Intended to combat discrimination, the law strips power from the state election board and local officials — and hands it to Letitia James.
New York attorney general Letitia James recently gained an unprecedented level of control over elections in the Empire State through a new requirement that undermines the state’s bipartisan board of elections.
A controversial provision of the New York Voting Rights Act went into effect on September 22, requiring certain local governments to obtain “preclearance” from the Democratic attorney general or a state court before making any changes to the election or voting process. Any significant changes, including moving poll sites or removing deceased voters from registration records, must be officially precleared.
Instead of answering to the bipartisan board of elections, local jurisdictions will have to seek approval from James first.
“Now you’re putting the attorney general above all of this,” Joseph Burns, an election lawyer for Holtzman Vogel, told National Review. “That’s certainly changing the power dynamics in terms of how elections are run and how the local boards of elections operate. So you no longer have that 50/50 balance.”
The New York State Board of Elections ensures both major political parties have equal representation. Because of the provision, Burns worries the fair process would be upended.
“You have one side watching the other already,” the election attorney said, “so you don’t have a situation where a Republican commissioner could go and move a poll site without getting the signoff from their Democratic counterpart.”
In June 2022, Governor Kathy Hochul signed the John R. Lewis Voting Rights Act of New York. The bill was sold as an attempt to strengthen the voting rights of all New Yorkers, especially those belonging to historically marginalized or disenfranchised communities. The legislation prohibits voter suppression and intimidation against minorities in “covered jurisdictions” – areas where voting or civil-rights violations have occurred within the past 25 years.
The approval process, known as preclearance, is meant to ensure that any changes to the election process in the covered jurisdictions do not have a discriminatory impact on minority voters.
“Some parts of New York have a history of violating voting or civil rights, arresting certain groups at higher rates, or having highly segregated neighborhoods,” the New York attorney general’s office says of the new rule on its website. “Those localities have been preliminarily identified by OAG’s Civil Rights Bureau. If these localities are considering changing their election procedures in certain ways, OAG or a state court must review and approve the changes before they can be made.”
New York’s covered jurisdictions, according to preliminary guidance published by the state attorney general’s office in December 2023, include New York City’s five counties, nine other counties, seven cities, six towns, one village, and six school districts.
Long Island, which holds two of the most competitive congressional districts in New York this election cycle, is among the areas affected by the preclearance requirement.
The county-level election boards are “going to have to get the attorney general’s blessing” before making certain changes such as canceling voter registrations or changing early-voting hours, Burns said. “It doesn’t seem like it really makes the process better,” nor does it “seem like it would really instill confidence in the public,” he added.
In response to a request for comment, the New York attorney general’s office said practices such as moving poll sites or removing residents from the voter rolls have been used to discriminate in the past. The office did not directly respond to the concerns laid out by Burns.
Seven other states have enacted their own version of New York’s voting-rights legislation in an attempt to make up for the Supreme Court’s 2013 decision striking the preclearance requirements from the federal Voting Rights Act. The Court ruled that Congress could not subject a state or locality to preclearance based on past discrimination without considering contemporary circumstances.
The Supreme Court’s recent landmark affirmative-action case could also have bearing on whether race is used impermissibly in the context of preclearance, Burns says. Since not every county or municipality in New York is covered by preclearance, an argument could be made that the state is wrongfully taking into account certain racial demographics in select areas.
The raft of dubious voting-rights legislation comes after voter confidence in U.S. elections reached its lowest point during the 2020 presidential cycle. A combination of then-president Donald Trump’s unfounded voter-fraud allegations and sweeping unilateral changes made to state election laws during Covid-19 caused the partisan divide over trust in elections to widen.
Though voter confidence in elections is still down relative to the 2018 midterms, it has rebounded somewhat over the past four years.
Seventy-three percent of registered voters across the U.S. say the upcoming election will be run and administered at least somewhat well, Pew Research Center reported last week in a new survey. That figure is up from the 62-percent low reached in October 2020, but remains below the 81-percent high recorded in October 2018.
Local election administration is seen more positively, with 92 percent of voters expressing confidence that elections in their own communities will go well – the same level of confidence recorded in 2018.
Election integrity remains a far more pressing concern among Republican voters. Only 28 percent of Republicans say they are confident that votes will be cast and counted accurately this year, according to a Gallup poll published in September. Meanwhile, 58 percent of independents and 84 percent of Democrats say the same.
Two of the foremost election-related problems that Republicans expect this cycle are voter fraud and ineligible voters casting ballots, while Democrats are far more concerned about a defeated candidate refusing to concede the race.
New York City has not been immune to vote-counting issues. The Brennan Center for Justice recently argued the city’s election board needs fundamental reform, citing a tabulation error in which 135,000 test ballots were counted toward election results during the June 2021 mayoral primary. Later that year, the left-wing nonprofit said the inefficient New York State Board of Elections suffers from flaws in the oversight of lower-level election boards.
Though New York’s bipartisan board of elections is imperfect, Burns says it preserves voter confidence and argues other states should adopt a similar system.
“I think it’s something that other states would be wise to replicate because it certainly works in New York,” Burns said. “But unfortunately, that’s being weakened and eroded by things like the state Voting Rights Act.”