NY AG Schneiderman Alleges 'Gross Negligence' by City Board of Elections

Email a Friend
Multilingual "Vote here" signs outside of a polling site in Dyker Heights, Brooklyn.

The New York City Board of Elections' improper purge of nearly 120,000 Brooklyn voters ahead of last year’s presidential primary was just one part of wider problem that extended over two years and stretched across the city, according to an eight-month investigation by New York State Attorney General’s office.

In a motion filed in federal court late Thursday, Attorney General Eric Schneiderman alleges the board improperly removed more than 200,000 voters from its rolls, dating back to 2014. There are more than 4 million voters registered to vote in New York City.

Beyond the Brooklyn purge, first reported by WNYC, Schneiderman’s office found that the city improperly removed another 60,000 voters in 2014 and 43,000 voters in 2015, in violation of state and federal laws. These actions were taken with the knowledge of borough officials and the central staff, commissioners, and executive management, who the AG alleges either did not know or did not care that they were breaking the law.

“That these things were going on reflects, in our view, gross negligence and a real dereliction of duty,” Schneiderman told WNYC.

His office is moving to join the Department of Justice in its lawsuit against the city Board of Elections, originally filed by LatinoJustice PRLDEF, the Lawyers Committee for Civil Rights Under the Law and Dechert LLP on behalf of Common Cause, a good government group that advocates for voting rights.

Schneiderman said the suit warrants state and federal involvement because there is evidence that the city Board of Elections broke both state and federal election laws. 

MORE THAN PURGES

In December 2013, the city Department of Investigation released a report that found systemic problems at the city Board of Elections, particularly related to their maintenance of voter rolls, and recommended the agency review its cancellation policies to ensure ineligible voters were removed.

Following the report, officials at the city board began to look for ways to clean up their voter rolls including using a database from the Social Security Administration to determine whether a voter died.

Then the city board took a more unconventional step to find people who had died that were still on the rolls.

According to Schneiderman’s motion, in late January 2014, officials from the Queens Borough Office signed up for a subscription to the private, commercial website Ancestry.com, where people share their family history data. Schneiderman described the source as "completely improper." The Queens staff told the board’s head of Voter Registration and the top two executives at the board of their plan to use the website for voter list maintenance. No one attempted to stop them, according to AG’s investigation.

MORE THAN BROOKLYN

The investigation began after WNYC reported that the city Board of Elections improperly removed 117,000 voters in Brooklyn from the rolls in the run-up to the hotly contested presidential primary between Hillary Clinton and Bernie Sanders.

Schneiderman and the Justice Department found that the  Brooklyn purge violated the National Voter Registration Act and New York State election law because staff removed voters who simply hadn't voted since 2008, without following further verification procedures.

The AG’s investigation found that staff at the Queens and Manhattan borough offices also removed voters from their rolls for not voting, although the exact number of voters removed is unknown.

Voters are only supposed to be removed from the rolls if they have died, are in prison or on parole for a felony conviction, or have been deemed incompetent by a court.

If the board has evidence a person has moved, the law requires it to send the voter a notice confirming the move and then the voter is placed in “inactive status.” The board must then wait two federal election cycles (usually up to four years) before the voter can be removed from the rolls, according to state and federal law.

According to the AG’s office, the city board improperly removed another 103,000 voters whom the city Board of Elections believed had moved outside of the city, but only gave them 14 days to respond to a cancellation notice, instead of the two federal election cycles mandated under state and federal law.

The evidence in the AG’s complaint includes interviews with current and former city board staff along with emails that show some staff knew that the purges were breaking the law. "This whole process is a big mess," wrote one employee.

“It’s not that there was just one glitch or a couple of rogue employees, there were dozens of people, and again, three separate purges,” said Schneiderman.

The AG is asking the court to order the city Board of Elections to perform an audit of every voter who was sent a cancellation notice based on their failure to vote or an alleged change of address since January 1, 2014, and the reinstatement of anyone the board removed in violation of state and federal law. The board has already re-instated the 117,000 voters involved in the Brooklyn purge.

Schneiderman also wants the court to remove the city’s current head of Voter Registration, Beth Fossella, who has served in the position since 2001. She is the mother of former congressman Vito Fossella, who left office under a cloud in 2009. The AG also wants the court to order the board to create a training program for employees on how to comply with state and federal law. 

ADVANCING THE INVESTIGATION

Schneiderman's motion to intervene was welcomed by the parties that first sued the board.

"At a time in which the public is distracted by statements suggesting that voter fraud is a problem, this case serves as a powerful reminder of the real issues that threaten our democracy — unlawful purging and other forms of voting discrimination and voter suppression," said Kristen Clarke, head of the Lawyers Committee on Civil Rights Under the Law, one of the group's that originally sued the board.

As the lead plaintiff in the lawsuit, Susan Lerner of Common Cause said the AG's investigation helps the plaintiffs make their case without waiting for a trial.

"The attorney general is ahead of the curve because he already has used his investigatory powers to figure out what went wrong," said Lerner noting the findings break state and federal law.

The city Law Department, which is representing the board, says the city is working with the Justice Department and the attorney general's office to settle the case.

2017-1-26 NYAG Letter Motion to Intervene - Signed by Brigid Bergin on Scribd

2017-1-26 NYAG Proposed Complaint in Intervention by Brigid Bergin on Scribd