Author Archives: jeffwice

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

http://rockinst.org/blog/battle-lines-drawn-over-the-census-citizenship-question/

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.

 NOTES

[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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Reform Party Hosting Candidate-less Congressional Primaries

From City and State:

“The Reform Party is pulling off a political stunt on Tuesday spanning four boroughs, 230 polling sites, and 5,000 workers. The only question is whether voters will play along.”

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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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