ALBANY — Before New York City’s mayoral primary in June was derailed by embarrassing tabulating errors, there was already a history of failures under the state’s uncommon system of running elections.
The issue is a fundamental one that Albany has chosen to avoid for decades: whether this vestige of Tammany Hall political bosses dating to 1894 is a patronage mill that serves the Democratic and Republican party leaders at the expense of effective election administration or is a proven institution of checks and balances that has withstood the test of time.
Political leaders and academics say the troubled New York City primary on June 22 should force that long-ignored debate in Albany.
Statewide election administration is overseen by the state Board of Elections with four commissioners divided equally by the two parties. The New York City Board of Elections has 10 commissioners divided by party and boards of election in counties around the state have two to four commissioners split by parties.
The commissioners and often their staff are politically appointed party operatives and former elected officials chosen by party chairmen and with no required knowledge of operating elections.
For decades, good-government advocates and academics have blamed that system for tied votes or inaction, which had blocked reforms and investigations of candidates and parties.
The problem, academic researchers said, is that commissioners and staff chosen for their political affiliation are facing increasingly complex 21st century technologies that require professionals. They cite numerous problems blamed on human error, include counting test ballots and other problems in New York City's June Democratic primary; mistaken purges of voters in 2020, equipment breakdowns in most elections; the wrong names printed on absentee ballots; and overreliance on the companies that win contracts to provide the technology to address problems, the researchers said.
After the New York City mayoral primary, an exasperated Common Cause/NY issued a statement: "We told you in February and a bunch of times before that … The problems with the city and state Board of Elections are not new, and while there is consensus that these problems exist, reform has been stalled at every turn."
Two of those long-standing, well-documented problems: "A structure that is firmly under the control of political parties, rife with political patronage, with no accountability to voters and taxpayers … [and] a lack of funding for election administration."
New York is just one of nine states that uses an appointed board or commission to oversee elections by splitting party control evenly, according to the National Conference of State Legislatures. New York is the largest of these states, which have not adopted an elected elections chief, such as a secretary of state directly responsible to voters, or hired professional election administrators.
"Partisan boards undermine the view of election administration as a nonpartisan, technocratic, professional administrative task requiring expertise," said Paul Gronke, a political-science professor at Reed College in Portland, Oregon, who studies American politics, voting and elections. "Rather, it makes it seem like the whole thing is about parties competing for power."
"My sense, not being an expert on New York politics … is that New York City’s board is particularly problematic because the appointments process allows too much voice to political party organizations," Gronke said.
A study of more than a dozen measures, including voter turnout, registration and ease of voting, done by the Pew Charitable Trusts and the Massachusetts Institute of Technology Data & Science Lab ranked New York 49th in the nation for the 2018 election year.
In 2014, the state Moreland Commission to Investigate Public Corruption, which had the power to subpoena internal records and testimony, described the state Board of Elections as a "stagnant, party-based structure."
"The Board lacks the structural independence necessary to serve as a watchdog for our campaigns and elections," the report states. "For the board, bipartisanship means a tacit agreement among the parties to do nothing to enforce our laws. It means all-encompassing partisan gridlock that infects every decision, and does little to ensure anyone’s compliance with the Election Law."
Political party leaders and commissioners bristle at the criticism.
"Every time something goes wrong, immediately the answer is to scrap the system and replace it," said Jay Jacobs, chairman of the state Democratic Committee and the Nassau County Democratic Committee. "But the unanswerable question is, ‘Replace it with what?’ What’s going to be fairer? I don’t think anyone has come up with an answer for that."
He argues the bipartisan system means every vote that is questioned or challenged is reviewed by Democratic and Republican staffers along with the candidates involved, all overseen by a judge. Jacobs and others argue there is no system that is more transparent for both parties.
"I know that if you jettison bipartisanship, Democrats will be in control and I don’t think Republicans would think that would be fair," Jacobs said. "And if you are worried that elections are fair — and that seems to be the big issue — having bipartisan election boards while maybe imperfect, at least you have both parties keeping an eye on each other."
That collaborative approach worked in 2020. The state and local election boards earned praise for enacting long bottled-up changes in just weeks including expanded early voting and expanded mail-in voting. The changes were forced by Gov. Andrew M. Cuomo’s executive orders to avoid spreading the COVID-19 virus at crowded polls.
Jacobs, however, acknowledges the split-power can delay reforms modern elections are demanding.
"We have to find a better way," Jacobs said. "Yes, there are problems with updating systems and the like when it comes to a deadlock."
Election commissioners defend the process.
"I’ve seen some talk about changing the structure and that certainly concerns me," said Peter Kosinski, the Republican co-chairman of the state Board of Elections. "I think the real danger is if it’s turned over to single-party administration."
"I’m aware there have been some mistakes," Kosinski said. "And certainly people make mistakes, but it’s far less bad than when you have people making mistakes than when you have people manipulating elections for partisan use."
Kosinski dismisses the criticism that the bifurcated system leads to deadlocked votes and debates that lead to inaction on reforms, upgrades and initiating investigations of misconduct.
"The number of gridlocked votes is minuscule," Kosinski said. "It’s the same at the local level … there is not gridlock. It simply is not true."
But concern over the system isn’t new.
Gerald Benjamin, retired political science professor at the SUNY New Paltz, made the case to reform the structure of election administration eight years ago in testimony in Albany to the Moreland Commission.
He cited an even earlier effort, the 2002 New York State Task Force on Election Modernization. The task force called for some changes that have been mostly adopted, including more professional training, more effective recruitment, better pay for poll workers and improved communication. But the task force wouldn’t touch the partisan foundation of the system, stating it was "beyond the mandate of this task force."
Benjamin said a constitutional amendment adopted by the public is needed to make structural reforms. But before the issue could be subject to a referendum, it would need to be approved by two consecutive State Legislatures, and there’s been little support for the change among incumbents of both parties.
In November, the legislature will propose two constitutional amendments to voters: To allow mailed, absentee voting for all voters and to allow voter registration as late as Election Day.
The constitutional referendums do not pose any change in the bipartisan control of voting administration.
Examples of the consequences of the board’s structure include a 2-2 deadlocked vote in 2015 in which the board failed to close the loophole that allows corporations to create limited liability companies on paper and avoid the $5,000 corporate limit for political donations to candidates and parties. The loophole treats each limited liability company as an individual, with contributions limits 10 times higher than allowed for a corporation.
In 2014, the Moreland Commission called for an enforcement office independent of the bipartisan state Board of Elections to investigate election issues. In response, Cuomo created an independent enforcement office at the state Board of Elections. The first enforcement counsel, Risa Sugarman, spent six years winning a string of high-profile cases against politicians in both parties and the lobbyists who contribute to their campaigns, often clashing with the Board of Elections commissioners. The board soon curbed her power, requiring her to get approval from the board before she investigated.
She sued to hold her independence and lost in state court in 2019. Her casework slowed and her public comments on abuses and corruption ended. Cuomo didn’t reappoint her after her five-year term expired and she retired early this year. Now, the enforcement division’s associate counsel is the lawyer who represented the board against Sugarman.
The Brennan Center for Justice, a nonpartisan law and policy institute that works with the New York University Law School, is now examining election administration.
"We’ve seen examples elsewhere in the state that indicates election administration across New York merits strong consideration and needs to be strengthened," said Joanna Zdanys, counsel in the center’s Democracy Program. "When there are repeated mistakes year after year, election after election, the voters’ trust in the system can be damaged."