The violation stems from the NYS Board of Elections’ recent decision to switch to new voting machines that could disenfranchise New Yorkers in the gubernatorial race this year.
Section 5 of the Voting Rights Act requires designated jurisdictions to submit proposed changes to their voting systems to the DOJ for “preclearance,” or approval. The recent change affects Manhattan, Brooklyn and the Bronx — designated Section 5 jurisdictions.
The policy change involves how New York handles “overvoted” ballots. Under the new voting system — which will be used throughout the state for the first time in the September primaries — voters will fill out ballots that will be read by an optical scanner. If the machine determines a voter has selected too many candidates for a particular vote, it will not count the vote in that contest. These “overvotes” can occur because the voter misreads the ballot and selects more candidates than they are entitled to vote for, or because the machine misinterprets a voter’s mark as an extra choice.
The change is likely to have a disproportionate affect on minority voters. Florida instituted this rule change before the 2008 election, and minority voters, in particular, experienced substantially higher rates of loss due to overvoted ballots. Although minority voters will experience the worst impact, all voters in New York will be affected.
“New York should learn from Florida’s problems in 2008. The new voting machines can be modified to avoid the potential problems of lost votes,” said Lawrence Norden, Brennan Center senior counsel.” And there is a chance to fix the problem before New York’s primary.”
New York’s lever machines prevented overvotes in the past by making it impossible to cast an overvoted ballot. Under the new procedure, when a voter overvotes, New York’s voting machines will retain the ballot, rather than immediately reject it; will not notify voters of the consequences of casting an overvoted ballot; and will display a confusing message.
There is no explanation of what “over voted” means, nor is there an explanation of the consequences of casting an overvoted ballot. The screen message asks the voter whether they would like the ballot be “accepted” (indicated by a green button with a check mark) or “[not] cast” and “returned” (indicated by a red button with an “x”).
Two states, Wisconsin and Florida, have addressed this issue by revising their screens, so four advocacy groups have asked New York to take a look and do the same thing. So, for example, the notification that comes up on the screen says "You've overvoted" and a green button comes up that says "Override this” and a red button comes up that says "Take your ballot back to correct the error." So it does sort of skew it into pushing the override rather than the red button that is in the form of a stop sign that says "Take your ballot back."
Florida has revised its screen by reversing the message. In big letters: "Warning, your vote will not count in this contest. Please correct the error." And then the green button is to correct the error and the red button is to override and accept the ballot.
Any changes, unfortunately, does require work on the part of the NY Election staff, and if changes are approved, the vendors will have to modify the software and submit it for recertification. The Optical Scan vendor, ES&S, already did this in Florida, so if it was done properly and re-certified in Florida, then it shouldn't have to go through a whole rigmarole in doing it in New York. We don't know yet what the other approved Optical Scan system by Dominion response to this change will be.
The Brennan Center addressed the letter to T. Christian Herren, Jr., Acting Chief of Voting Section in the Civil Rights Division of the Department of Justice.
Michael H. Drucker
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