Justice Department Says City Board of Elections Violated Federal Law in Brooklyn Voter Purge

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A sign outside a polling site in Dyker Heights, Brooklyn.

The United States Department of Justice is taking on the New York City Board of Elections for improperly purging nearly 120,000 Brooklyn voters before the April 2016 presidential primary.

In a motion filed in federal court Thursday, the DOJ claims the Board violated the National Voter Registration Act of 1993 when it removed those voters from the rolls.  

It's the first time federal authorities have taken a position on the purge, which was first reported by WNYC on the eve of the primary vote in April. Numerous elected officials and advocates had requested federal intervention since.

The case was originally filed in federal court in Brooklyn last November on behalf of the good government group Common Cause, which advocates for individuals' voting rights, along with two named plaintiffs.

Lawyers for the plaintiffs also sought intervention from the Justice Department, citing WNYC's reporting.

The suit challenges the Board’s removal of voters from the registration rolls in violation of the 1993 National Voter Registration Act. The law prohibits removing voters 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 government said that some voters had in fact voted in prior elections, and in other cases the notice itself was improperly handled.  

WNYC reported that the board mysteriously purged 120,000 Brooklyn voters from the rolls prior to the hotly contested primary between Hillary Clinton and challenger Bernie Sanders last April. The board then said it would reinstate those voters in time for last summer's congressional primaries and the fall general election for president. WNYC also reported that the purge disproportionately affected Latino voters in Brooklyn's 7th Congressional district.

Elected officials and advocates cited the station's reporting in their complaints to the federal government and the court. They also argued that more voters may have been improperly purged on other dates, and that the problem persists.

The original court case describes the situation of two foreign service workers, Benjamin Buscher and Sean Hennessey, the two named plaintiffs, who keep a permanent residence in Brooklyn while they work overseas for the State Department. In October of 2016, both men applied for absentee ballots to vote in the general election, according to the complaint.

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 more than two years before.

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

Four additional named plaintiffs have been added to the lawsuit.

In the motion filed Thursday, the DOJ mades public for the first time results of its own investigation of the city Board of Elections, including how the board staff flagged 122,000 voters for deletion throughout 2014 but never sent notices to the voters until May 2015. It also said the Board's staff in the central office sent the notices to voters, suggesting this is more than just a localized Brooklyn Borough problem.

“The right of citizens to vote is a critical part of democratic process,” said U.S. Attorney Robert L. Capers of the Eastern District of New York.  “We will work tirelessly to ensure that, in the future, the New York City Board of Elections fulfills its statutory obligation to maintain the rolls properly, and follows the appropriate notice and timing requirements for voters that federal law requires when it does so.”

The city Board of Elections said it does not comment on pending litigation, and the city Law Department, which is defending the board, said the matter is under review. In a letter to the judge, the Justice Department said it is in talks with the board about an appropriate remedy and will have an answer by Feb. 6.

Common Cause New York, et al and United States of America v. Board of Elections in the City of New York by Brigid Bergin on Scribd