City Council Charter Revision Commission Testimony – Voting Reforms

2019 NEW YORK CITY CHARTER COMMISSION

 City Hall-Council Chambers
City Hall Park
New York, NY, 10007

September 27, 2018

I want to convey my best wishes to Chair Gail Benjamin and members of the City Council’s Charter Revision Commission.  In that this is the first time the New York City Council has exercised its authority under the state’s Municipal Home Rule Law to create such a Charter Commission, you have an historic role for our city’s future.

We have had numerous mayoral commissions in our history, but at no other time have we had one whose membership was required to and did represent all the elected officials of New York City.  Public Advocate Tish James and Borough President Gale Brewer are to be congratulated for conceiving of a commission such as this, and, of course, Speaker Corey Johnson and the Council for creating it.   Further, most mayoral commissions are created with specific, narrow goals in mind, and those commissions rarely if ever stray from such direction.  This Commission, on the other hand, has received no such assignment, and has not been directed to focus on any particular issue to the exclusion of others.  Indeed, your mandate is what the law requires:  to review the entire Charter and to revise it as substantially as you see fit.   In this respect, your task is very much like the commissions of the late 1980s when a fundamental review of the Charter was undertaken under the leadership of Richard Ravitch and Fritz Schwarz.  I have every confidence that you will acquit yourselves admirably in your historic opportunity.

I testify tonight as a representative of the New York City Bar Association. I have had the privilege of serving as Chair of its Committee on New York City Affairs for the last three years.   During that time, as well as during the last thirty five years in a variety of professional roles, including as an election law practitioner and Adjunct Professor of Law at Fordham Law School, I have studied the Charter and Charter revision.  In fact, as far back as the mid-1980s, I participated in a group called Citizens for Charter Change, led by then-Councilperson Ruth Messinger, and I led a group to initiate a Citizens Charter Revision Commission pursuant to the Municipal Home Rule Law.[1]   I also have testified at various Charter Commission hearings over the last number of decades, and have written and lectured extensively on a variety of proposed Charter amendments.[2]

So I am especially pleased to have the opportunity to talk with you tonight about your historic opportunity.

The City Bar offers what I call our “Democracy Agenda for New York City”.  This includes taking the bold, but wholly warranted, step of enhancing voting opportunities in New York City elections. As everyone on this Commission knows, the New York state legislature has failed or refused to enact meaningful voting reform for many years.  We have a woefully restrictive set of election laws.  Thirty seven states have early voting;[3] New York does not.   Twelve states and the District of Columbia have enacted automatic registration;[4] New York should at least provide the opportunity to register on the eve of elections.  Twenty six states and Washington D.C. allow no-excuse absentee voting;[5] we should permit it.  There are many states that allow open primaries;[6] New York voters should not have to wait almost a year to change political party affiliation.  And Instant Run-off Voting, used in fifteen cities and the State of Maine, would eliminate an extra trip to the polls and save taxpayer dollars; this was used in New York City School Board elections. [7]

New York City need not wait for Albany to act.  This Commission can – in one dramatic move – embrace these voting procedures for our municipal elections.  Each of these reforms, and all of them taken together, would be a giant step for democracy in New York City.  Both the City Bar Report and my proposed § 1057-g of the Charter provide a set of specific goals and procedures to implement enhanced registration and enrollment opportunities, early voting, instant run-offs and no-excuse absentee voting. With one comprehensive stroke, this Commission can create more robust elections by making it easier to register and vote.

The City of New York has the authority to enact such reforms in municipal elections, as articulated by various experts and disinterested parties, including the courts,[8] a former New York Attorney General,[9] and a former New York City Corporation Counsel.[10]  Thus, for example, over the years we have established in our municipal elections a highly regarded campaign finance program; term limits; reduced petition signature requirements for ballot access; and non-partisan elections for vacancies.

The Democracy Agenda we are proposing would be implemented using a municipal ballot on which candidates for municipal offices would appear.[11]  Candidates for all other public offices (e.g., District Attorney, Supreme Court Justice) or party positions (members of a party committee, elected at the primary elections) would be listed on a separate ballot.   The City’s Board of Elections would have to update its voter database to indicate who is eligible to vote at a specific election, but we do not believe the required administrative work is unduly burdensome.  In fact, this procedure would be no different from the Board’s current practice of indicating on its database which voters must present an ID or which voters have been challenged.[12]  Logging in additional information relating to enhanced registration or new party affiliation seems easily and readily manageable.  Moreover, since the proposed reforms are contemplated as taking effect in the 2021 municipal elections, the Board has at least two years to consider and adopt necessary procedures to implement these proposals, a period of time we believe should be sufficient to effectuate these reforms.

Of course, we acknowledge that the better course would be to have Albany enact this Democracy Agenda for all public offices and party positions throughout the state.  That would be administratively easier and avoid the necessity of educating voters as to the separate procedures for municipal elections.   But you should not be deterred from enacting these reforms because you are waiting for a more perfect solution.  Indeed, if this Commission adopts the Democracy Agenda for New York City, it may very well incentivize Albany to enact such reforms statewide for all elections.

I trust that the Commission will seriously consider this proposal, and, on behalf of the City Bar, we appreciate all your efforts to make New York City government more responsive to the needs of our eight million people.