Islip Faces Section 2 Voting Rights Act Challenge

From plaintiffs’ press release:

A lawsuit filed in federal court alleges that the at-large voting system of the Town of Islip violates the Voting Rights Act by systematically preventing members of Islip’s Latino  community from electing candidates of their choice to the Islip Town Board, despite the strength that the Latino community would have as a voting bloc under a system of single-member districts. Attorneys from Paul, Weiss, Rifkind, Wharton & Garrison LLP, the Law Offices of Frederick K. Brewington, and Newman Ferrara LLP filed the lawsuit on behalf of Ana Flores, Rene Flores, María Magdalena Hernández, Magali Roman, Make the Road New York, and New York Communities for Change against the Town of Islip, the Islip Town Board, and the Suffolk County Board of Elections.

“As a long-time resident of Islip, I’ve seen time and again how the Town Board has treated the Latino community like second-class citizens,” said María Magdalena Hernández, plaintiff in the case and member of Make the Road New York. “They have repeatedly failed to provide interpretation and translation to Spanish-speaking residents like me. They have ignored our requests for cleaner streets and safer roads. And they make us feel unwelcome. Until our community can elect a representative of our own, the Town will never listen to us.”

 

The plaintiffs allege that the Town’s at-large voting system should be replaced with single-member districts because, under the current system, the Town Board has been unresponsive to the needs of the Latino community and repeatedly failed to afford Islip’s Latino residents the same rights and services that it provides to more affluent white communities. For example,

● The Department of Public Works ignores requests to repair potholes, traffic lights, and stop signs in Latino neighborhoods

● The Town fails to provide proper public services (such as street cleaning, garbage pickup and snowplowing) on an ongoing basis in the Latino community, while ensuring that white communities are given priority access to these same services

● The Town has repeatedly failed to provide translation and interpretation services to Spanish-speaking residents

● Latino residents are often met with hostility or indifference when they ask local law enforcement and municipal services for help

“The Town handles complaints from our neighborhoods differently than it handles complaints from other parts of Islip,” said Magali Roman, another plaintiff in the case. “When people in the Latino community call to report streets that need to be repaired, the Town does not respond to us. When these problems are not fixed, accidents happen, people’s cars break down. They might miss work and lose their jobs, or they might be hurt. These problems start out small, but because the Town neglects them, they grow and have big consequences.”

 

Although Latinos make up approximately one-third of the Town’s population, no Latino has ever been elected to the Islip Town Board. Further, in the last three decades, only one of the 30 residences belonging to elected Town Board members was located in the Latino community; the single residence located in a Latino community belonged to a Republican Town Board member who owned three residences. The plaintiffs allege that Islip’s Latino residents are a politically cohesive community that has demonstrated the ability to elect candidates of their choice when an at-large system does not dilute their votes, and has succeeded in electing Latino candidates to county and state Legislature seats.

Currently, all Islip residents vote for each Town Board position, meaning that the same majority can control the outcome of the race for each Town Board seat. As a result, Islip’s Latino community has little chance of electing any candidate of its choice. The plaintiffs argue that the current at-large system should be replaced by a single-member system, in which the Town would be divided into separate districts with one council member representing each district, as is the case in Long Island towns such as Hempstead, North Hempstead and Brookhaven.

In support of their argument for a district-based system, the plaintiffs highlight the Roberto Clemente Park dumping incident as an example of the Town’s neglect of the Latino community.

In 2013, two politically connected companies began dumping tens of thousands of tons of toxic waste, including asbestos, into the park located in the heart of Islip’s predominantly Latino neighborhood, Brentwood. Town officials knew of the dumping at the time. Rather than alerting law enforcement and the community of this illegal and dangerous activity, they concealed evidence that the dumping had occurred. These Town officials were later criminally charged and pled guilty.

The Latino community’s problems with Roberto Clemente Park endured. Following the dumping, Town officials failed to promptly close the park and notify local residents of the incident. In addition, the Town failed to provide adequate translation services at a town hall meeting intended to explain the dumping to Islip’s Latino residents. The park did not reopen until 2017, leaving the Latino community without its main center for recreation and community for three-and-a-half years. When the park eventually reopened, construction was not complete and many were concerned whether the park was safe for children. Moreover, the nearby pool, which had been closed in 2011, has still not been reopened.

“The pool at Roberto Clemente Park has always been an important place for me, my family, and my community,” Ana Flores, a member of New York Communities for Change, said. “It is our pool. Our pool has been closed more than five years and it’s still closed. Because of the Town’s neglect, my brother didn’t grow up with the same pool that I grew up with. The Town’s behavior is unacceptable and would never be accepted in the rich, white communities that the Town rushed to help in the wake of Hurricane Sandy.”

The Town’s discriminatory zoning and land use practices have also permitted the industrialization of large tracts of Central Islip and Brentwood, often in close proximity to residential developments, which has impacted the health of Latino residents. Brentwood and Central Islip are home to a disproportionate number of environmental hazard and waste sites, including Superfund sites, that are located right inside residential areas; these sites are not well-maintained, posing serious risks of contamination of water sources and other community resources. As recently as 2015, the Town disregarded the health and safety of Brentwood residents by fast-tracking approvals for the establishment of a scrap metal recycling facility and metal shredder near a neighborhood, despite opposition from the Suffolk County Planning Commission and the community.

The plaintiffs also allege that the at-large system preserves an unjustifiable, bloated, corrupt political system that currently goes unchecked and allows elected officials from predominantly white communities remain in power.

 

“In 1988, then-Supervisor Frank Jones said the representation of the Latino community in the Town was ‘not in proportion to the influential numbers growing in the in the community. We need to do more,’” said Fred Brewington, The Law Offices of Frederick K. Brewington. “Since then, the Town has done absolutely nothing to remedy this situation and has turned its back on its Latino residents.”

“By filing this lawsuit, the Latino residents of the Town of Islip are making it clear that they will no longer be relegated to second-class status,” said Greg Laufer, Partner, Paul, Weiss, Rifkind, Wharton & Garrison LLP. “For the past three decades, the democratic process has been manipulated to maintain the one-party rule that perpetuated political corruption and the inequitable distribution of the Town’s resources.”

 

“When I became a citizen, I thought I would never be treated like a second-class citizen in my own country,” Ms. Flores said. “I was promised that — as a citizen — my vote could elect someone to represent me and my community. Here, in the Town of Islip, that promise has never been kept. And, so, today we sue to ensure our right, as citizens of this community, to elect board members who represent us!”

 

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IDC Campaign Account Ruled Illegal By State Supreme Court

From Thursday’s news, David Lombardo reported in the Times Union “(a) fundraising agreement between a statewide third party and the state Senate’s now-defunct Independent Democratic Conference has been deemed invalid by a state Supreme Court justice.

The 2016 arrangement with the Independence Party boosted then-IDC Leader Jeff Klein’s ability to raise and spend campaign money, as the new account was able to accept six-figure campaign donations and transfer unlimited amounts to candidates. The increased fundraising muscle was flexed in 2016 and had been expected to play a pivotal role in September, when the eight former members of the conference may face Democratic primaries.”

 

50 Years Later: Remembering Robert F. Kennedy And The Continued Fight For Equal Representation

By Jeffrey M. Wice

It’s now been fifty years since our nation lost Senator Robert F. Kennedy. He was a leader on so many important issues — from human rights and peace, to hunger and poverty in America. As we approach the 2020 Census and the next round of redistricting of Congress and state legislatures, it is worth reflecting on the role Kennedy played in fair districting. It mattered in Kennedy’s time and it matters today.

Drawing electoral lines for political representation purposes has long given rise to controversy in the United States, from criticism of oddly shaped districts for partisan purposes (often referred to as “gerrymandering”), to drawing lines that favor rural over urban constituencies. While fairness in voting goes to the heart of democratic representation, for decades state legislatures largely were given free rein over mapping decisions without oversight from the judiciary.

For example, in 1946, the United States Supreme Court rejected a challenge to Illinois’s congressional districts after a Northwestern University professor alleged they were malapportioned. In Colegrove v. Green, Justice Felix Frankfurter opined, “Courts ought not to enter this political thicket. The remedy for unfairness in districting is to secure State legislatures that will apportion properly, or to invoke the ample powers of Congress,” 328 U.S.549, 556 (1946).

It wasn’t until 1962 that the Supreme Court reversed its direction in Baker v. Carr. In the Baker decision, authored by Justice William J. Brennan, the Court found that the Fourteenth Amendment’s Equal Protection Clause warranted judicial review of electoral district line drawing. According to Brennan’s reasoning, each vote cast in an election should be given approximately equal weight, 369 U.S. 186 (1962).

In the early 1960s the Kennedy administration supported judicial intervention to remedy malapportioned districts. When the Supreme Court agreed to hear Gray v. Sanders, a constitutional challenge to Georgia’s county-based primary system that favored rural areas, Attorney General Robert F. Kennedy chose it as the one case he would argue before the Court.

Gray v. Sanders focused on the state’s use of a county-unit vote-counting system for primary elections. Candidates receiving the highest number of votes would receive all of the county’s unit votes. To win, a candidate would have to receive a majority of the county unit votes statewide. Rural counties usually came out ahead even though they comprised only one-third of the state’s population at the time. Plaintiff James O’Hear Sanders, who lived in a largely populated county, argued that the county unit rule gave his vote less weight.

 

At oral argument in the United States Supreme Court on January 17, 1963, Kennedy was accompanied by several family members, but reportedly had no counsel seated with him and only a handful of talking points. Kennedy went straight to the importance of weighing votes, pointing out, “We used to have, and I repeat used to have, a saying in my City of Boston which was vote early and vote often.” In explaining what was at stake in Grey, he continued, “If you live in one of the small counties in the State of Georgia, all you have to do is vote early and you accomplish the same result.” In short, whether it’s voting twice, or having your one vote worth two votes, the perverse impact on equal representation is the same.

The Justice Department’s position that Georgia’s scheme violated equal representation prevailed in the Court. Writing for an eight-justice majority, Justice William O. Douglas stated:

Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote — whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit. This is required by the Equal Protection Clause of the Fourteenth Amendment, 372 U.S. 368, 379 (1963).

It is significant that the attorney general of the United States chose to make an equal protection case his only argument before the Supreme Court when these cases were in their nascent stages. Later, as New York’s junior senator, Kennedy opposed a constitutional amendment to overturn Reynolds v. Sims, the Supreme Court decision requiring that state legislative districts must be generally equal in population.

On the heels of Gray, the Court rendered key decisions in a series of landmark cases. In Reynolds v. Sims, 377 U.S. 553 (1964), Wesberry v. Sanders, 376 U.S.1 (1964), and Avery v. Midland County, 390 U.S. 474 (1968), respectively, the Court held that both chambers of state legislatures, congressional districts, and local legislative bodies had to be apportioned on an equal population basis.

During the 1980s, the Supreme Court took up cases that dealt with racial and partisan gerrymandering. It set standards for Voting Rights Act compliance in Thornburg v. Gingles, 478 U.S. 30 (1986), by creating standards to determine when minority vote dilution occurs. In Davis v. Bandemer, 478 U.S. 109 (1986), the Court opened the door to judicial review of partisan gerrymandering claims, finding them justiciable, but upheld the Indiana districting at issue on the grounds that it was not “sufficiently adverse” to violate the Equal Protection Clause.

Today, the Court is being asked to go further in ensuring equal representation, including by setting a new standard limiting partisan “gerrymandering.” In addition to making many districts noncompetitive by drawing lines to favor one political party over another, gerrymandering has been cited as a factor in less bipartisan cooperation and greater gridlock in legislative bodies, Gil v. Whitford (No.16-1161), Benisek v. Lamone (No. 17-333).

Looking back fifty years after Kennedy’s death, we are left to wonder what might have been different had he lived and been elected president. There are so many “what ifs” that can’t be answered. But we can take a moment to reflect on how Robert F. Kennedy chose to make the fair representation in Gray his fight before the Supreme Court so long ago, how far our nation has come in addressing the matter, and how much further our nation has to go toward achieving the goal.

 

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Senate Elections Committee Meets Monday, June 4

Room 805 LOB

1:00 PM to 1:00 PM

Meeting Agenda

S26

Enacts the “tax returns uniformly made public act”

SPONSOR Brad Hoylman

S3304A

Enacts the voter empowerment act of New York

SPONSOR Michael Gianaris

S4322

Requires propositions authorizing creation of a state debt to contain an estimate of the debt service payable and publish an explana…

SPONSOR James Tedisco

S4786

Provides that absentee ballots for all elections shall be made available in Braille, upon request of a blind or visually impaired voter

SPONSOR Joseph A. Griffo

 

Governor Cuomo and State Board Of Elections Announce Regional Exercises To Strengthen Cybersecurity Of NY’s Election Infrastructure

Press release:

First-of-Its-Kind Tabletop Exercise Sponsored by State Board of Elections and U.S. Department of Homeland Security; in Partnership with the Division of Homeland Security and Emergency Services, State Police, and State Intelligence Center

 

Series of Regional Exercises Statewide Will Focus on Cybersecurity Preparedness and Response to Threats to Election Systems

 

 

Governor Andrew M. Cuomo today announced that the State Board of Elections—in concert with the U.S. Department of Homeland Security—will host a first-of-its-kind series of tabletop exercises focused on protecting the integrity of New York’s electoral systems against cyber-attacks. Partnering with the Division of Homeland Security and Emergency Services, State Police, and State Intelligence Center, the tabletop exercises will identify areas for improvement in cyber incident planning, preparedness, and response through simulation of realistic scenarios attempting to undermine voter confidence, interfere with voting operations, and affect the integrity of elections.

 

“We have witnessed firsthand the devastating consequences a compromised election has had on our nation and New York will not stand idle and allow our democracy to be infiltrated once again,” Governor Cuomo said. “The people of New York deserve an open, transparent election process they can trust, and these exercises are an integral part of restoring voter confidence and the integrity of our election infrastructure.”

 

State and local officials, led by the State Board of Elections and new DHSES Cyber Incident Response Team, will utilize information gleaned from six regional tabletop exercises with state, local, and federal stakeholders to identify risks and develop necessary steps to safeguard the election process against a cyber-attack. Exercise dates and locations are below:

 

• May 31: Albany County – Times Union Center
• June 6: Monroe County – Board of Elections
• June 7: Onondaga County – Syracuse University, Dineen Hall
• June 11: Nassau County – Morrelly Homeland Security Center
• June 12: Orange County – County Department of Emergency Services
• June 18: Broome County – Floyd L. Maines Veterans Memorial Arena

 

The regional tabletop exercises will cover all of New York’s county election jurisdictions. The exercises will be substantively similar, with several scenarios contoured for each region. The scenarios will be based on a combination of real world events and potential risks facing our election infrastructure. This includes possible social media manipulation, disruption of voter registration information systems and processes, voting machines, and the exploitation of board of elections business networks.

 

These tabletop exercises are part of the Board’s cybersecurity plan that was approved on May 3, 2018, to further strengthen cyber protections for New York’s elections infrastructure through the Board’s Secure Elections Center. The plan, dubbed ARMOR has four elements: 

 

• Assess the risk to State and County Elections Systems;
• Remediate the vulnerabilities;
• Monitor ongoing Operations; and 
• Respond to incidents.

 

Senator Fred Akshar, Chair of the Senate Elections Committee said, “These exercises demonstrate the State’s commitment to protect New York’s voters and ensure New York State continues to take precautionary measures to safeguard our voting systems. State, local and federal partners are actively collaborating to protect and assure the resiliency of New York’s elections infrastructure.”

 

Assemblyman Charles Lavine, Chair of the Assembly Election Law Committee said, “New York State has a responsibility to ensure those entitled to vote can remain confident in the integrity of New York’s election systems.  Working together with our partners, we will continue to strengthen and secure the cyber environment in New York and ensure public trust in the voting process.”

 

Todd D. Valentine, Co-Executive Director of the State Board of Elections said, “So far there have been no credible reports of disruptions in our electoral systems, but we cannot be complacent.  We have worked diligently since 2016 to develop a robust plan and these tabletop exercises are a vital part of sharing information with state and local officials.”

 

Robert A. Brehm, Co-Executive Director of the State Board of Elections said, “From some of the most stringent security protocols in the nation for voting systems to taking steps to meet the challenges that cyber threats pose, the Board welcomes this opportunity to build upon its already strong relationships with local, state & federal partners to best position itself to protect the election infrastructure of the state.”

 

Dr. Peter Bloniarz, Executive Director of the New York State Cyber Security Advisory Board said, “Cyber security is an “all hands on deck” effort that takes teamwork and partnership between all levels of government.  Under Governor Cuomo’s direction, his administration has worked collaboratively with State and County Boards of Elections and federal authorities to prepare to meet today’s cyber threats.  Lessons learned from these tabletop exercises will help New York continue to be vigilant in protecting its election infrastructure.” 

 

Division of Homeland Security and Emergency Services Commissioner Roger L. Parrino, Sr. said, “When citizens walk into the voting booth, they want to know that their vote counts. It is the duty of the government to ensure that every vote and voter is secure, the process works, and the system is protected from outside influence.”

 

State Police Superintendent George P. Beach II said, “In America, voting is one of our most cherished rights. The State Police and our agency partners within New York State recognize that it is important to protect the sanctity and integrity of that privilege.  As threats to our Cybersecurity become more plausible, collaboratively we need to be proactive in protecting that infrastructure. By bringing everyone to the table, these exercises will better prepare us to respond to such attacks. More importantly, by working together, we can help to prevent these types of attacks on our cyber systems.”

   

Bob Kolasky, Acting Deputy Under Secretary of the National Protections and Programs Directorate at the U.S. Department of Homeland Security said, “These exercises show the seriousness with which federal, state and local officials take the threat to election infrastructure, and the level of cooperation taking place to address it. State and local officials in New York have taken a number of steps to improve the security of their elections, and the Department of Homeland Security stands ready to support their efforts through exercises, information sharing, and by providing our technical cyber analysis and expertise.  We look forward to continuing to work together to ensure the security and integrity of future elections in New York.”

 

Matthew Masterson, Senior Cybersecurity Advisor at DHS’s National Protection and Programs Directorate said, “The Department of Homeland Security values our partnership with New York State as we work together to improve the security of the election process. Today’s training is just one example of the New York State Board of Elections commitment to the process to secure elections against cyber and other threats. We will continue to support the Board of Elections’ work to ensure the election process is secure and the residents of New York votes count.”

      

These exercises align with initiatives announced in Governor Cuomo’s 2018 State of the State address, which includes a four-pronged approach shared by the State Board of Elections to further strengthen cyber protections for New York’s elections infrastructure:

 

• Create an Election Support Center;
• Develop an Elections Cyber Security Support Toolkit;
• Provide Cyber Risk Vulnerability Assessments and Support for County Boards of Elections; and
• Require Counties to Report Data Breaches to State Authorities 

 

Although the tabletop exercises will not be open to the public, there will be limited press availability before each event. For more information, contact John Conklin or Cheryl Couser in the New York State Board of Elections Public Information Office at (518) 474-1953 or INFO@elections.ny.gov; or Kristin Devoe at the Division of Homeland Security and Emergency Services: Kristin.Devoe@dhses.ny.gov.

 

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Breaking News: Election Petition Witness-Residency Rule Requirement Held Unconstitutional

In a breaking development, US Magistrate Steven Gold has held that the witness-residency requirement of Election Law § 6-140(1)(b) is unconstitutional. A copy of the decision can be read here: 61 Memorandum and order

Progressives Draft Convention Resolution To Allow Unaffiliated Voters In Democratic Primary

In an April 25 Gotham Gazette posting, Samar Khurshid reported “a group of progressive activists is pushing for the state party to change its rules and open up the primary to unaffiliated voters.

New York Progressive Action Network, a grassroots coalition affiliated with Our Revolution, which grew out of Senator Bernie Sanders’ presidential campaign, is drafting a resolution that its members hope to introduce at the State Democratic Party’s nominating convention in May, the group’s co-chair, George Albro, told Gotham Gazette on Tuesday.”