Judge Orders NYC Board of Elections to Protect Purged Voters' Rights

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Sign at poll station at 332 Linwood Street, East New York

The New York City Board of Elections must provide affidavit ballots to all voters who believe they are registered to vote but whose names do not appear on the registration rolls, a federal judge ordered Friday night.

Judge Nicholas Garaufis signed off on the hand-written order that requires the Board to actively communicate its affidavit ballot policy to its poll workers, to the press and on Twitter in advance of Election Day on Tuesday.

The order stems from a lawsuit filed in the Eastern District federal court on behalf of the good government group Common Cause, which advocates for individuals' voting rights, along with two named plaintiffs.

The suit challenged the Board’s removal of voters from the registration rolls in violation of the 1993 National Voter Registration Act. The law prohibits removing voters who have moved from the rolls unless the person has failed to vote in two successive federal elections and has failed to respond to a notice from the Board indicating that their registration will be cancelled. 

The complaint cites WNYC's reports about the Board improperly purging 120,000 Brooklyn voters from the rolls and the steps it took to reinstate voters purged on two specific dates — June 18 and July 5, 2015.

But it also argues that more voters may have been improperly purged on other dates.

Specifically, it describes the situation of two foreign service workers, Benjamin Buscher and Sean Hennessey, the two named plaintiffs.  

Buscher and Hennessey maintain a permanent residence in Brooklyn while they work overseas for the State Department, according to the complaint. In October, both men applied for absentee ballots.

When those absentee ballots did not arrive, they contacted the Kings County Board of Elections Office and were told that their registrations were no longer valid and that they had missed the deadline to update their registration.

The plaintiffs contacted the nonprofit Lawyers Committee for Civil Rights Under the Law which learned that the Board had removed the plaintiffs on August 5, 2014.

The case was brought on behalf of the plaintiffs by the Lawyers Committee along with LatinoJustice PRLDEF and the law firm Dechert LLP.

Before the court proceeding, the Board agreed to send Buscher and Hennessey their absentee ballots via overnight mail.

Then, at Friday's hearing, the parties agreed that the Board must tell all voters that they have the right to vote by affidavit ballot if they believe they are registered and their name does not appear in the poll book.

After the election, voters will the receive a notice from the Board telling them whether their vote will be counted.

The parties are expected to return to court later this month as the Board determines which affidavit ballots to count and whether additional voters need to be restored to the rolls.

In a statement, Valerie Vasquez-Diaz, spokesperson for the city Board, noted that, "The Board of Elections in the City of New York was recently recognized by the State Attorney General," for adhering to, "the clear requirement that all voters must be offered an affidavit ballot even if the poll worker believes the voter is ineligible to vote in the election."

She added that the Board would, "provide additional notice to voters regarding the availability of affidavit ballots. The Board also will reiterate to its poll workers that they are required to offer an affidavit ballot to any individual who believes he/she is registered to vote."

Copies of the complaint and the court order are included below. 

This story was updated Saturday afternoon to include a statement from the Board of Elections in the City of New York.

2016.11.03 Common Cause Et Al v. BOE Et Al Complaint by Brigid Bergin on Scribd

Dkt. 8 Joint Stipulation by Brigid Bergin on Scribd