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Saturday, October 2, 2010
Vote Stealing in New York
The core constitutional right of freedom of association -- part and parcel of the First Amendment -- is at risk in New York.
In New York, candidates are allowed to run under more than one ballot line. This allows voters to make one choice for a candidate, and then a second choice in choosing which party the voter wishes to cast the ballot under. (In essence, it allows a voter to make two statements, although in all cases there is never more than one vote.)
Under the new optical voting scanners for use in New York elections starting this year, voters may inadvertently cast multiple votes for a candidate running on more than one ballot line -- for example, voting for Carl Paladino on both the Republican and Conservative lines (or the Taxpayers Party line which he also will appear under). The New York State Board of Elections has determined that in such an event, the voter's one vote to be counted would be the vote under the major ballot line (e.g., Democratic or Republican). This clearly discriminates against the minor parties and would act to deliberately ignore the choice of some voters to cast a vote for a candidate under a minor party ballot line. The Conservative and Working Families Parties are challenging this system in federal court. (Double hat tip to the Daily News' Frank Lombardi for his two reports on the controversy, and the Daily News' Celeste Katz for picking them up in her politics blog.)
The lawsuit hints at the specific federal constitutional deficiency of the derogation of the First Amendment freedom of association (that is, political association and hence a related concept to the even greater core freedom of freedom of speech) in paragraph 40. I will expand on this issue due to its importance. Enrollment in a political party is a political act of speech and expression, and anything unfairly and unconstitutionally infringing upon the ability of a minor party to continue existing has a resulting adverse effect on the speech and political expression rights of the members of that minor party. Third parties, so-called minor parties, and their enrolled members have rights just like the major parties and their members do, and the challenged system threatens those rights (and is a Fourteenth Amendment equal protection clause violation, as the lawsuit alleges).
The lawsuit does point out that the vote redirection from minor parties and towards major parties does threaten the existence of the minor parties because their legal recognition under the New York Election Law depends on their gubernatorial candidate receiving a minimum of 50,000 votes statewide, and their ranking (i.e., which row the party has in elections for the subsequent four years) depends on the number of votes its gubernatorial candidate is credited with. If major parties are allowed to siphon off ("redirecting" or "stealing") votes, a party which would have been Row C may end up being Row F. The practical effects of the current system are to place at risk the minor parties' existence, ranking among other parties, and defeat the purpose of the "fusion" system under which candidates may accept multiple party endorsements.
A cynic will suggest that the "powers that be" would like to do away with "fusion" voting and cross-endorsements so as to concentrate political power in only the Democratic and Republican Parties and diminish the influence of any minor party. Some commentators have previously suggested that some of the minor parties exist for little more than patronage, which they receive only by exerting influence over -- or extorting favors from -- major political party candidates or organization leaders. Also note that the State Board of Elections is controlled by the major parties, as the lawsuit points out (see paragraph 38).
Although the name plaintiffs here are the Conservative and Working Families Parties, all other parties which cross-endorsed candidates should be equally concerned. It is interesting -- and makes one wonder -- why the Independence Party (which endorsed Andrew Cuomo) and the nascent Taxpayers Party (an independent ballot line for Carl Paladino, and not an official political party) did not join the lawsuit. (Perhaps they were not asked to join, or they did ask to join and were rebuffed.)
Eric Dixon is a New York small business lawyer who also advises candidates and political organizations on various election law and corporate law issues. Mr. Dixon also consults on constitutional law and civil rights issues including privacy rights, technology and regulation issues. He can be reached at 917-696-2442 and via e-mail at edixon@NYBusinessCounsel.com.