Monthly Archives: July 2018

Editorial: Cayuga County Legislators Should Prioritize Redistricting

From an editorial in the Auburn Citizen: “On a legislative body, that concept makes sense for arriving at collective decisions in a fair and equitable manner. And we suspect that if you polled the 15 members of the Cayuga County Legislature, most would agree with the idea.

But despite decades of opportunities to work toward the equal districts concept, Cayuga County residents remain stuck with a weighted vote system that spreads out a wide range of voting power among the individual elected legislators.”

This debate should focus on whether the weighted voting districts violate the one-person/one vote standard.

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Felder Seeks To Remove Morris From Ballot For Using Fake Name

Stephen Witt reports in Kings County Politics: “What’s in a name? Everything if your name is Lawrence B. Morris, Lawrence Blake Morris, L. Blake Morris or just plain old Blake Morris.

And it will be up to a State Supreme Court judge on which is Morris’ real name. The decision will determine whether using the name Blake Morris on his nominating petitions, can constitute him being kicked off the Democratic ballot for the upcoming state primary, in which he is challenging State Sen. Simcha Felder (D) in the 17th Senate District.”

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Former I.D.C. Senators Are Ordered To Return Campaign Money

From the NY Times’ Jesse McKinley, “The state’s top election enforcement officer has demanded that the former members of a group of rogue Democratic state senators return hundreds of thousands of dollars in political donations, less than two months before they face stiff primary challenges.”

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Upstate Jobs Party Lose Preliminary Injunction Before Second Circuit




v. No. 18-1586-cv

PETER S. KOSINSKI, New York State Board of

Elections Co-Chair Commissioner, in his official capacity,

DOUGLAS A. KELLNER, New York State Board of

Elections Co-Chair Commissioner, in his official capacity,

ANDREW J. SPANO, New York State Board of Elections

Commissioner, in his official capacity, GREGORY P.

PETERSON, New York State Board of Elections

Commissioner, in his official capacity,



FOR APPELLANTS: Shawn Sheehy, Jason B. Torchinsky, Holtzman

Vogel Josefiak Torchinsky, PLLC, Warrenton,

Virginia; Michael Burger, Santiago Burger,

LLP, Pittsford, New York.

Case 18-1586, Document 82-1, 07/20/2018, 2349199, Page1 of 6


FOR APPELLEES: Andrea Oser, Deputy Solicitor General, Jennifer

L. Clark, Assistant Solicitor General, for

Barbara D. Underwood, Attorney General of the

State of New York, Albany, New York.

Appeal from an order of the United States District Court for the Northern District

of New York (Glenn T. Suddaby, Chief Judge) denying a preliminary injunction.


AND DECREED that the order entered on May 22, 2018, is AFFIRMED.

Plaintiffs Upstate Jobs Party, its founder, Martin Babinec, and its Chairman and

Executive Director, John Bullis (together, “UJP”), appeal from the denial of their motion

preliminarily to enjoin commissioners of the New York State Board of Elections

(“Board”) from enforcing certain state election laws that restrict campaign contributions

to and from “Independent Bodies” such as UJP in ways that do not apply to political

“Parties.”1 Arguing that the disparate treatment violates constitutional rights of free

speech and equal protection, see U.S. Const. amend. I & XIV, UJP seeks to enjoin

enforcement of (1) N.Y. Elec. Law § 14-114(1) and 9 N.Y.C.R.R. § 6214.0, which

prohibit individual contributions to UJP greater than $44,000 and UJP contributions to its

own gubernatorial candidate greater than $44,000, but which allow individual

contributions to Parties up to $109,600 and Party contributions to their own candidates in unlimited amounts; and (2) N.Y. Elec. Law § 14-124(3), which permits Parties, but not

UJP, to establish “Housekeeping Accounts” for which Parties may raise funds in any

1 See N.Y. Elec. Law § 1-104(3), (12) (defining Parties as organizations whose

gubernatorial candidates received at least 50,000 votes in most recent election and

Independent Bodies as organizations not Parties).

Case 18-1586, Document 82-1, 07/20/2018, 2349199, Page2 of 6

amount for “ordinary activities . . . not for the express purpose of promoting the

candidacy of specific candidates,” id.


Read the decision here: 82-1 2d Cir PI Decision

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Candidate Kicked Off The Ballot? It All Happens In This Room

Jeff Coltin reports in City & State “In a bland office building in Lower Manhattan, a couple dozen New Yorkers are sitting, bored, waiting for an opportunity to defend our democracy.

They are in the office of the New York City Board of Elections, in a room that, most of the time, serves as the BOE’s boardroom. For a few weeks every year, it becomes the petition hub for the city, the room through which all designating petitions for elections flow – and where all those petitions are challenged by opponents.”

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Ocasio-Cortez Confronts Crowley Over His ‘Third-Party Challenge’

From Lisa W, Foderaro in the NY Times, “So will Representative Joseph Crowley remain on the ballot in November, and challenge Alexandria Ocasio-Cortez as a third-party candidate on the Working Families Party?

That question, raised in an article in The New York Times about third-party politics in New York, took on a life of its own Thursday morning, as Ms. Ocasio-Cortez took to Twitter to complain about Mr. Crowley — with the longtime congressman quickly responding.”

And on the Times editorial page, “Though Ms. Ocasio-Cortez defeated Joseph Crowley, a leading House Democrat, in a congressional primary that sent shock waves through the party, Mr. Crowley’s name will almost certainly appear on the ballot in November under a third-party line. That’s thanks to a quirk in New York State’s election laws, an embarrassingly retrograde system that protects incumbents by confusing voters and suppressing turnout.”


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Essex County To Appeal FOIL Decision To State’s Highest Court

Peter Demola reports in The Sun “(t) he state Supreme Court Appellate Division ruled last April electronic voting records can be obtained without a court order.

But Essex County will now appeal the decision to the state’s highest court.

Lawmakers voted in an 13-4 motion last Monday to authorize Essex County Attorney Dan Manning to appeal to the New York State Court of Appeals in the long-running legal clash.”


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Census 2020: Battle Lines Drawn Over Citizenship Question

The Rockefeller Institute of Government published an article I penned on the current litigation over the census citizenship question. I thought readers might be interested.

Jeff Wice

Battle Lines Drawn Over the Census Citizenship Question

By Jeffrey M. Wice

 The 2020 Census is fast becoming one of the most litigated, even before the actual enumeration has started. Six lawsuits[1] over the addition of a citizenship question to the 2020 questionnaire are currently pending before federal courts in California, Maryland and New York. Also pending before a Maryland federal court is a case alleging that the federal Commerce Department’s Census Bureau is inadequately prepared to conduct the 2020 census due to delayed program tests, insufficient funding and staff shortages, likely resulting in severe undercount of minorities.[2] In an Alabama federal court, that state’s attorney general and a Member of Congress are challenging the Census Bureau’s decision to include all U.S. residents in the numbers used for congressional apportionment.[3]

 Two of the citizenship question cases are before New York Southern District Federal Judge Jesse Furman. Both are on fast tracks, with trials expected by late October or early November (unless Judge Furman grants the U.S. government’s motion to dismiss the case, which he said could come sometime in July).

In the first case, New York, joined by sixteen states, seven cities, and the U.S. Conference of Mayors, alleges that the citizenship question is unconstitutional for undermining the census count with a question many people fearful of government won’t answer. The case also argues that the Commerce Department violated the federal Administrative Procedures Act. In the second New York case, the New York Immigration Coalition (NYIC) raises the same constitutional claims as well as a claim that the Commerce Department acted with ill intent to add the citizenship question which threatens census accuracy and worsens census undercounting of minority communities. The two cases have been consolidated for purposes of scheduling and pre-trial discovery.

During a July 3 hearing, Judge Furman considered arguments by the Department of Commerce and the New York State Attorney General’s office about whether to dismiss the state’s challenge to the citizenship question and about whether to permit discovery to proceed so the plaintiffs could seek more information about how the federal government’s decision to add the citizenship question was determined.

At the hearing, the sequence of federal government decision making was reviewed. In a March 26 memorandum, Commerce Secretary Wilbur Ross had approved adding the citizenship question, maintaining that the question would “provide DOJ with the most complete and accurate CVAP (citizen voting age population) data in response to its request.” [4]

 Secretary Ross testified before Congress in March 2018 that he approved the question after the Justice Department originally requested it last December for better Voting Rights Act enforcement. In a memorandum Ross filed with the court on June 21, however, he indicated that he actually first thought of adding the question months earlier in 2017, well before the Justice Department’s request.

Judge Furman appeared troubled over whether Secretary Ross may have considered adding the citizenship question before being approached by the Justice Department.

For the time being, Judge Furman has limited the scope of discovery to officials of the Departments of Commerce and Justice. He left open for a later decision whether to permit discovery from other officials, which could include White House and other agency officials active in voting law efforts.

 To put these cases in perspective, litigation over the census is not new to New York. Following the 1980 census, in Carey v. Klutznick,[5] the 2nd Circuit Court of Appeals ruled that New York’s challenge seeking to adjust the census through statistical sampling could not proceed without adding the forty-nine other states that would also be affected. Litigation before the 1990 census challenged census undercounting and the disproportionate effect it would have on minority groups. In this case, New York sought to have a statistical adjustment made to the final census count based on post-census surveys. While the Commerce Department agreed to conduct the surveys, it refused to report statistically adjusted counts as official census counts.

After the 1990 census, In Wisconsin v. City of New York the U.S. Supreme Court upheld another similar decision by the Commerce Secretary when it ruled that the secretary’s decision was within his power and that it bore “a reasonable relationship” to constitutional requirements.[6]

 While earlier federal court decisions have rejected challenges to decisions made by the Commerce Secretary because he used the discretion granted to him by the Constitution and delegated by Congress, this year’s challenges may be different. In addition to the constitutional challenges presented by the citizenship question, the lawsuits also argue violations of process and procedure. They also question whether the Commerce Department failed to follow federal rules and procedures by rushing to include a citizenship question at the last possible moment, against the recommendations of the Census Bureau’s professional staff and without adequate public comment and review.

Timing on the current litigation is tight. The 2020 census forms will be printed during late spring or early summer of 2019. Even if Judge Furman and the other judges render decisions by November or December 2018, each appeal would have to be presented to, heard and decided by the federal appellate court. Appellate decisions could then be challenged before the U.S. Supreme Court, which might be pressed to make a decision before adjourning its term in June 2019.

Much is at stake in these two New York cases and the other pending census lawsuits around the country. Census data have significant impacts on fair representation, federal funding allocations and other matters.  Stay tuned for developments in these lawsuits in the months ahead.


[1] California V. RossNew York et al v. Department of CommerceKravitz v. Department of CommerceCity of San Jose v. RossLa Union Del Pubelo  Entero v CommerceNY Immigration Coalition et al v. Ross

[2] NAACP v. Bureau of the Census

[3] Alabama v. Department of Commerce

[4] Ross memo to Karen Dunn Kelley, Under Secretary of Commerce for Economic Affairs

[5] 652 F.2d 617 (6th Cir. 1981

[6] 517 U.S. 1 (1996)

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NY Federal Judge Lets Challenge to Census Citizenship Query Go Forward

From an AP story in the NY Times: “(a) federal judge ruled Tuesday that a legal challenge to the 2020 census can go forward, saying there was an appearance of “bad faith” behind the Trump Administration’s disputed decision to add a question about citizenship.

U.S. District Judge Jesse Furman made the ruling at a hearing in federal court in Manhattan after citing contradictory statements by Commerce Secretary Wilbur Ross about the rationale for a plan to send a census form to every household that asks people to specify whether they are U.S. citizens.”

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Sugarman Says BOE’s Proposed Rules Would Hobble Investigations

In the Times Union, Brendan J. Lyons reports “The chief enforcement counsel for the state Board of Elections wrote a searing letter to the board accusing its partisan members of attempting to hobble her investigative authority with new rules that she said would diminish her ability to do the job.

The new rules, scheduled to be voted on by the board in the coming weeks, would allow the commissioners to tightly control the subpoena powers of Risa Sugarman, the independent enforcement counsel.”

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