Election board’s partisan make-up is grounded in state constitution

Board of Elections officials begin to organize ballots ahead of the recount in the Democratic primary for Queens district attorney.  Eagle  photo by David Brand.

Board of Elections officials begin to organize ballots ahead of the recount in the Democratic primary for Queens district attorney. Eagle photo by David Brand.

By David Brand

More than a month after polls closed in the Democratic primary for Queens district attorney, the result of the full manual recount will be certified Monday afternoon during a special meeting at the Board of Elections office in Manhattan. Melinda Katz leads Tiffany Cabán by 60 votes, with court challenges looming.

Results aside, the too-close-to-call Election Night returns and lengthy manual recount served an important function for educating New Yorkers — especially reporters — about the nuances of state election law. 

The race specifically shed light on the quirky composition of the BOE in New York City, and in counties across the state.

The New York City BOE has 10 commissioners — one Democrat and one Republican appointed by the political parties in each of the five counties. It’s the only city agency where county political parties appoint administrators. In Queens, the Democratic commissioner is Jose Araujo, an attorney with deep ties to the Queens County Democratic Party. The Republican commissioner is Michael Michel

The partisan appointments may seem like a throwback to New York City’s history of institutionalized patronage, but the two-party composition was actually a reform measure to prevent political influence in city elections, government and election experts say. More than a century later, some good government groups say it leads to inefficiencies. 

Every county in the state has a Democratic and Republican commissioner under a provision codified in Article II, Section 8 of the New York State constitution in 1894. The constitution mandates that each county’s BOE feature a commissioner appointed by the county parties of the two highest polling parties in the state.

“All laws creating, regulating or affecting boards or officers charged with the duty of qualifying voters, or of distributing ballots to voters, or of receiving, recording or counting votes at elections, shall secure equal representation of the two political parties,” the New York Constitution states. “Existing laws on this subject shall continue until the legislature shall otherwise provide.”

But it’s not as easy as the state legislature voting for the change and governor signing into law.

Amending the state Constitution is a yearslong, multi-step endeavor, which requires two consecutive legislatures to vote in favor of the change. The amendment is then included as a referendum on the statewide ballot and requires the approval of voters.

“It’s a bigger type of change than people really understand,” said Citizens Union Executive Director Betsy Gotbaum.

Election experts and attorneys say the vote recount in the Queens DA primary was conducted in a transparent manner and was not influenced by partisan interests — despite social media allegations of fraud and abuse ahead of the manual tally. 

Nevertheless, the composition of the board fosters inefficiencies, Gotbaum said, adding that the BOE “should be run by professionals.” 

The Board of Elections did not provide a response to the Eagle.

The New York City Board of Elections has ten commissioners — one Republican and one Democrat from each of the city’s five counties. Each commissioner is appointed by the county’s political party.

The New York City Board of Elections has ten commissioners — one Republican and one Democrat from each of the city’s five counties. Each commissioner is appointed by the county’s political party.

Common Cause New York Executive Director Susan Lerner said the law is “a vestige of the approach of the late 19th Century” where reformers believed an even split between two political parties was the only way to ensure fair elections.

“Of course, we’ve evolved from that understanding to a much more nuanced understanding regarding nonpartisan election administration,” Lerner said. “But New York election law remains mired in the 19th century.”

“The original intent was to prevent fraud, but as it played out, it has become a huge inefficiency,” she added.

Lerner said the BOE should be run by career civil servants, not “amateurs chosen because they are active in their parties.”

The makeup leads to inefficiencies and a lack of accountability, she said. 

“How well is the partisan system working for the voters when we have disaster after disaster in the election system?” she said.

In addition to recent debacles like voters being purged from the rolls and voting machines breaking on Election Day, she pointed to a 2010 lawsuit that the federal government brought against the New York State Board of Elections

The complaint alleged that the state agency violated federal law by failing to send overseas and military ballots to voters in a timely fashion. New York hired two sets of attorneys to respond to the suit — one to represent the Democratic commissioners and one to represent the Republicans, she said. 

That duplication of services was a “huge waste of taxpayer money,” Lerner said.

“In an ideal world, there should be a nonpartisan election administration,” she said. “They should be civil service positions and the state should recruit on a national basis for people who actually know how to run an election.”

Election attorney Sarah Steiner questioned efforts to adjust the BOE, however. She said the “Board of Elections has its issues,” but it is unclear how changing the make-up of the administration would affect necessary reforms like voter access.

The Queens DA recount was a “herculean effort” and the majority of staff are career professionals, she added.

“This is not a change that’s going to come easily or soon, and I’m not even sure it should come,” Steiner said. “People who think it would make a difference are just going to wind up with a different set of problems.”