 1996, according to a report by Public Advocate Mark Green, some 5,000 to 10,000 voters were turned away when 384 voting machines at 100 polling places did not open on time. Since the paper ballots are packaged with the voting machines, those weren’t available, either. In at least 19 cases, according to the Green report, the voting machines didn’t open until 5 p.m., just four hours before polls closed.

New York City has mounted several unsuccessful efforts over the years to replace its Stone Age voting machines, but because of a combination of incompetence and corruption, according to Gene Russianoff of the New York Public Interest Research Group, “we are back at square one.”