New York Must Defend Its Count of Double Votes

     MANHATTAN (CN) – Smaller political parties can sue over a New York state law that they say is robbing them of votes because it lets candidates appear on the ballot for multiple parties, a federal judge ruled.

     Last September, the Conservative Party of New York State and the Working Families Party sued the commissioners of the New York State Board of Elections over its practice of counting votes when a ballot is marked multiple times.
     “Fusion voting” lets candidates run on multiple platforms, but if a voter chooses a candidate on a two platforms, only the “first” party gets the vote.
     “In other words, if a 2006 voter voted for (Elliot) Spitzer on both the Democratic and Independence lines, the Democrats were credited with the vote, and if the voter voted for John Faso on both the Republican and Conservative lines, the Republicans were credited with the vote,” according to the original complaint. “The Board simply ignores the fact that the voter has expressed her intent to support a minor party.” Since a political party needs 50,000 votes to qualify for a subsequent gubernatorial election, the lost votes can have a significant effect, the plaintiffs claim.
     About a month after the filing of the lawsuit, U.S. District Judge Jed Rakoff denied the plaintiffs a preliminary injunction affecting the midterm elections, believing they “had slept on their rights by waiting until a mere six weeks” before November. Shortly after the midterm elections, the New York State Board of Elections moved to dismiss the complaint, and another third party – the New York Taxpayers Party – joined the original complaint.
     Rakoff gave third parties the green light on May 10.
     “The Second Amended Complaint thus adequately alleges severe burdens that the Statute and Regulation impose on minor parties independent bodies, and voters themselves,” he wrote.
     Rakoff found that the issue has become thornier since the New York State Board of Elections completely replaced older pull-lever machines with new electronic-voting machines. Critics of the new system have long argued that the machines’ confusing interface causes double voting, which was impossible to do on pull-lever machines.
     “Although it is true that the exact rate of double voting in the 2010 New York State General election is not yet known, the palpable difference between the old voting machines that prevented such double-votes and the new machines that allow double-votes render the allegations of injury entirely plausible,” Rakoff wrote.
     He added the state’s current election law may violate the plaintiffs’ constitutional rights.
     “[P]laintiffs had adequately alleged that the Statute and Regulation severely burdened their First and Fourteenth Amendment rights and the State had not yet established, at a minimum, that the State had chosen the least restrictive alternative to achieve its purported justification for the Statute and Regulation,” Rakoff wrote. “Accordingly, the Court, for the foregoing reasons, denied defendants’ renewed motion to dismiss.”

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