H A G E D O R N F O U N D AT I O N

A REPORT PREPARED FOR THE HAGEDORN FOUNDATION

H A G E D O R N F O U N D AT I O N

A REPORT PREPARED FOR THE HAGEDORN FOUNDATION

Strengthening Democracy

Through Voter Inclusion

Principles & Obstacles

EXECUTIVE SUMMARY

FOR THOSE WHO CARE ABOUT THE RIGHT TO VOTE as a central pillar of our republic

and of our state government, this is, as veteran voting rights activist Miles Rapoport of Demos

phrased it, a new moment. Recent events have raised the visibility of voting rights and given

advocates a sense that now is the time to act.

We’ve seen some grim evidence that our voting system is not what it should be: long voting lines;

polling places in Nassau County rendered unusable by superstorm Sandy; adoption of voter ID laws in

states across the nation, designed to deter the poor and minorities from voting; a Supreme Court decision

that has seriously weakened the Voting Rights Act of 1965; and a persistent, pernicious belief by

Americans that individual voter fraud is a real problem, despite all the facts to the contrary.

We’ve also seen signs of hope: a movement to amend the United States Constitution to create an explicit

right to vote; introduction of a federal Voter Empowerment Act, sponsored by Sen. Kirsten Gillibrand

of New York and Rep. John Lewis of Georgia, a civil rights hero; introduction of a similar Voter

Empowerment Act in the New York State Legislature; effective lawsuits across the country that beat

back voter ID laws; and an unexpected outcome in a race for New York State Senate, offering evidence

that some voters have begun to grasp the need for public campaign financing.

So the time is ripe for our state and federal legislators to summon the courage to make needed reforms.

The minimum goals must be to make registration easier, so that we can improve our abysmal levels

of voter participation, and to make voting less daunting and off-putting. In New York, the legislature

should at least: 1) Pass a bill allowing 16- and 17-year-olds to pre-register when they sign up for driving

privileges, so that, when they turn 18, they’ll be likelier to vote. 2) Make it easier for voters to register

and update their registration information whenever they do business with state agencies. 3) Make it

easier for them to keep their registration accurate and current, no matter where they move in the state.

4) Explore seriously the merits of in-person early voting, a reform that has the support of both

Gov. Andrew M. Cuomo and Assembly Speaker Sheldon Silver.

The purpose of this analysis is to examine what’s happening, both nationally and in New York, to give

lawmakers the information they need—and to give activists, including the New York Civic Engagement

Table, a factual underpinning for organizing. The analysis begins with a frank assessment of our state’s

shortcomings on voting, followed by a chart that compares three registration and three voting reforms,

then a longer description of what is happening in our state and our nation. The Hagedorn Foundation

hopes this document will be helpful both to elected officials and to our partners in the civic engagement

community. Most of all, we hope it will help New York State to become a national leader in enlightened

voting rights legislation.

Registration ReformsAUTOMATED REGISTRATION (SEE PAGES 9 TO 12 AND 14 TO 15.)

PRE-REGISTRATION (SEE PAGES 12 TO 13.)

SAME-DAY REGISTRATION (SEE PAGE 13.)

BENEFITS:

Reduces costs and errors.

BENEFITS:

SDR allows voters who got interested late to register right up to Election Day and cast a regular ballot.NY now closes registration 25 days before Election Day.

BENEFITS:

May remedy low registration rates among those aged 18 to 24.

COSTS:

Much cheaper: In 2008, OR spent $4.11 to register each voter on paper. With automated system, Canada spends only 35 cents.In NY, could save DMV $270,000 annually.

COSTS:

A-172 says fiscal impact is “none.”Election officials in SDR states call the cost “minimal.”

COSTS:

Minimal new costs.

BARRIERS:

Voters distrust any “automatic” registration by government.Proposed NY legislation (A-187A) lets voters choose automated registration or paper.

BARRIERS:

Requires a constitutional amendment, proposed in A-113.

BARRIERS:

Some fear that the young mostly vote Democrat.In NC in 2012, of 60,000 pre-registrations, 30 percent enrolled Republican, 30 Democrat, 40 independent. But NC has now eliminated pre-registration.

VOTER PARTICIPATION:

Registration rate increased from 28 percent to 53 percent among those aged 18 to 24 when AZ introduced online and automated registration.

VOTER PARTICIPATION:

Sharply higher turnout: From 1980 to 2012, it averaged 68.6 percent in SDR states, 58.3 percent in non-SDR states.

VOTER PARTICIPATION:

Increases turnout when accompanied by outreach to young people.In NC, more than 40,000 people aged 16 and 17 have pre-registered annually.

ELECTION INTEGRITY:

Reduces errors and opportunities for fraud.In AZ, Maricopa County found electronic registrations five times less error-prone than on paper.

ELECTION INTEGRITY:

Reduces the number of provisional ballots.Voters using SDR must attest to ID on site with election workers.SDR laws carry heavy penalties for fraud.

ELECTION INTEGRITY:

No increased risk of voter fraud.

FEASIBILITY:

In 2012, Governor Cuomo ordered DMV to do all of its registrations online. Previously did 300,000 a year, all on paper.Proposed legislation would expand that to other state agencies.

FEASIBILITY:

As of 2013, 13 states and the District of Columbia had adopted it. Legislation is pending in NY (A-172).

FEASIBILITY:

As of early 2013, six states and DC allowed 16-year-olds to register; two more allowed 17-year-olds.Several bills are pending in New York, including A-187A.

TECHNOLOGY:

NY already has one key element, a statewide voter database mandated by the Help America Vote Act of 2002 (HAVA).

TECHNOLOGY:

NY already has one key element: a statewide voter database mandated by the Help America Vote Act of 2002 (HAVA).

TECHNOLOGY:

NY already has one key element: a statewide voter database mandated by the Help America Vote Act of 2002 (HAVA).

Voting ReformsIN-PERSON EARLY VOTING (SEE PAGES 17 TO 20.)

VOTE CENTERS (SEE PAGES 21 TO 23.)

UNIVERSAL BALLOT DELIVERY (VOTE-BY-MAIL) (SEE PAGES 25 TO 28.)

BENEFITS:

More people want early voting.Reduces pressure on inefficient voting systems to handle all voters on one day.

BENEFITS:

Voters can study issues and candidates at length, in the privacy of the home, with the actual ballot present.Convenient voting from home.Voting in precincts is no longer needed.Reduces possibility of natural disasters affecting election.

COSTS:

Significantly more costly.In Suffolk, it could cost in the range of $1 million: for poll workers, ballots, and digitizing poll books.

COSTS:

In OR, precinct voting in 1998 general election cost $1.81 per vote cast. In 2010, a vote-by- mail special election cost $1.05.

BARRIERS:

Changes the way politicians have to campaign; they resist change.Using early voting smartly, they could campaign more effectively.

BARRIERS:

Might require state constitutional amendment (a multiyear process).

VOTER PARTICIPATION:

Studies show it increases turnout by three percent.

VOTER PARTICIPATION:

Strongly improves turnout.In the 2012 general election, turnout of voting- eligible population was 64.3 percent in OR, but only 53.6 in NY. Among actual registered voters, Oregon’s turnout was 82.8 percent.

ELECTION INTEGRITY:

Digitizing paper-based poll books is needed to prevent double voting.

ELECTION INTEGRITY:

OR compares the signature on every mail ballot to the one on file. Some fear unions/ companies could hold “ballot parties” to coerce votes, but there’s no evidence it’s happening.

FEASIBILITY:

More than 30 states already allow. Early voting period ranges from four to 45 days.Governor Cuomo and Speaker Silver support it.

FEASIBILITY:

Models exist in OR, CO and WA.

TECHNOLOGY:

Other machines beyond optical scanners may be needed (direct- recording electronic or print-on- demand).

TECHNOLOGY:

NY has significant work to do, to update its voter database.NY would have to install a system to check vote- by-mail signatures against those on file.

BENEFITS:

Allows no-wrong-door voting.Permits convenient voting at any vote center in the county.

COSTS:

Larimer has lower costs: fewer election workers and fewer supplies.

BARRIERS:

Partisanship: Party leaders will fight to make sure vote centers are placed in communities where their party is well represented.Patronage: Leaders will resist a reduction in the number of poll workers.

VOTER PARTICIPATION:

In 2004, Larimer County handled 94.6 percent of active registered voters: A third voted by mail, a third in early voting at vote centers, and a third at vote centers on Election Day.

ELECTION INTEGRITY:

Larimer developed an electronic poll book to keep voters from voting at multiple centers.With no-wrong-door voting, there are fewer provisional ballots.

FEASIBILITY:

In CO, Larimer County has used vote centers since 2003. It no longer uses precinct-based voting. In NY, no vote-center legislation is pending.

TECHNOLOGY:

Each vote center requires adequate distribution of multiple ballot styles.

Before we examine the potential improvements

in registration, voting rights and election

administration that the State of New York needs

to move ahead, we should spend a moment examining

where the Empire State now stands. The news isn’t good.

We live in a state with perennially poor voter turnout,

caused largely by a daunting array of obstacles that

make participatory democracy tougher for both voters

and candidates.

The Pew Center on the States has developed a new analytical

tool, the Elections Performance Index, that gives us a

better idea of the size of the mountain we must climb

to bring our state up to date in delivering the quality of

registration and voting experience that people deserve.

Before Pew released its initial EPI report in February 2013,

covering the 2008 and 2010 election cycles, we already

knew that New York was way behind other states in a

variety of measures.

For candidates, the state’s Election Law makes it far too

difficult for them to get on the ballot. One of the convoluted

Albany scandals, involving Sen. Malcolm Smith’s

attempt to run for mayor of the City of New York on the

Republican line, is about more than greed and venality.

At its core, it’s also about New York’s zany rules for getting

on the ballot, in this case the Wilson-Pakula certificate

that Smith allegedly tried to buy—a piece of election

arcana that most New Yorkers don’t even know exists.

For voters, the state makes either a good excuse or a good

lie necessary to get an absentee ballot. At the polls, voters

experience the results of the state’s stubborn “full-face

ballot” tradition, which helps keep incumbents in office

but tortures voters with tiny typefaces—in addition to a

maddening proliferation of symbols. New York was the last

state to implement the Help America Vote Act of 2002.

That delay ended up helping in some ways, but our tail-

end performance was another strong symbol of how far

behind New York has been in delivering this basic service

to its citizens.

In putting together its

Elections Performance

Index, Pew set out to

evaluate elections based

on data—not merely on

anecdotes. A look at the

methodology section

of the EPI shows how

maddeningly difficult

and complex it was to

get the right data for

fair comparisons. But

there’s nothing com-

plex about this simple

declarative sentence

from Pew, describing what voting is supposed to be about:

“The U.S. election system works best when all eligible voters can cast

a ballot conveniently and when those ballots are counted accurately

and fairly.”

Toward that end, to rate the 50 states and the District of

Columbia on how well each is living up to that goal,

Pew came up with this set of 17 performance indicators,

with the help of a group of advisers led by Massachusetts

Institute of Technology political science professor

Charles Stewart:

1. What percentage of absentee ballots was not counted

out of all ballots cast?

2. What percentage of absentee ballots sent out by the

state was not returned?

3. How many jurisdictions reported statistics on the 18

core survey items in the U.S. Election Assistance

Commission’s Election Administration and Voting Survey?

THE EMPIRE STATE STRIKES OUT

. 1 .

WE LIVE IN A STATE WITH PERENNIALLY POOR VOTER TURN-OUT, CAUSED LARGELY BY A DAUNTING ARRAY OF OBSTACLES THAT MAKE PARTICIPATORY DEMOCRACY TOUGHER FOR BOTH VOTERS AND CANDIDATES.

4. What percentage of voters did not cast a ballot due to

an “illness or disability (own or family’s)”?

5. What percentage of military and overseas ballots returned

by voters was not counted?

6. What percentage of military and overseas ballots sent

out by the state was not returned?

7. Were voters allowed to submit new registration

applications online?

8. Was a voting equipment performance check required

after each election?

9. What percentage of all voters had to cast a provisional

ballot on Election Day?

10. What percentage of provisional ballots was not

counted, out of all ballots cast?

11. How many people reported not casting a ballot because

of “registration problems,” including not receiving

an absentee ballot or not being registered in the

appropriate location?

12. What proportion of submitted registration applications

was rejected for any reason?

13. What percentage of the voting-eligible population

cast ballots?

14. What percentage of the voting-eligible population was

registered to vote?

15. Did the state offer basic, easy-to-find, online tools so

voters could look up their registration status, find

their polling place, get specific ballot information,

track absentee ballots, and check the status of

provisional ballots?

16. What percentage of the ballots cast contained an

under-vote (i.e., no vote) or an over-vote (i.e., more

than one candidate marked in a single-winner race)

—indicating either voting machine malfunction or

voter confusion?

17. How long, on average, did voters wait to cast

their ballots?

In the 2008 election cycle, a presidential year, New York’s

score was 60. In the 2010 cycle, a midterm election, our

state’s score was 45. Sadly, the Empire State’s performance

was bad enough to earn it a place in the category of poorest

performing states, along with Alabama, California, Mississippi,

Oklahoma, South Carolina, and West Virginia.

“The data generated exactly the kind of conversations that

will lay the groundwork for a better-run system,” wrote

Professor Heather Gerken of Yale University, whose

book, The Democracy Index, suggested accountability

along the lines of what Pew and its advisers helped to

create. “The EPI, in short, is the type of reform that makes

bigger, better reform possible.”

The power of the data and the embarrassment of our state’s

presence on that list of poorest performers ought to be

more than adequate motivation to do something.

But where to start?

Well, it all begins with getting more people registered in

the first place, including registration up to Election Day

itself, and making it possible for them to keep their

address and other information current, using online portals.

We also have to look at ways to make it easier for people to

get to the polls and to vote without long lines, to vote early

at the polling place, and to vote by mail without having

to offer specific excuses for not coming to the polls.

Let’s begin with a look at the principles that should guide us.

. 2 .

One problem facing voting rights advocates is the lack

of an explicit right to vote in the Constitution of the

United States. Another is the divided attitudes of voters

on the question of whether voting is a right or a privilege. (In some

countries, it’s an obligation—Australia, Argentina and Brazil, to

name a few.) While advocates want to make the argument that

voting is a right, the polling on that issue by the Brennan Center

for Justice at New York University School of Law, the Advancement

Project, and Lake Research Partners shows that real people are split,

with 47 percent saying it’s a

right, 35 percent saying it’s

a privilege, and 17 percent

saying both. Every group is

split on this, but between the

two major parties, the divide

is sharp, with 59 percent of

Democrats saying it’s a right

and 43 percent of Republicans

saying it’s a privilege.

So arguing that voting is a

right doesn’t work well with

the public. But to sustain

energy and long-term

persistence, it’s important

that voting rights advocates cling to an unshakable belief in

an affirmative right to vote as a core element of our republic.

Another vital principle is what Tova Andrea Wang of Demos

calls the Voter Inclusion Principle, in her important

2012 book, The Politics of Voter Suppression: Defending and

Expanding Americans’ Right to Vote.

“Wang argues that reforms that increase participation are

nearly always legitimate, while activities that suppress voting

are almost never legitimate,” writes Janice Nittoli, of the

Century Foundation, in her foreword.

“The voter inclusion principle is not a new way of expressing

what may seem like the prevailing Democratic-leaning

ideology and politics with respect to election reform,”

Wang writes. “It is a means of restoring the concept of voting

as a right. It is both a plea and a plan for bringing greater

equity and justice to our democratic system of elections for

the benefit of all Americans.”

In an interview from Belgium, where she now lives and

works—focusing heavily on voting in Africa—Wang

put it this way: “The idea is that you always want to err on

the side of being more inclusive, unless there’s some incredibly

strong reason not to be, that is proven through real data,

real evidence—in which case you have to do a different

analysis. But otherwise, the voting system should be

accessible and inclusive, absent overwhelming

countervailing data.”

So VIP, the Voter Inclusion Principle, should be the North

Star of voting rights advocacy work. In effect, the VIP makes

every voter a VIP, Very Important Person.

Another key to advocacy is a vital statistic, the VEP, voting-

eligible population. This statistic is central to the work of

Professor Michael McDonald of the United States Elections

Project at Virginia’s George Mason University. VEP represents

the voting-age population (VAP), minus those who are old

enough to vote but otherwise ineligible, such as felons and

noncitizens. In the 2012 general election, McDonald calculated,

the nation’s total voting-eligible population was 221,925,820.

The number of those casting a ballot for the highest office,

president, came to 129,072,347, or 58.2 percent of VEP.

The total ballots cast for all offices came to 130,306,739,

or 58.7 percent. In other words, more than 40 percent of those

who could have come to the polls and helped to shape

the future of their nation and states chose not to exercise

that right.

. 3 .

FIRST PRINCIPLES

THE IDEA IS THAT YOU ALWAYS WANT TO ERR ON THE SIDE OF BEING MORE INCLUSIVE, UNLESS THERE’S SOME INCREDIBLY STRONG REASON NOT TO BE, THAT IS PROVEN THROUGH REAL DATA, REAL EVIDENCE.

In New York, McDonald estimated the voting-eligible

population in 2012 at 13,299,567. The number of those

casting a ballot for the highest office, president, came

to 7,070,325, or 53.2 percent. The total ballots cast for all

offices came to 7,125,538, or 53.6 percent.

In other words, New York did worse than the national

average, which is sadly deficient to begin with.

Some of that unsatisfactory turnout in local races may be

attributable to the lack of compelling candidates. That’s a

problem for the political parties to resolve. But other

turnout-suppressing issues relate directly to our elections

system—outmoded registration procedures, ineffective

elections administration and poorly trained poll workers

who create long lines and discourage voters, lack of

convenient voting modalities such as no-fault absentee

balloting and voting on weekends. Removing those obstacles,

making the crooked roads straight and the rough ones

smooth, must be the goal not only of voting rights advocates,

but also of elected officials.

“This is how election law should be used: to encourage and

boost voter participation, not make it unnecessarily difficult,

or serve as a deterrent to any citizen’s participation,”

Wang wrote in The Politics of Voter Suppression.

With that as the ultimate goal, what would a bold, visionary

path to that result look like?

. 4 .

While the political reality is that we in New York

have found ourselves working for small pieces of

the big dream in 2013, and reaching almost none

of those modest goals, it’s helpful to remember that there are some

bold approaches out there. They include a long march toward the

28th Amendment to the Constitution of the United States, which

would create a specific, affirmative right to vote for the first time

in our nation’s history, and ambitious Voter Empowerment Act

legislation in both Congress and the New York State Legislature.

The likelihood is that neither those bills nor that amendment

will succeed in the short term, but they are worthy objects of

aspiration. So, before we proceed to a more nuts-and-bolts tactical

discussion of what we may be able to accomplish in the short run

in New York, we should spend a few moments indulging in those

high hopes.

THE 28TH AMENDMENT

Here’s the simple House language proposing what would

become the 28th Amendment to the Constitution:

Resolved by the Senate and House of Representatives of the United

States of America in Congress assembled (two-thirds of each House

concurring therein), That the following article is proposed as

an amendment to the Constitution of the United States,

which shall be valid to all intents and purposes as part of

the Constitution when ratified by the legislatures of three-

fourths of the several States within seven years after the

date of its submission for ratification:

Section 1. All citizens of the United States who are eigh-

teen years of age or older shall have the right to vote in any

public election held in the jurisdiction in which the citizen

resides. The right to vote shall not be denied or abridged

by the United States, any State, or any other public or

private person or entity, except that the United States or

any State may establish regulations narrowly tailored to

produce efficient and honest elections.

Section 2. Each State shall administer public elections in

the State in accordance with election performance standards

established by the Congress. The Congress shall reconsider

such election performance standards at least once every

four years to determine if higher standards should be

established to reflect improvements in methods and

practices regarding

the administration

of elections.

Section 3. Each State

shall provide any eligible

voter the opportunity

to register and vote

on the day of any

public election.

Section 4. The Congress

shall have power to

enforce and implement

this article by

appropriate legislation.

In that brief amendment,

these are the salient points:

– Every citizen 18 and over

has a right to vote.

– Congress will set—and

periodically adjust—minimum

election performance standards for state and local

governments.

– Every citizen will have the right to register on Election

Day.

That would be a truly powerful advance for our democracy.

But amending the Constitution is a dauntingly difficult

process, as the framers designed it to be. On top of that

difficulty of process, a real leadership problem now confronts

those who want to amend the Constitution to make the

right to vote clear.

. 5 .

HIGH HOPES

AMENDING THE CONSTITUTION IS A DAUNTINGLY DIFFICULT PROCESS, AS THE FRAMERS DESIGNED IT TO BE. ON TOP OF THAT DIFFICULTY OF PROCESS, A REAL LEADERSHIP PROBLEM NOW CONFRONTS THOSE WHO WANT TO AMEND THE CONSTITUTION.

“We had Congressman Jesse Jackson Jr. as a champion,”

said Judith A. Browne Dianis, co-director of The

Advancement Project, a next-generation, multiracial

civil rights organization based in Washington. “He

introduced the bill every year that he was in Congress.”

But Jackson is gone, resigning as a result of ethics

investigations. “So now we’re trying to figure out if

there’s someone who will pick up that cause.”

Identifying that someone could be a role that the New York

Civic Engagement Table might want to embrace. For example,

there’s a new member of Congress representing the 8th

Congressional District of New York, in Queens. His name

is Hakeem Jeffries, and he seems like one possibility for this

role: fiercely intelligent, eloquent and energetic. But his is

just one name. The bottom line is that this amendment

needs a champion who has the energy and vision to stay in

this struggle for the long haul.

FEDERAL VOTER EMPOWERMENT ACT

Next to an amendment to the Constitution, what would

be the most dramatic possible outcome of the struggle for

broader voter participation? Here’s an idea: final passage of a

landmark voting reform law, to be called The Rep. John R.

Lewis Voter Empowerment Act, named for the civil rights

hero who has served the people of Atlanta in the House of

Representatives since he was first elected in 1986. Enactment

of a sweeping piece of legislation that takes a variety of steps

to increase voter participation—and is named for one of

the original Freedom Riders, an icon of the civil rights

movement—would have not only wide practical effects but

immense symbolic power.

Lewis is sponsoring the Voter Empowerment Act in the

House. Sen. Kirsten Gillibrand of New York is sponsoring

it in the Senate. The bill, nearly 200 pages long, is a dream

compendium of improvements: modernizing voter registration;

ensuring access to online registration; allowing same-day

registration; encouraging young voters through pre-registration;

setting standards for voting machines to make sure votes

get counted accurately; authorizing funds for poll worker

training and setting standards for polling place practices;

and cracking down on voter “caging,” use of the mails to

compile lists of voters to be fraudulently challenged and

removed from the rolls.

As federal legislation can often be, the VEA is a product of

a fairly broad coalition effort. For example, D emos played

a central role in drafting the same-day registration section

of the national bill. Lee Rowland coordinated the drafting of

the New York Voter Empowerment Act, in her role as

counsel to the Democracy Program at the Brennan Center.

(She has since moved to the American Civil Liberties Union’s

Project on Speech, Privacy and Technology Project, where

her focus will be voting rights legislation.) Another Brennan

Center attorney, Jonathan Brater, was deeply involved in

drafting the federal bill.

If the Lewis-Gillibrand VEA were enacted, it would

complete the work begun by the Help America Vote Act of

2002. It would, in effect, be HAVA 3.0.

“It’s like the dream bill,” said Judith Browne Dianis. “It’s

got everything in there. I mean, it’s very lofty. Of course, the

problem is that we don’t have the right Congress to be able

to move something like that. But I think that it really sets

the standard. You kind of use some of these things like the

Voter Empowerment Act as a marker and as a messaging

bill. How do we use the bill to say this is where we should

be going, this is what’s lofty, this is what the vision is—

knowing that you may not get it passed, but then everything

that gets passed gets measured against it? It also be-

comes an opportunity to just have a national dialogue

about those things.”

. 6 .

Unfortunately, there is a sad precedent for a sweeping voting

rights bill, sponsored by an iconic legislator, that did not

make it through Congress. “I remember a few years ago,

when Hillary Clinton was still a senator, and she introduced

the most amazing election reform bill ever,” said Tova

Andrea Wang. “It had everything in it that we could all

hope for. It didn’t get very far.”

The problem, of course, is that the shape of our voting system

is not determined by the lofty so much as by the expedient:

what’s best for incumbents. That’s a self-protective trait

common to both major parties.

“This is one of the interesting dynamics of election law in

particular, that both Democrats and Republicans have skin

in the game,” Browne Dianis said. “For the Democrats too,

it’s not always about ‘let’s expand the electorate.’ First of all,

it’s individual skin in the game. If I expand the electorate,

then am I opening up the doors to people who won’t vote for

me, or I have to now court and get into my fold people who

I don’t even know. I have to identify them. I have to work a

little harder. It’s nice to know who’s voting for you, and you

don’t have to do any more. It’s a really sad statement, but

it is so true, because I’ve seen it in the work that we’ve done

over the years.”

Still, organizations such as the NAACP strongly support

the federal VEA bill.

“We think that we have to put something out there,” said

Jotaka Eaddy, senior advisor to the NAACP president and

CEO and senior director for voting rights. “We wholeheartedly

support the Voter Empowerment Act. Maybe some pieces

of it will move forward. There needs to be something in

Congress, something that Congress can focus on.” While

the VEA languishes in Congress, the NAACP is wisely not

taking its eye off the prize that seems more attainable in the

short term: state-level reform, on a variety of issues, from

same-day registration to restoration of voting rights of those

convicted of felonies.

New York, of course, is one of those states where a lot of

work needs to get done. As in Washington, there’s a big

aspirational bill to send a message of what needs doing and

set the stage for passage of as many elements of the omnibus

bill as possible.

NEW YORK VOTER EMPOWERMENT ACT

Like the federal bill, the New York version is a coalition

effort. Lee Rowland was at the heart of the coordination for

the Brennan Center, along with representatives of such

organizations as the New York Civil Liberties Union, New

York Public Interest Research Group, and the League of

Women Voters. They had the blessing of Assemb. Brian

Kavanagh of Manhattan to do the nuts-and-bolts drafting.

The drafting-and-revising process also included representatives

of Sen. Michael Gianaris of Queens, who sponsors the

bill in the Senate.

Though there are similarities between the federal and New

York bills, there are differences as well. For example, the

Lewis-Gillibrand bill deals with same-day registration.

The New York omnibus bill (A187/S619), facing the

clear language in Article II of the state’s constitution that

registration must end 10 days before Election Day, does

not deal with same-day registration. The strong language

on student rights in the state bill does not appear in the

federal legislation.

As with the Lewis-Gillibrand bill, the Kavanagh-Gianaris

proposal for the moment is a messaging bill— a starting

point for hearings. In fact, Kavanagh does not chair the

relevant committee, the Committee on Election Law. The

chairman is Assemb. Michael Cusick of Staten Island. No

hearings on the omnibus bill have been scheduled.

Now, let’s look in a little greater depth at some of the

reforms we laid out in chart form at the top of this analysis

—starting with the need to register more voters.

. 7 .

. 8 .

Though our goals include increasing the numbers of New

Yorkers who are registered to vote and the numbers of

those who actually do vote, it’s instructive to remember

that one reason why this is so difficult is that registration itself

is a form of voter suppression.

“If you take a look at the history of voter registration—and

I’m talking about going back to the 1800s—voter registration

laws were targeted at urban centers,” said Michael McDonald

of the United States Elections Project at George Mason

University. “Rural state legislators were fearful of all

these immigrants who were coming into the country.

So they implemented these registration laws.”

The same is true of the Empire State. “We did not have

registration laws in New York until in the 1800s, after

emancipation, after the Chinese, after the Irish, after the

Italians and after the Jews started to come,” said Neal

Rosenstein, the government reform coordinator of the New

York Public Interest Research Group (NYPIRG), who has

been working on election issues in the state for more than

a quarter-century. Those new groups posed something of a

threat to the existing power structure in the state. “That’s

when we got a lot of our registration laws,” Rosenstein

said. “It used to be, if you were a rich white male who owns

property, of course you could vote. But when everyone else

started showing up…then all the restrictions were put in

place.” In other words, registration was not originally meant

to make it easier for people to vote.

Now, of course, registration is nearly a universal phenomenon

in our nation—except for the State of North Dakota, which

proudly boasts of being the only state in the union that

doesn’t require some form of voter registration. Here’s a

link to a history of how that unusual distinction came to be:

http://www.nd.gov/sos/electvote/voting/vote-history.html.

The absence of registration doesn’t seem to have hampered

North Dakota’s performance on Pew’s Elections Performance

Index. In the 2008 presidential election cycle, New York,

which does have a registration system, had a score of 60. For

North Dakota, with no registration system, the score was 82.

In New York, registration and voting—like so many other

aspects of political life—live inside a tight constitutional set

of restraints. Here are some of them, from Article II:

Voters must have “been a resident of this state, and of the

county, city, or village for thirty days next preceding an

election.” That seems reasonable enough, but in today’s

highly mobile society, when people move in and out of states

often, it essentially bars last-minute voting by new arrivals.

Welcome to New York, and check your ballot at the door.

Voters absent from their county of residence at the time of

an election can get absentee ballots. So can those suffering

from “illness or physical disability.” Those are the only

excuses acceptable in the constitution.

Registration “shall be completed at least ten days before

each election.” Actually, the state’s real practice is even

more restrictive than the constitution requires: New York

closes registration 25 days before Election Day.

A voter “may be registered and his or her registration

continued so long as he or she shall remain qualified to

vote from an address within the jurisdiction of the board

with which such voter is registered.” If you’re moving

from one county to another, covered by a different board

of elections, you’ve got a big hurdle to jump.

So, how to make registration easier in New York? A pioneer

of vote-by-mail in Oregon, former Secretary of State Phil

Keisling, looks at registration within the frame of what

Oregonians already have. He likes to call it “universal ballot

delivery.” If you’re registered, you automatically receive your

ballot about two weeks before Election Day. “If you think

about voting reform efforts on a continuum,” Keisling said,

“if you decided that step two [receiving a ballot every year]

. 9 .

REGISTRATION

. 10 .

President Lyndon B. Johnson signed the Voting Rights Act into law on August 6, 1965, in the presence of civil rights leaders, including Rev. Martin Luther King Jr., Rosa Parks, and John Lewis.

Courtesy Lyndon B. Johnson Library

. 11 .

should be on automatic pilot, it’s not a big logical leap to

ask about step one: What about if I’m an American citizen?

Shouldn’t I be presumptively registered?”

But we are far from that kind of presumptive registration.

“The United States is one of few democratic nations that

place the entire burden of registering to vote on individual

citizens,” wrote Jennifer S. Rosenberg and Martha Chen

in “Expanding Democracy: Voter Registration Around The

World,” a report for the Brennan Center for Justice. “Today,

one-quarter to one-third

of all eligible Americans

remain unregistered—

and thus are unable

to cast ballots that

will count.”

In their study of voter

registration systems in

sixteen countries and

four Canadian provinces,

Rosenberg and Chen

looked at a spectrum of approaches to registration, from

countries that leave the burden of registration almost

entirely on the voter to nations that have decided that

the burden should be in the hands of government. On that

spectrum, there are only five nations who choose to leave the

burden on the voters: the Bahamas, Belize, Burundi, Mexico,

and the United States. The study included a depressing

chart showing the voter registration rates, ranging from

100 percent in Argentina down to the lowest, 68 percent

in the United States. Each of the four Canadian provinces

was above the 90 percent mark. The highest was Saskatch-

ewan, at 97 percent. In all, Canada’s registration rate was

93 percent.

The secret to the registration success that they studied was

simple: data-sharing. “In these places—Argentina, Australia,

Canada, France, and the Canadian provinces of British

Columbia, Ontario, and Québec—voter registration is

virtually automatic,” Rosenberg and Chen reported. “Election

officials routinely add new voters to the rolls based on

information that other government agencies provide on a

regular basis; there is no need for these voters to interact

with election officials directly and no corresponding

mountain of paperwork.”

The country they propose as a model for the United States

is Canada, which shares many demographic and political

characteristics with our nation. But there’s one big

difference. “The centerpiece of Canada’s system is a voter

database that is updated continuously, based on information

that 40 different government agencies routinely provide to

Elections Canada, the federal election authority. Provincial

and territorial departments of motor vehicles, the national

postal service, provincial and territorial electoral agencies,

and the federal tax authority all provide data.”

The problem, of course, is that there is an Elections Canada

in Canada, but no corresponding federal agency in the

United States. In fact, the lack of such an agency tends

to stun people who encounter Tova Andrea Wang in the

course of her work in Europe and Africa. What is it about

our electoral system that most surprises people in other

nations of the world? “The biggest thing—and this gets a

good laugh every time actually I speak at a public meeting

outside of the U.S.—the fact that the United States has no

federal commission that oversees elections,” Wang said. “In

almost every country that I work in, they have an independent

agency that is responsible for the administration of

elections. It’s separate from the executive and nonpartisan.”

In our country, we have the Election Assistance

Administration, created by the Help America Vote Act of

2002. The statute did not set it up to resemble Elections

Canada. “They were never meant to be anything close to

being like that in the first place,” Wang said, Besides,

though the statute authorizes four commissioner seats,

the current number of vacancies is four and the number of

seated commissioners is zero—thanks to partisan politics.

TODAY, ONE-QUARTER TO ONE-THIRD OF ALL ELIGIBLE AMERICANS REMAIN UNREGISTERED.

“Literally, I’ve had people just stunned that we don’t have

an agency that’s in charge of this stuff at a federal level,

that it is as decentralized as it is,” Wang said.

Short of the exceedingly difficult-to-achieve universal

registration—registering people to vote while they’re still

in diapers—the answer to greater registration has to be a

combination of approaches, including the kind of robust,

routine agency data-sharing that Rosenberg and Chen

found in other nations. Let’s start with pre-registration.

If we can’t register people while they’re in diapers, how about

while they’re in high school, and one of the two things many

of them want most in the world is the freedom to drive?

PRE-REGISTRATION

It’s too early to form a comprehensive judgment on how

well this works, because it’s too new. So let’s look at North

Carolina, which passed its pre-registration law in 2009,

effective January 1, 2010.

“It was rolled into an omnibus election change bill in the

Senate,” said Bob Hall, the executive director of Democracy

North Carolina, a nonpartisan voter participation advocacy

group that pushed hard for pre-registration. “I talked with

the minority leaders as well as the majority leaders. We got

Republicans on board early. It was sponsored in the House

by the youngest Democrat and the youngest Republican.

Both houses were majority Democrat.”

The bill permitted pre-registration of citizens aged 16 and 17,

most commonly through civics classes and other activities

at their high school and through their contact with motor

vehicles authorities. “It connects to these two institutional

systems,” Hall said. “One is the driver’s license agency, when

they’re 16. Just as they’re getting their ticket to freedom with

a license, they’re getting a ticket to a first-class citizenship.”

The bill also has language about promoting pre-registration

in civics class.

Since the law took effect, it has resulted in the pre-registration

of more than 107,000 North Carolinians aged 16 and

17. In September 2012, Democracy North Carolina took

a look at the 60,000 students out of the 107,000 who

would be 18 by Election Day 2012. That study produced

this telling statistic: 30 percent had chosen to enroll

as Democrats, 30 percent Republican, and 40 percent

unaffiliated. That result would seem to argue that

pre-registration is not hurting any single party.

The unfortunate reality is that each major party tends to

look at any change in voting rules through the lens of what

will hurt or help its electoral chances, both in the short

term and the long term. That calculus falls short of Tova

Wang’s more philosophical framework for analyzing changes

in our voting system. “Our democracy will only be a true

democracy when the full range of voices and interests have

an equal opportunity to be heard and heeded,” Wang wrote

in The Politics of Voter Suppression.

Right now in North Carolina, despite the 2012 statistics

showing that the pre-registration law appears to have been

almost perfectly neutral in the party enrollments it produced,

there’s a Republican majority in both houses and a Republican

governor, and a major Republican funder named Art Pope,

now the state budget director. In 2013, a little more than

three and a half years into the state’s pre-registration era, the

legislature passed and the governor signed a sweeping bill

that ended pre-registration and took other restrictive steps,

such as reducing the days of early voting.

In Maryland, the home state of Rob Richie, executive director

of the national election reform advocacy group FairVote,

pre-registration is alive and well. In fact, Richie said,

Maryland’s pre-registration goes a little further. “We allow

17-year-olds to vote in primaries, if it’s associated with a

general election when they’re going to be 18,” Richie

said. “Once they’re on the rolls, it’s a simple database

management issue. Our town of Takoma Park is about to

. 12 .

. 13 .

lower the voting age to 16 for local elections. They can just

use the state rolls. It’s super easy for them to give their rolls

to the city, for the city to turn them into active voters.”

One problem with pre-registration is that there’s a lack of

hard data on its ultimate impact on voter participation,

once the pre-registered teens reach actual voting age. But

Lee Rowland, who worked on the Voter Empowerment Act

legislation in New York, sees every reason to believe that it

will help. She cites data showing a strong increase in

registration after the National Voter Registration Act of

1993, also known as The Motor Voter Act. It set about

cutting registration costs by using motor vehicles agencies

and other offices to collect data that could be used for voter

registration. As the states adopted implementing legislation,

registration increased noticeably. Rowland is confident that

pre-registration will have a similar effect.

It’s also true that, once those aged 16 and 17 are pre-

registered, they’ll begin to receive mountains of mail and

plenty of phone calls from candidates and parties. Some

studies show that party-based contacts like those can

increase registration rates among those contacted by as

much as three to five points.

Nationally, FairVote urges a uniform age of 16 for pre-

registration. “In some states, all 17-year-olds and some

16-year-olds can register,” a FairVote analysis explains.

“In other states, some 17-year-olds and no 16-year-olds can

register. In many states it changes year to year based on the

date of the next election. The lack of uniformity creates

confusion and makes it harder to run effective voter

registration and education programs in schools and at the

Division of Motor Vehicles.”

This year, pre-registration of people at 16 and 17 is part of

both the omnibus Voter Empowerment Act in New York

and stand-alone legislation. There’s no compelling reason

why it can’t be adopted here, along with some strong

requirements for civic education in the schools, so that the

schools become as important an incentive for preregistration

as the Department of Motor Vehicles.

SAME-DAY (ELECTION DAY) REGISTRATION

The 2011-2013 Elections Legislation Database of the

National Conference of State Legislatures, an excellent

source of information about election-related legislation

across the country, showed 144 bills in 32 states on same-

day or Election-Day registration (EDR). One of them,

A-172, is sponsored by Assemb. Brian Kavanagh, who is

also the sponsor of the omnibus Voter Empowerment Act.

The bill memo cites six EDR states— Idaho, Maine,

Minnesota, New Hampshire, Wisconsin and Wyoming.

“On average, turnout was 14.4 higher in EDR states than

across the country in the 2004 election cycle,” the memo

said. “New York consistently ranks near the bottom in

voter turnout in the country.” In 2013, both Colorado and

Maryland enacted same-day registration laws.

The problem with this piece of Kavanagh legislation,

which he has offered before, is Article II of the state’s

constitution, which says that registration must end 10 days

before Election Day. Kavanagh’s administrative bill is

fine, as far as it goes, but it will get nowhere without a

constitutional amendment—preferably a thorough rewrite

of the entire Article II, to enable a whole suite of election

reforms that will allow New York to enter the 21st century

and exit the unpleasant lists that rank our state so low on the

vital scale of making it easier for its people to register to vote.

OTHER REGISTRATION MODERNIZATIONS

Happily, there are things the State Legislature can do to

improve our registration system without resorting to the

long, onerous process of constitutional amendments. 2013

would have been a good year to do one or more of them.

We’ve already discussed pre-registration. In addition, this

could have been the year to move boldly toward creating a

real system of automatic updating of addresses, through

a variety of state agencies. That would help solve the

portability problem. Your address would automatically be

changed whenever you interact with a list of state agencies

included in Brian Kavanagh’s Voter Empowerment Act.

It’s important to note

that this is “automated”

registration, as opposed to

“automatic” registration.

Polling shows that people

are fearful of letting the

government decide for

them whether they should

register or not. They need

to have an option, which

the Kavanagh VEA

preserves for them. It

gives people another

opportunity to say, in

effect, that they’d like

to be registered to vote.

But the bill doesn’t force

registration on anyone.

Voters would receive

an explanation of the

requirements for

eligibility, and they’d

have to affirm that they

are eligible voters.

The bill not only increases the opportunity for voters to say

yes to registration but also decreases the opportunity for

errors. Rowland cited Maricopa County, Arizona, which has

automated all of its DMV transactions for several years. The

experience there is that registrations completed on paper

have five times as many errors and duplicates as those coming

in through the electronic system. And the electronic

registrations are about 80 cents a form cheaper than

those on paper.

When Gov. Andrew M. Cuomo directed the Department of

Motor Vehicles in August 2012 to streamline its registration

process, he said: “At the DMV, or in their own homes, New

Yorkers will now have a convenient and secure way to ensure

they are able to register and exercise their right to vote.”

The department had been processing about 300,000 motor

voter applications a year. Unfortunately, the process has been

manual. Drivers filled out paper forms at one of 129 DMV

branches, and employees at the DMV had to sort those

pieces of paper and mail them to the correct county board of

elections. In our era of electronic records and astonishing

algorithms, of course, this is madness. So Cuomo directed

DMV to replace most of those paper forms with digital records.

Under the new system, people who hold either a state driver’s

license or a non-driver ID issued by the state can now register

or update their address or party enrollment in one of two ways:

They can do it from home, using a secure online account on a

website run by the DMV, https://my.dmv.ny.gov. Or they can do

it at new electronic terminals at DMV offices around the state.

So far, so good. But the electronic “signatures” involved in

this new process turned out not to be universally acceptable.

At first, the Suffolk County Board of Elections balked

at accepting the digital signatures. They wanted a “wet

signature,” presumably produced by a human hand with

pen on paper. To its credit, with a strong push from the

Long Island Civic Engagement Table, the Suffolk board

ultimately backed down. But glitches like that should

be fewer, after the online system for registering and

changing addresses is included in the Election Law itself.

Kavanagh’s Voter Empowerment Act does just that.

. 14 .

IN THIS AGE, WHEN WE CAN SYNC ALL OUR PERSONAL CONTACTS INSTANTANEOUSLY ON ALL OUR DEVICES —SMART PHONE, TABLET AND DESKTOP COMPUTER—SURELY WE CAN FIND A WAY TO MAKE CERTAIN THAT EVERYBODY WHO LEGALLY CAN BE REGISTERED ACTUALLY IS REGISTERED, AND THE VOTER ROLLS ARE CLEAN, ACCURATE, AND UP TO DATE.

. 15 .

Cuomo’s action also needs to be broadened—to include

state agencies beyond DMV—as the state VEA would do.

At the suggestion of NYPIRG’s Neal Rosenstein, the state

VEA requires the state and New York City elections boards

to provide City University of New York and State University

of New York campuses with special registration forms. Many

agencies have to do annual reports on how many forms they

have handed out and how many people have actually

registered. But Rosenstein didn’t want to place new

administrative burdens on the CUNY and SUNY systems.

So the campuses would get “serialized” forms. With those

serial numbers, it would be clear where the completed

registration forms originated within SUNY, CUNY, or

public school districts. So SUNY and CUNY would be

able to boast about the level of civic engagement of their

students but wouldn’t have to cope with a heavy new

reporting requirement.

Another student protection in the VEA, contributed by the

New York Civil Liberties Union, is to clarify the registration

status of students, to make clear that they have the right

to decide for themselves their “locus of…primary concern,”

the parental home or the college community. That right

should already be protected, in theory, but it doesn’t

always work. In the 2012 election, for example, students

at some Hudson Valley campuses had a tough time. “It

was an endless assault on students in Dutchess County,

from even just getting voter registration,” Rosenstein said.

“They refused to give us voter registration forms to register

folks... So there were students who basically not only weren’t

getting forms, but then they weren’t processing the forms.

There was a slowdown in the office, and then, on Election

Day, they had problems as well.”

It’s not in the VEA bill, but another Neal Rosenstein idea

is to require various public franchise-holders, such as Con

Edison, LIPA, and phone companies to distribute voter

registration forms. “When someone moves, that should

be part of their franchise agreement: They send them with

that first bill a voter registration form or that access to

register online,” Rosenstein said.

A little imagination could probably come up with additional

ideas for elevating voter registration to something all New

Yorkers strive for. In the process, our state can do its part to

clean up the nationwide mess that the Pew Center on the

States has found: About 24 million voter registrations in the

United States—one of every eight— are no longer valid, or

are significantly inaccurate. More than 1.8 million people

remain listed as voters, even though they are currently dead.

Something like 2.75 million people have registrations in more

than one state.

In this age, when we can sync all our personal contacts

instantaneously on all our devices—smart phone, tablet and

desktop computer—surely we can find a way to make certain

that everybody who legally can be registered actually is

registered, and the voter rolls are clean, accurate, and up

to date. But that’s only the beginning. Then we have to

find a way to ensure that the act of voting itself is not a

Herculean task—long lines, unnecessary complications,

and miscounted votes. It must be not just a civic duty but

a civic joy, a real and widespread participation in the way

we are governed.

. 16 .

Though polling has shown some division on the question

of whether voting is a right or a privilege, it’s also

clear that convenience is important to voters. In the

message-testing work done by the Brennan Center for Justice,

the Advancement Project and Lake Research Partners, one of the

choices polled was the question of whether one option, early voting,

is simply an expensive privilege, out of keeping with the duty of

voters to show up on Election Day, or whether it’s important that

government make an investment in early voting. The results were

clear: 64 percent opted for investment in early voting, and only 28

percent insisted that it’s an expensive privilege.

EARLY VOTING

There’s no question that early voting—both by mail and in

person—is a rising phenomenon. One of the leading scholars

on American voting patterns, Professor Michael McDonald

of the United States Elections Project at George Mason

University in Virginia, testified about that growth before the

United States Senate Rules and Administration Committee

in 2010, describing a clear pattern of growth.

“Historical studies in 1936 and 1960 found that early

voting increased from 2 percent to 5 percent of all ballots

counted in these elections,” McDonald testified. “Recent

aggregate statistics indicate that early voting increased from

at least 8 percent in 1992, 8 percent in 1994, 11 percent in

1996, 12 percent in 1998, 16 percent in 2000, 16 percent in

2002, 23 percent in 2004, to 31 percent or at least 40.6 mil-

lion voters in 2008.”

In that same testimony, McDonald reviewed scholarly

studies about the impact of early voting on turnout. “The

authors of perhaps the most comprehensive and recent of

these studies find that no-excuse absentee balloting increases

long-run turnout rates by an average of 3 percentage points

and that no-excuse in-person early voting increases long-run

turnout rates by an equal average of 3 percentage points,” he

testified. It’s not a huge increase, but for McDonald at least,

it’s worth pursuing.

“I’m in favor of early voting as an option,” he said in an

interview. But he didn’t dodge the costs issue. “There are

going to be polling locations open over a long period of

time. Someone has to bear the cost of having those places

open. And campaigns, when you have a large number of

people voting early, are going to have to change their strategies.”

The attitude of incumbents and the impact of any changes in

voting patterns is always a gritty reality below the theoretical

discussion of turnout rates and greater civic engagement.

“The people who make the decision about how we vote are

the same people who have skin in the game,” said Judith

A. Browne Dianis of the Advancement Project. For them,

she said, early voting

can be “a scary thing,

because that doesn’t

mean that that last

speech on the Monday

before Election Day is

the clincher for you.

Many people have

already voted. So it

flips how they have

to do campaigning.”

Actually, as participants at a Common Cause convening on

best election practices pointed out, early voting can work to

the advantage of all the parties. As early voters cast their

ballots, election officials can provide parties with daily lists

of who has voted. This enables the parties to make their

campaigning more efficient, by ignoring further appeals

to those who have already voted, and intensifying their

get-out-the-vote efforts among those who have not yet gone

to the polls. For the early voters themselves, there’s another

advantage: Once they have voted, and the parties know

. 17 .

BETTER BALLOTING

THERE’S NO QUESTION THAT EARLY VOTING—BOTH BY MAIL AND IN PERSON—IS A RISING PHENOMENON.

. 18 .

they have voted, they can expect to get fewer robocalls and

mailings in the final days of the election cycle.

Some form of early voting—ranging from no-excuse

absentee balloting to in-person early voting—is available in

more than 30 states and the District of Columbia. And in

New York in 2013, it had a chance to be an important

conversation, partly because it could have been viewed as a

possible response to the polling place disruption caused by

superstorm Sandy. In that frame, the theory went, it might

have been easier for legislators who would normally be

hesitant about early voting to overcome their objections.

The argument is this: If more people had voted early, that

might have relieved pressure on Election Day itself. The

early voting bill sponsored by Assembly Speaker Sheldon

Silver (A-689) would permit voting 14 days prior to a

general election. Sandy hit New York on October 29, a little

more than a week before Election Day, November 6. So, if

Silver’s bill had been the law, voters would have had nearly

a week to cast their ballots before the storm roared in.

There is no way of knowing for certain whether the

availability of early voting in 2012 would actually have

increased turnout. But the memo supporting Silver’s bill

used turnout as part of the rationale. It pointed to the

lamentable rate in New York in 2012, which put our state

near the bottom of the heap, just ahead of Hawaii and West

Virginia. Then it argued: “Enhancing access to voting is

perhaps the most effective way to raise the voter turnout

rate in New York State. Early voting does just that.” As

McDonald points out, the scholarly studies show the turnout

gain is modest. So, at the theoretical level, the debate in

New York will likely focus on a cost-versus-turnout-gain

analysis. At the more visceral level of incumbent protection,

it’s an issue that will be decided, as Browne Dianis put it, by

people with “skin in the game,” elected legislators who fear

any innovation that makes it more difficult for them to

retain their jobs. As the 2013 session played out, the

Assembly passed Silver’s early voting bill, but the Senate did

not act.

It’s also worth remembering that, even in states where early

voting is available, voters can experience long lines, and

other balloting anomalies can happen. Browne Dianis, for

example, experienced a seven-hour wait to vote in Prince

George’s County, Maryland. “In 2008, I voted by absentee,

and for some reason, I totally forgot to get an absentee

ballot,” she said. “I pulled into the polling place, and I saw

the line. It’s this huge library, and the line wrapped around

the library, which was really like four blocks long. I looked

at the line—I had my 10-year-old with me—and I said,

‘Wow! Look at that line. I may have to come back tomorrow.’

And then she said to me, ‘Mommy, no, let’s go, let’s get

your vote in.’ So I couldn’t then drive off, because she had

seen me on TV like once a week, talking about voter

suppression. So I was like, ‘OK, let’s get in the line.’ I did

not expect that that line would be a seven-hour line. And it

was the Sunday before Sandy hit. So I did know that I really

needed to stand in the line, because who knew what was

going to happen the next day.”

The possibility of long lines during early voting may well

depend on the distribution of polling sites in each county.

The Silver bill proposed a minimum of five sites per

county. That may be enough in densely populated counties

with a smaller geographic area. But would it be enough in

geographically spread out counties?

“This is the first time that NYPIRG has endorsed the idea

of early voting,” said Neal Rosenstein, NYPIRG’s veteran

government reform coordinator. But the number of polling

places remains a vexing concern. “It said a minimum of five,

but they’re leaving it up to individual boards’ discretion. So

you’re setting up a system where you could be enshrining in

law what could be very disenfranchising provisions.”

The answer may be a statewide standard. “So, for example,

one of the ones which I was suggesting is one early voting

site per Assembly district,” Rosenstein said. “That might

get out of hand. Or maybe you’ll end up with one for every

two ADs, or one for every Senate district. But something

which isn’t based just on a county, which recognizes that, if

we just do it based on a minimum number per county, we

could end up with really jammed sites.”

Another problem Rosenstein cited is that the original Silver

bill would have allowed the use of DRE (direct-recording

electronic) voting machines at the early voting sites. Groups

such as NYPIRG and others concerned about voting

rights had rejected the use of those ATM-like touch-screen

machines, in favor of optical scan voting machines, which

count paper ballots fed directly into the machine by voters.

The criticism of DRE machines has been that they are more

vulnerable to hacking. Silver’s original proposal would have

given them a foot in the door of the polling place.

Rosenstein acknowledges the appeal of DREs in an early

voting setting, where voters from multiple election districts

come to a limited number of early voting sites. Without

the use of DREs, the local boards of election would have to

store paper ballots for multiple election districts. Just take

Suffolk County as an example. It’s geographically vast. Just

one of its ten towns, Brookhaven, is larger than all of Nassau

County. In an even-numbered year, under the current

district maps, Suffolk voters would be voting in 12 Assembly

districts, 5 Senate districts and 3 congressional districts. If

early voting were set up in just a few sites across this vast

county, the Suffolk County Board of Elections would have to

make sure those sites had paper ballots available for voters

from all those districts. With DREs, all those different

ballots could be electronically stored inside the machines in

advance and called up electronically for each voter.

“Just because we have huge counties, and just because we

have so many different ballot designs within a single county,”

Rosenstein said, “the DRE is a very attractive nuisance.”

There is a less expensive alternative to printing out large

numbers of paper ballots in advance. Maggie Toulouse

Oliver, the clerk of Bernalillo County—the most populous

county in New Mexico—talked about that alternative at the

Common Cause best practices convening. The risk of printing

so many ballots in advance is that unused ballots will go to

waste. “Literally, I shredded $1 million worth of ballots in

the primary election of 2008,” Oliver said. So, for the 2010

election, her county switched from print-in-advance to print-

on-demand, using rented equipment, and saved $800,000.

Speaker Silver is not the only state leader to have sounded

off on early voting. Though Gov. Andrew M. Cuomo did

not mention it in the spoken version of his State of the State

speech, he devoted some space to the idea in “NY Rising,”

the book that serves as an expanded version of the State of

the State.

On the question of how long the early voting period should

be, Silver’s bill proposed 14 days. Cuomo’s suggestion: “New

York should create an early voting system that is at least

one week long and includes the weekend before a scheduled

Election Day. Longer periods of early voting have not shown

to be correlated to greater voter turnout, and New York

should strike a balance that optimizes convenience for voters

without creating unnecessary administrative burdens.”

The governor’s discussion of the issue also raised the question

of the number of early voting sites as crucial. “It is essential

to have a sufficient number of accessible voting polling locations

be made available not only to increase the number of early

voters, but to accommodate the needs of voters who do not

have ready access to transportation and who have limiting

work schedules,” the governor argued.

. 19 .

. 20 .

Despite all the questions and concerns about the specifics,

Common Cause saw it as a potential short-term win that

voting rights advocates couldn’t afford to spurn. And

NYPIRG backed the idea too, with the right bill language.

“It’s not boosting participation that much, from everything

we’ve seen,” Rosenstein said. “Despite that, it’s a way to

address these horrible conditions at poll sites.”

In the end, the State Legislature did not adopt early voting

in 2013, a year that had seemed so promising. But it’s an

idea that is unlikely to go away soon.

“IT IS ESSENTIAL TO HAVE A SUFFICIENT NUMBER OF ACCESSIBLE VOTING POLLING LOCATIONS BE MADE AVAILABLE NOT ONLY TO INCREASE THE NUMBER OF EARLY VOTERS, BUT TO ACCOMMODATE THE NEEDS OF VOTERS WHO DO NOT HAVE READY ACCESS TO TRANSPORTATION AND WHO HAVE LIMITING WORK SCHEDULES,” THE GOVERNOR ARGUED.

The whole question of proper locations for early voting

sites suggests at least a brief look at “vote centers,” a

permanent system of voting that essentially does away

with local polling places and replaces them with a much smaller

number of vote centers. It’s not likely to happen in the near future

in New York, for a variety of political reasons. But it’s worthy of

examination at the same time as we discuss the proper number and

location of early voting polling places.

“A vote center is like a super polling location, where anyone within

the jurisdiction can go and vote on Election Day,” said Michael

McDonald of George Mason University, who has studied them and

likes the idea. “People are no longer tied to their school or whatever

is their normal polling site.”

The core of the vote center idea is convenience for voters, but it has

advantages for election administrators as well. “They locate

the vote centers in high-traffic shopping centers, for example,”

McDonald said. “People go in and vote and then go in to do their

grocery shopping. So it’s a win for the voters, because now you

made voting a far more convenient part of their day. But it’s also a

win for merchants. They actually like these vote centers, because

now you’ve got foot traffic that’s coming into their stores.”

It reduces election costs, because a county doesn’t have to staff as

many polling places or spend as much money on equipment. Part

of the savings can be spent on higher pay and better training for

poll workers. The better the poll workers, the better the experience

for voters. “So, you’ve got higher turnout, cost savings, you’ve got

merchants love it, voters love it,” McDonald said. “You’ve hardened

your infrastructure, so that if one polling location goes down, you

have several backups in place.”

Are the vote centers a flash in the pan, or the next big thing?

Actually, they’re part of a transition to something else, said

another scholar, Robert Stein, a political science professor at

Rice University in Texas.

“I believe vote centers, like early voting, are probably a transition

mode of voting between Election Day precinct voting and remote/

Internet voting,” Stein said in a detailed email. “The transition may

be years—if not decades—away, but it will happen. Close to 40

percent of the vote for president in 2012 was cast before Election

Day, either in-person or by mail. Voters like this convenience and

won’t give it up.

“Many of the features that are desirable about early voting

—choosing where to vote and voting at locations more central to

where one works, shops, et cetera, and locations that are accessible

to parking and short waits—can be afforded to Election Day voters

by using vote centers. Moreover, there is evidence, albeit not yet

published, that vote centers reduce both the cost of conducting

elections and what some call ‘voter fraud,’ but I prefer to term

errant voting, that is, persons voting in the wrong jurisdiction or

voting place or who have insufficient identification.

“I have thought that vote centers might be more suitable for

suburban and some exurban areas, but I have seen evidence of their

effectiveness—that is, voter satisfaction, high turnout, and lower

costs—in reasonably dense urban settings such as Albuquerque,

New Mexico, and Austin, Texas.”

Stein has consulted with Indianapolis, Indiana, and other jurisdictions

about adopting vote centers. He believes that economics will

play a significant role in future decisions by municipalities to

opt for them. As a result of the Help America Vote Act, the federal

government paid for the purchase of new voting systems across the

country. The next time local jurisdictions buy new machines, they

will almost certainly have to bear the cost all by themselves—and

today’s whiz-bang devices won’t last forever.

“As these machines age, their replacement may prove too

costly to support a large number of Election Day precinct

voting places,” Stein concluded. “The opportunity to use a

smaller number of large vote centers with optically scanned

paper ballots may be something local elections officials opt

for, rather than buying more expensive voting equipment.”

. 21 .

VOTE CENTERS

. 22 .

One jurisdiction that has already embraced vote centers

with zeal is Larimer County, Colorado. It has a population of

300,000 and an area of 2,700 square miles, running from

the Wyoming border south to 20 miles north of Denver.

Its largest city is Fort Collins.

The architect of the idea was Scott Doyle, an environmental

engineer who left the power industry in 2000 to become

deputy to the clerk and recorder in Larimer. The clerk

and recorder’s office has a wide swath of functions, including

issuing and recording

marriage licenses,

recording real estate

transactions, issuing

liquor licenses,

operating the motor

vehicle offices—and

everything involving

voting, including

registration and

conducting all

primary, general and

county elections,

and, under contract,

municipal and school

district elections.

When he joined the clerk’s office, Doyle noticed voters

showing up at polling places and not knowing where to vote.

So he began to nudge his boss, the clerk, to do something

along the lines of vote centers. She had no interest in change,

but she did encourage Doyle to run for clerk himself. He ran

and won. “The minute I got to be clerk, I said, ‘We’re going

to do vote centers,’ ” Doyle recalled.

Withstanding an initial blast of media criticism, Doyle

forged ahead, starting in 2003. Larimer County had 181

precincts. To replace them, Doyle began setting up vote

centers. There were 33 in the 2008 presidential year, 24 in

2012. In the process, the old system of going to the local

precincts to vote has disappeared. When Doyle first went to

work as a deputy, what had bothered him was noticing voters

struggling with knowing where to vote. Now, with vote

centers, there is no wrong door. Any voter in Larimer can go

to any vote center and be issued a ballot that lists the specific

candidates that they’d find on a ballot if they were voting in

a precinct a block from home.

“We have state races or federal races. We’ve got dirt districts.

All that means is that there’s a particular ballot style,” Doyle

said. In fact, there can potentially be as many as 250 different

ballot styles. “We make each one of those ballot styles available

in each of those vote centers.”

At first glance, it might look as if the necessity of stocking

so many different ballot styles at each vote center would be

so costly that it might outweigh the cost reductions that vote

centers make possible, in comparison to the larger number

of local polling places in the past. But Doyle said the county

has evolved an efficient system of making sure there’s an

adequate supply of ballots and minimizing any potential waste.

“It is true that we have extra ballots, but here is how we

handled it,” Doyle said. “A vote center in a specific location

would have all the style ballots for the entire county.

However, the vote center would have the larger number of

ballots for the nearby precincts, while only having a small

amount for the far-away precincts. As little as five ballots in

some instances. As well, we have placed ballot-on-demand

printers in critical locations throughout the county.

“Another contingency is that, as voting occurs, we know

what styles are being used at each center, due to having the

electronic poll book centrally located, where we have a tech

ANY VOTER IN LARIMER CAN GO TO ANY VOTE CENTER AND BE ISSUED A BALLOT THAT LISTS THE SPECIFIC CANDIDATES THAT THEY’D FIND ON A BALLOT IF THEY WERE VOTING IN A PRECINCT A BLOCK FROM HOME.

monitoring. In many cases we would know it’s time to

restock before center judges. Runners would then resupply

ballots as needed. We also knew from experience how many

voters historically voted what ballots at what location. We

worked with our print vendor and had ballots printed,

sorted by style, with a specific and varying number of each

style packaged and delivered by center.

“So, did we have extra ballots at the end of the day? Sure,

but not as many as one might expect.”

As to the vote centers themselves, the type of location varies

throughout the county, depending on population density.

In tiny Red Feather Lakes, 50 miles from busy Fort Collins

and surrounded by the huge Roosevelt National Forest, a

small library or firehouse is an appropriate vote center. “In

town here, where we’re going to see several thousand voters,

we look for 2,500 square feet,” Doyle said. “So that means

government buildings, megachurches, strip malls.” Colorado

State University, not far from the clerk’s office, regularly

donates a ballroom for use throughout the election season,

including early voting and Election Day itself.

In Larimer, the question of the proper location and

distribution of the vote centers did arise—not from the

voters, but from political parties. “I don’t compromise

any of that stuff,” Doyle said. “I go by the numbers, not

by the affiliation.”

In addition to vote centers, Larimer uses another voter-friendly

device. “We call it permanent mail voter,” said Doyle, now

retired. “You request it once and you’re a permanent mail

voter. They go out 18 to 22 days in advance.”

Larimer’s turnout statistics for the 2008 presidential election

seem to show that the combination of the two concepts is

working. Out of 181,832 active voters, a total of 167,292

actually turned out. But far more of them turned out by mail

than in person at the 33 vote centers the county used that year.

The total turnout at the vote centers was 25,130. So it’s pretty

clear that getting a ballot delivered by mail to the home every

year beats even the convenience of the no-wrong-door vote

centers. One of the leading examples of the vote-by-mail

paradigm is the State of Oregon, where voters approved the

idea by referendum in 1998.

. 23 .

. 24 .

In too many places, voters have had to wait in long lines to cast their vote.

. 25 .

The voters of Oregon have embraced a way of voting

that eliminates the need for local polling places and

relies entirely on mailed ballots. “We were the first

state in the nation to go all vote-by-mail,” said Josh Goldberg,

policy assistant to current Oregon Secretary of State Kate Brown.

But getting there wasn’t instantaneous or easy.

The movement to change the way Oregonians vote can be traced to

a casual conversation in the Oregon capitol building and to a tiny

election in one small corner of the state, at the start of the eighties.

Linn County Clerk Del Riley was sitting in the capitol’s coffee

shop with State Senator John Powell, and the subject of sample

ballots came up, as a way of making it easier for voters to

understand what was at stake in an election. “ ‘Why don’t you guys

send out sample ballots by mail?’ ” Riley recalls Powell asking. “I

thought, ‘Why go to all that expense of sample ballots? Why not

just send the ballots?’ ” So he talked to three other county clerks

about his idea. “They were not interested. I still let it be known in

our clerks’ association that I was still very, very interested.”

At about the same time, Oregon Secretary of State Norma Paulus

was also keenly interested in improving voter turnout. A key

factor in that was an astonishingly low turnout in an election in one

Linn County school district. District residents were asked to vote

on approving a fiscal issue, and a grand total of two people voted.

The proposal was approved, 2-0.

“So, when Secretary Paulus saw the election results, that a $2 million

bond measure had passed, and only two people had participated,

one of her greatest fears as secretary of state had almost come true,”

Goldberg said. “Her greatest fear was that an election would be

held, and no one would show up. I mean, it’s a rather amazing

story.” And Paulus told it often, even including it prominently in

the voters’ guide that her office published.

The interest of Paulus and Riley in mail voting intersected

when her office brought to his attention an historic vote-by-mail

election about to take place in San Diego, on May 6, 1981.

“They were sending a team down themselves, and they asked me

if I would be interested in going,” Riley recalled. “We took a

vacation, my wife and I, and off we went.” In addition to Riley, the

delegation from Oregon included two state representatives, a top

aide to Paulus, and the county clerk from Multnomah County.

In San Diego, Riley asked for and received permission from local

election officials to actually work in the vote-by-mail election

at multiple levels. “That’s where I really got the feel for that

thing,” Riley said. The election attracted national attention,

including a crew from CBS News, who interviewed Riley and

featured his comments on their national report. At the time, it was

the largest vote-by-mail election ever held in the nation. The issue

was whether to authorize bonds to build a new convention center.

The voters rejected the bonds, but they seemed to embrace the

method of casting their ballot. In all, 261,433 voters filed ballots

by mail, a record turnout for San Diego. Despite the huge turnout,

the election only cost $328,000, about half of the $600,000 that a

regular polling place election would have cost.

At the time of that San Diego vote, Gary Greenhalgh, an official at

the Federal Elections Commission, was quoted as saying: “The idea

has caught on. San Diego is going to be copied. It may take time,

but it’s going to be copied.”

In Linn County, Riley recalls, the first pilot vote-by-mail election,

in a school district, produced a 77 percent turnout. “Then the cry

was, remember the election where we only had two people vote,”

he said. But the idea didn’t even have unanimous support

among his staff. One of them, Steve Druckenmiller, recalls

discussing vote-by-mail with Riley back then. “I was outraged

when Del did the first vote-by-mail,” said Druckenmiller, who

succeeded Riley as county clerk in 1987. “I thought this was going

to be nothing but corruption. I said, ‘It stinks, sir,’ and he still

hired me.”

VOTE-BY-MAIL

In Multnomah County, in a vote-by-mail election on ballot issues,

including term limits, voters set a record for a special election:

More than 55 percent of the 289,680 voters actually sent in their

mail ballots.

Despite the early successes of vote-by-mail in limited local elections,

it took years for the idea to take hold statewide.

At the end of the eighties, there was an effort to pass a bill extending

the vote-by-mail law beyond special elections to both primary and

general elections. One of those who voted against it was a young

Democrat from Portland, a former journalist, State Rep. Phil

Keisling. Looking back on it now, he recalls that his vote was based

on “just sheer sentimentality,” a devotion to autumn rituals: the

crunch of leaves underfoot on the way to the polls, the chance to

chat with neighbors. But in the nineties, after he became Oregon’s

secretary of state, he became not only a proponent of vote by

mail, but a fierce advocate.

The crucial year was 1995.

“In June 1995, we got the legislature to pass a vote-by-mail

bill, only to see it vetoed by our Democratic governor,” Keisling

recalled. “The Democratic National Committee was lobbying

to get it vetoed. They saw it as a Republican effort.” President

Bill Clinton is even reported to have weighed in against it. In

the end, Keisling suspected, Gov. John Kitzhaber’s veto was rooted

in some of the same crunch-of-autumn-leaves sentimentality

that had motivated Keisling to vote against a vote-by-mail bill

as a legislator.

That September, a flash of political lightning shed a whole new

light on vote-by-mail. After months of stories about sexual

harassment allegations against him, Oregon Sen. Bob Packwood

resigned. That set the stage for a special election. The

vote-by-mail law, as it then existed, gave Keisling the power

to push for the special election to be held by mail. The result

was the first balloting in congressional history held entirely by

mail, and the first opportunity for Oregonians to vote that way for

a statewide candidate.

The final election, between Rep. Ron Wyden, a liberal Democrat,

and Gordon Smith, a conservative Republican businessman,

allowed Oregonians to vote by mail between January 9 and January 30.

The result was a narrow win for Wyden and an overwhelming

turnout—better than 65 percent of registered voters—that set a

record for a special election in Oregon. The vote-by-mail also saved

the state about $1 million, compared to what a normal election

would have cost.

Then, in 1998, Keisling and other supporters of broadening the

vote-by-mail law managed to get a vote-by-mail question on

the ballot. By then, Oregonians were pretty well accustomed to

limited vote-by-mail, one way or another. “In 1998, when we were

actively seeking signatures to get it on the ballot, we’d reached the

point where 60 percent of the votes were coming in by absentee

ballots,” Keisling said. “Poll workers were about as lonely as the

Maytag repair people.”

So 70 percent of the voters approved vote-by-mail, which effectively

did away with the system of local polling places and made Oregon

a fully vote-by-mail state. It had taken almost two decades from

the germination of the idea in the minds of Del Riley and Norma

Paulus. But now it was the law of the state. And Keisling,

who once voted against widening vote-by-mail in the Oregon

legislature, can’t restrain his enthusiasm for it.

“Election reforms are seen through highly partisan lenses. ‘Is this

good for my tribe or bad for my tribe?’ ” said Keisling, who is

now the director of the Center for Public Service in the Mark O.

Hatfield School of Government at Portland State University. “The

reason I think it has really taken hold in Oregon is we were able to

get people on both sides to say, ‘This is about me and my right to

vote, and my being able to cast a quality vote, an informed vote.’ ”

. 26 .

“It saves money,” Keisling said. “What people will tell you is,

‘I can vote a more informed ballot, I can sit down. I can go to the

Internet.’ They can sit at their kitchen and dining room table and

look at it.”

Oregon now has no voting machines, aside from a few for voters

with disabilities. About 2.2 million voters receive ballots in the

mail 15 days before the election. That expectation, that citizens

are entitled to have the government deliver their ballots to them,

is the feature of the system that Keisling now emphasizes. He calls

it “universal ballot delivery,” more than vote-by-mail. The vast

majority of voters send their ballots back by mail. Some choose to

drop them off in person at a county elections office.

The state has a robust system for validating the authenticity

of vote-by-mail ballots. “We collect signatures from the voter

registration card (or the DMV if they register online) and compare

every single signature to every ballot,” said Josh Goldberg, the

current secretary of state’s policy assistant. “The same firm

that trains the Oregon State Police in identity theft and fraud also

trains our elections workers.”

Goldberg points out that those who administer Oregon’s vote-by-

mail ballots rely on a central voter registration database. “We need

to be able to confirm the mailing address and ensure that each

person receives one ballot and votes once,” Goldberg said. “The

way this works in Oregon is through a bar code. Each ballot has

a unique bar code, so we can confirm who each ballot was sent to.

We compare it with the signature we have on file.”

Still, some have raised a concern about “ballot parties,” mass voting

directed by interest groups. “They raise the specter of the union

leaders calling people into the union hall and saying, ‘Bring your

ballot, and I’m going to tell you how to vote,’ ” Keisling said. The

same suspicion can be voiced about other entities, such as corporations

or nursing homes. “In my nine years as secretary of state, I heard

a lot of these urban myths, but I didn’t get a single complaint.”

There are also concerns that spousal abuse could affect voting.

“They’re easy to allege, and you can’t disprove a negative,” Keisling

said, but he can’t recall a case where something like this has even

been alleged. For Del Riley, the theoretical threat of ballot parties is

no more than “a bunch of baloney.” Goldberg simply calls it a myth.

What has been real about vote-by-mail is sharply higher voter

participation. We’ve already cited the vote in one school district

where a grand total of two persons turned out to vote on a fiscal

issue, and it passed. In another district, Riley said, residents voted

five different times on a tax levy. In the first four, voters went to

their precincts to cast their ballots, but many stayed home. So the

turnout was light. And in those first four elections, the levy went

down to defeat. In the final election of the five, the method of

balloting was vote-by-mail. It produced a 92 percent turnout, and

the voters approved the levy. Nobody likes taxes, but there’s little

question that a tax levy approved by 92 percent of the voters in one

district, with the aid of vote-by-mail, is distinctly more democratic

than spending approved by only two voters at a single polling place

in another district.

The current clerk of Linn County, who deeply distrusted vote-

by-mail when he was joining Riley’s staff, looks back now at the

system that Riley pioneered two decades ago and sees a historic

innovation. “He changed the face of Oregon elections for the better,”

Steve Druckenmiller declared, happily admitting the error of his

original skepticism. “When I am wrong,” he said, “I am wrong really

big.” In March 2013, he completed his 116th vote-by-mail election,

and he said that’s “the most conducted by anyone anywhere.”

Still, it’s not a perfect system in Oregon. “Oregon has 25 percent of

its population who don’t even register,” Keisling said. “In Oregon,

we’ve got to do a better job of understanding how many people

aren’t registering.” And some regret the loss of privacy involved

—and the accompanying risk of coercion—but not enough to give

up a form of voting that they have come to like.

. 27 .

Miles Rapoport of Demos, who served as secretary of state in

Connecticut, has shared his concerns with Keisling. “Vote-by-mail

is obviously a wonderful convenience for people who have already

registered and are at the same address,” Rapoport said. “But that’s

a partial and skewed fraction of the eligible voters. Two classes of

people it doesn’t help: people not registered and people who move

frequently.” His own experience with frequent movers dates back

to his days going from door to door. “There were plenty of doors that

don’t have names or mailboxes.” But Keisling points out that Oregon

has developed a system for forwarding bounced-back ballots to voters

who have moved—in time for the election. Rapoport also argued

for a broader effort on registration. “What I said to Phil is that

the only thing you can do is to accompany it with an early voting

period and have same-day registration,” Rapoport said. “He sort

of generally agreed.”

Though same-day registration is still over the horizon, current

Oregon Secretary of State Kate Brown has championed legislation

that would modernize the voter registration system in another way.

Under that bill, whenever a state agency, such as the DMV, receives

three pieces of information—proof of citizenship, residency, and age

information—as well as a digital copy of a signature, the secretary

of state will automatically register that person to vote and send

a postcard informing the citizen how to affiliate with a party. If

people prefer to opt out, they can simply sign the postage-paid

card and send it back in. Brown anticipates that this would register

approximately 500,000 Oregonians who are eligible but not yet

registered to vote.

Those who actually are registered and regularly using vote-by-mail

in Oregon are happy with their system. But it hasn’t gotten as

much traction outside the state as Keisling would have liked.

“No one has followed our lead, other than Washington—and now

Colorado,” Keisling said. “In some states, it has come close but has

been rejected. Republicans understand why they really hate universal

ballot delivery. Democrats haven’t figured out why they ought to

be champions of it. This fascinates me.”

But vote-by-mail has taken another step forward. In May 2013,

Gov. John Hickenlooper signed the Colorado Voter Access

and Modernized Elections Act, which provides for mailing ballots

to all voters. They can either send the ballots back by mail or return

them to vote centers. It also allows for Election Day registration.

In Oregon, Secretary of State Kate Brown—like her predecessor,

Bill Bradbury, and Keisling before him—is a strong believer in

vote-by-mail. “Actually, we’re in conversations with other states

now, like Hawaii, who are considering vote-by-mail,” said Goldberg,

her policy assistant. Brown wrote a letter in support of the idea in

2011, when the Tucson City Council was considering moving from

a hybrid system to complete vote-by-mail. The council adopted

the idea, and the Arizona city held its first election under the new

system later that year.

The prospects for vote-by-mail in New York are not good. First,

there’s the language in the constitution describing the conditions

for getting an absentee ballot. It can be argued that vote-by-mail

is, in effect, excuse-free absentee ballot voting and that adopting

it here would require a constitutional amendment to remove

the conditions. But Druckenmiller said that isn’t necessarily so.

Oregon does have absentee ballots, which can be mailed to voters

earlier than the normal mailed ballots go out, but he doesn’t

consider the system as a whole an absentee ballot system.

So he suspects that, if New York lawmakers crafted vote-

by-mail legislation the right way, it could be drawn so as not to

conflict with our state constitution.

Another obstacle to vote-by-mail might well be political leaders,

who enjoy giving out poll worker jobs as minor plums. Vote-

by-mail clearly poses a threat to this source of patronage, since it

drastically reduces or eliminates polling places. Still, as Robert

Stein of Rice University said, voters like their convenience. That

makes it an idea worth keeping an eye on for the long term.

. 28 .

. 29 .

Voting rights advocates clearly want people to be able

to take advantage of the speed and accessibility of the

Internet for such purposes as keeping their registration

up to date and checking on the location of their polling place. So

it would seem logical that we’d also want people to be able to use

the Internet for the ultimate voting purpose: returning a completed

ballot to election officials.

Not so fast.

Two national voting-rights organizations, Common Cause and

Verified Voting, are working hard to stop the march toward online

voting, because they believe the Internet is not yet a secure enough

environment to make sure that votes get counted properly, without

any possibility of elections being hijacked by tampering.

The simple-sounding argument in favor of online voting is this:

“If we can bank online, we should be able to vote online, shouldn’t

we?” Actually, no. Banking and voting are fundamentally different.

For bank customers, online banking undeniably provides

convenience—the opportunity to do a transaction as easily

from a golf course as from a bank building. For the larcenously

computer-savvy among us, however, electronic banking provides

a wide-open opportunity for electronic fraud. Banks and online

retailers don’t like losing money to cyber thieves, but they

pretty much expect a certain amount of this theft as a cost of

doing business. In other words, banking is a function of our society

that can live with insecure systems. Voting is not. There has to be

absolutely zero tolerance for electronically manipulated elections.

“If our voting systems fail us, voters lose heart in the whole

process,” said Pamela Smith, president of Verified Voting, a

nonpartisan, nonprofit organization whose aim is to safeguard

elections in our digital age. “Here’s the thing: Voting just has

to work.”

But there’s pretty good evidence that electronic voting won’t

work. Edward Felten, director of Princeton University’s Center for

Information Technology Policy, cited a 2010 experience in the

city of Washington, DC. The district’s Board of Elections and

Ethics wanted to try out electronic voting for overseas voters. To its

credit, the board decided to start with a mock election, essentially

inviting hackers to do their worst, in an election that would not

count. A former student of Felten, J. Alex Halderman, an

assistant professor of electrical engineering and computer

science at the University of Michigan in Ann Arbor, took up

the challenge.

It didn’t take long for Halderman and his team to subvert that

election. “Within 48 hours of the system going live, we had gained

near complete control of the election server,” said a scholarly paper

that Halderman and three associates wrote. “We successfully

changed every vote and revealed almost every secret ballot. Election

officials did not detect our intrusion for nearly two business days—

and might have remained unaware for far longer had we not

deliberately left a prominent clue.” The clue was “The Victors,”

the University of Michigan’s fight song, playing on the system’s

confirmation page. It was, in effect, an anthem for a stolen election.

Happily, that election didn’t count. But the experience led

Halderman to conclude that trying to conduct a real election

online—now or at any time in the near future—would be a

perilous enterprise.

“It will probably be decades, if ever, before we can program

voting safely over the Internet,” Halderman said. For a fuller idea

of Halderman’s views, see his online course, “Securing Digital

Democracy,” at https://www.coursera.org/course/digitaldemocracy.

ONLINE VOTING

Despite the dangers, 31 states have adopted some sort of

electronic voting, for overseas and military voters. “The vast

majority of those 31 states merely allow for ballot return by

email or fax under some circumstances,” Halderman said.

“Either method raises serious security and privacy concerns,

but I think those dangers are somewhat less severe than in

the case of full-blown, website-based Internet voting.”

The Department of Defense’s Federal Voting Assistance

Program has been a major factor in that expansion. The

FVAP wants to improve the ability of military voters to

cast their ballots—a laudable goal. Unfortunately, the

agency chose to reach that goal by nudging states toward

Internet voting, and sweetening the deal by distributing $50

million to buy the systems. That gives Internet voting

a virtual DoD seal of approval, leading proponents of this

method to argue: “If it weren’t safe, they wouldn’t do it.”

Of course, vendors are eager to sell these systems to the

states, and many in the public want Internet voting, based

in part on the false and dangerous banking-voting analogy.

So, even though the FVAP has backed down to some extent,

the drive for Internet

voting is still alive.

Despite the problems,

the understandable

desire to “help the

troops” and the

aggressive marketing

of vendors keep

it breathing.

To protect public

confidence in our

voting system,

advocates are going to

have to find a way to

slow down this trend

until someone actually devises a truly secure method of

delivering completed ballots on the Internet. As Halderman’s

hijacking of an entire election in Washington demonstrated,

that day is still a long way off.

. 30 .

VENDORS ARE EAGER TO SELL THESE SYSTEMS TO THE STATES, AND MANY IN THE PUBLIC WANT INTERNET VOTING, BASED IN PART ON THE FALSE AND DANGEROUS BANKING-VOTING ANALOGY.

. 31 .

Whatever Albany may or may not eventually agree to

do about expanding voter participation, there are

things that the counties can do to make the voting

experience better. Here are a few of the items that should be on a

county-level agenda.

SETTING PERFORMANCE BENCHMARKS. In the New York City Council,

Councilmember Brad Lander has sponsored legislation that

would require the New York City Board of Elections to make annual

reports on its performance. The reports would be in the framework

of the Mayor’s Management Report, a tool mandated by the City

Charter to measure the effectiveness of city agencies. The Board of

Elections has balked at this accountability measure, maintaining

that it is a state agency, not answerable to the mayor, but only to

the City Council. But Section 3-212 of the New York State Election

Law provides: “Each board of elections shall make an annual report

of its affairs and proceedings to its local legislative body once every

twelve months and no later than the last day of January in any

year.” There should be room within that provision for local

legislative bodies, such as the New York City Council and county

legislatures across the state, to specify the metrics they want the

required annual report to contain.

BETTER TRAINING FOR POLL WORKERS. In the City of New York,

Citizens Union argues, “The courses for poll worker training

rely on an instructor largely reading for six straight hours from

an overly lengthy 200-page manual. The City Board should hire

educational professionals, create an interactive online course

that enables prospective poll workers to go at their own pace

through the manual, with intermittent testing to ensure compre-

hension before proceeding to the next chapter.” Clearly, the way

to go is to use a request for proposals process to identify and hire

highly competent professional trainers, with no connection to the

political parties, ask them to analyze the tasks of poll workers and

produce suitable training and testing to make sure workers can

accomplish those tasks. The testing needs to be fair and rigorous,

screening out those who don’t have the aptitude for the work. Once

poll workers are better trained and better able to run elections

smoothly, the public won’t oppose paying them better, which will

further enhance the quality of those willing to do this work.

BETTER POLLING PLACE ORGANIZATION. The bottlenecks that cause

delays often involve the entry to the polling place, the point where

voters go to learn where to find their specific election district within

the larger polling place.

BETTER VOTER

NOTIFICATION.

If boards of elections

make a stronger effort

to collect voters’ email

addresses, on registration

forms and through

a variety of outreach

methods, they will be

better able to keep voters

aware. The boards could

send out routine email

reminders about the date

and voting times of an

approaching election. In

the case of an emergency, such as superstorm Sandy, the boards could

use email to notify voters of any change in the location where they

will be voting. For those voters who don’t have email, the boards

should make a similar effort to acquire their phone numbers, so that

boards can call them with changes and reminders.

COUNTY AGENDA

ONCE POLL WORKERS ARE BETTER TRAINED AND BETTER ABLE TO RUN ELECTIONS SMOOTHLY, THE PUBLIC WON’T OPPOSE PAYING THEM BETTER, WHICH WILL FURTHER ENHANCE THE QUALITY OF THOSE WILLING TO DO THIS WORK.

. 32 .

Given New York’s retrograde position on voting

issues, it’s easy to be pessimistic about the chances

for voting reform. But at the start of 2013, there

was some hope for campaign finance reform.

“The bigger opportunity has been elsewhere, not in New York,

outside of campaign finance reform,” said Steven Carbó, the state

advocacy director at Demos. The bulk of its advocacy is national

in scope. But Demos and other advocates invested a lot of hope

in the real possibility of reducing the corrosive power of money

in politics. “I think there’s a good chance on a public campaign

financing bill,” said Miles Rapoport, president of Demos, early in

the 2013 legislative session. “Beyond that, I’m not sure.”

There was a palpable sense of that hope at a gathering sponsored

by the Piper Fund in January 2013 to strategize about campaign

finance reform. It brought together funders, advocates for voting

rights and civil rights, and key public officials, including the

state’s attorney general.

“We have never had an opportunity as good as the one we have

right now to make a difference in the national debate,” New York

Attorney General Eric Schneiderman said at the Piper event. “It

was always difficult to get people really agitated about this.

Legislators were told it’s not a lunch-bucket issue. Incumbents in

both parties do not like to change a system that they’ve had success

in. We’re in a very different position now.” And Michael Waldman

of the Brennan Center for Justice, who has been working on election

issues for three decades, put it this way: “We’re really on the

knife’s edge here.”

Gov. Andrew M. Cuomo, Speaker Sheldon Silver and Sen.

Jeffrey Klein, the leader of the Independent Democratic Conference,

have all said they want to do campaign finance reform. In fact,

Cuomo has said it in all three of his State of the State messages.

Unlike voting rights issues such as ballot redesign and early voting,

which appeared in the book accompanying the State of the State

but didn’t get mentioned in the speech itself, the words “campaign

finance reform” actually emerged from the governor’s mouth as he

stood before the legislators and laid out his program for 2013.

Cuomo assured a group of emissaries after the Piper Find event that

campaign finance reform was a top priority for him, after passage

of the state budget. And in March, on a conference call with more

than 1,300 activists, the governor repeated his commitment

to finance reform. “To me, it’s one of the most important issues

to complete,” Cuomo said. “We’re trying to get it passed this year

in the legislative session.”

Another sign of hope was a possible shift in public attitudes,

which some advocates detected in the results of an upstate election

for State Senate. The candidates were a Republican member of

Assembly, George Amedore, and a Democrat, Cecilia Tkaczyk

(pronounced CATCH-ik), a first-time candidate. In redrawing

Senate district lines, the Republican majority tailored this district

specifically to benefit Amedore. It should have been an easy win.

Then something totally unexpected happened: The pivotal issue

in the race became public campaign financing. The Friends of

Democracy PAC had weighed in on Tkaczyk’s side, which annoyed

her opponent. “The real gift came from George Amedore, who

spent the last weeks attacking her for her support for citizen-funded

elections,” said Jonathan Soros, of Friends of Democracy. “The real

distinction between them became citizen-funded elections.”

In the end, Tkaczyk won by 18 votes. Soros, Marc Caplan of the

Piper Fund, and others saw in that outcome dramatic significance

for the whole issue of public campaign financing. “What it shows is

that this idea that there isn’t hunger out there for this issue is just

wrong,” Soros said.

So, an unexpected election outcome, repeated pledges of support

from the governor, and the enthusiasm of advocates made 2013

seem like a year when real, meaningful public campaign finance

. 33 .

MONEY IN POLITICS

. 34 .

would be possible in New York. But everyone knew it wouldn’t

be easy. “This is the heaviest lift there is in politics,” said

Dan Cantor, executive director of the Working Families Party.

An equally heavy lift may be the effort to coordinate the energy of

advocates so that the struggle for one reform—money in politics

—does not stand in the way of other voting rights reforms, such as

early voting and pre-registration.

Many believe that reforming the way we vote will take time.

“Voting rights is a longer-term piece,” said Karen Scharff,

executive director of Citizen Action of New York, early in the

year. “Even if they do something on early voting this year, it will be

something small. We should put together an ambitious voting

rights coalition that gets organized and formed this year for next

session. It will take a strong and broad coalition to win real reform.”

Long-term planning is vital. But it seemed critically important

that we seize the opportunity that lay in front of us right now, in

2013. “We’re at this different moment now,” Scharff said, speaking

specifically of public campaign financing. Michael Waldman of

the Brennan Center for Justice put it this way: “We’re really on the

knife’s edge here.” Miles Rapoport called this “a new moment.” The

Greeks would call it a kairos, a hinge time, propitious and ripe for

healthy change. Sadly, as it turned out, the 2013 legislative session

produced nothing in the way of real reform in the areas of registration

and expanding voter participation. So what’s needed is to build

momentum for the longer-term effort to make it easier for New

Yorkers to register and vote.

That’s the challenge to the New York Civic Engagement Table: to

weigh the political realities of the moment, see clearly the long-term

changes that are needed in the way New Yorkers choose their leaders,

and put together a smart, cohesive plan for getting there. That exercise

requires that advocates keep in mind big ideas—such as a national

right-to-vote constitutional amendment, Voter Empowerment Act

legislation at the federal and state levels, and national and state

standards for how election boards should perform.

There’s so much that needs doing—a challenging, exciting agenda

for both voting rights advocates and reform-minded legislators.

We need to make ballots simpler to read and mark; to train and test

poll workers better; to apply meaningful metrics to the performance

of boards of election; to come up with rational state or federal

standards for the equitable

distribution of voting

machines; to find a way

of replacing the partisan

duopoly at boards

of elections with

professional, apolitical

civil servants. That

would be a huge step

toward making elections

run more smoothly, to

honor with efficiency

and dignity the

commitment our citizens

make by turning out

to cast their ballot.

And advocates should

also make a commitment

to the voting rights of a population that doesn’t get discussed

much: persons who have been convicted of felonies and have

served their time. Happily, New York is not one of the four

nasty states that forever disenfranchise anyone convicted of a

felony. Unfortunately, though, New York is not as enlightened

as Maine or Vermont, which never deprive convicted felons of

the right to vote. Our state law says you get to resume voting as

soon as you finish your parole. What’s needed is a change in that

law so that those convicted of a felony regain their right to vote

as soon as they leave custody—instead of having to wait until they

complete their post-custody parole obligation. And we have to do

a better job of making sure that workers at our boards of election

WHAT’S NEEDED IS A CHANGE IN THAT LAW SO THAT THOSE CONVICTED OF A FELONY REGAIN THEIR RIGHT TO VOTE AS SOON AS THEY LEAVE CUSTODY—INSTEAD OF HAVING TO WAIT UNTIL THEY COMPLETE THEIR POST-CUSTODY PAROLE OBLIGATION.

actually understand what the law is. A Brennan Center for Justice

study by Erika Wood and Rachel Bloom in 2008 showed that too

many election workers simply don’t understand what the law is,

and they unnecessarily deprive eligible people of their actual right to

vote. As the study put it:

“De facto disenfranchisement has devastating long-term effects in

communities across the country. Once a single local election official

misinforms a citizen that he is not eligible to vote because of a past

conviction, it is unlikely that citizen will ever follow up or make a

second inquiry. Without further public education or outreach, the

citizen will mistakenly believe that he is ineligible to vote for years,

decades, or maybe the rest of his life. And that same citizen may

pass along that same inaccurate information to his peers, family

members and neighbors, creating a lasting ripple of de facto

disenfranchisement across his community.”

We’re not helping people who have committed serious crimes to

become functional parts of the community if we needlessly delay

their full participation in the community’s electoral decisions about

its future. We need them to vote.

That group, of course, is just a tiny subset of the broader population.

But the basic principle is the same: We need more people voting,

not fewer. That means making the whole process more voter-friendly,

from registration to casting the actual ballot.

That’s the work that lies ahead of voting rights advocates in New

York—a work that requires strategic thinking, hard bargaining,

and a long-term persistence that emulates the people of Oregon

and their long march to vote-by-mail. That may not be the form of

voting New Yorkers choose, but there’s a useful lesson in the way

Oregonians kept at it for years, until they got the kind of balloting

they wanted.

It’s also important to remember the persistence of Judith Browne

Dianis and her neighbors at the Oxon Hill Library in Prince

George’s County, standing in line for up to seven hours, huddled

against the cold, discussing the issues of the day, and making voting

a communal activity, filled with care for one another and with a

sense of mutual responsibility.

That should be a consoling vision for voting reform advocates,

at a time when the state is coping with the latest Albany scandals

—from a corrupt attempt to buy the Republican line in the

election for mayor of the City of New York, to good old-fashioned

embezzlement to raise money for a run for district attorney. What

we know is that this story is profoundly unsettling. What we also

know is that the scandal did not provide enough motivation to

produce voting rights reform—for now.

It’s sadly symbolic that the only major bill on voting that the full

State Legislature passed in 2013 was not a bold leap into the future,

but a timid return to the past. The roots of this action lay in

fears about the September 10 mayoral primary. The legion

of mayoral candidates made it seem likely that no one would

win 40 percent of the votes in the primary. So the city would

have to hold a runoff two weeks later. But the city’s Board

of Elections felt it could not count optical scanner ballots after

the primary fast enough to be ready for the runoff election. So the

legislature voted to postpone the runoff one week, to October 1,

and to authorize the board to drag the old lever machines out

of storage and use them. During debate on the bill, the Senate

narrowly rejected an amendment that would have created a state

public campaign financing system.

In summary, that is all the legislature really did about voting this

year. Whatever it may be, it is clearly not reform.

At this moment, as advocates reflect on a deeply disappointing

legislative session and prepare for a long-term struggle to overcome

the forces of inertia on these issues, the words of Tova Andrea Wang

are important. We said it above, but it’s worth repeating:

“Our democracy will only be a true democracy when the full range of voices

and interests have an equal opportunity to be heard and heeded.”

. 35 .

H A G E D O R N F O U N D AT I O NH A G E D O R N F O U N D AT I O N

800 PORT WASHINGTON BLVD.PORT WASHINGTON, NEW YORK 11050

516/767-5754