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Changing the Board of Elections

by Gail Robinson, Nov 02, 2010
Photo by Board of Elections
The Board of Elections launched a public education campaign on the new voting system. Critics say New Yorkers got the message, but the board didn't.

Little doubt exists that George Gonzalez was the wrong man in the wrong job at the wrong time. Somewhat unpolished, Gonzalez, who had worked at the Board of Elections for 22 years before the board named him executive director this summer, often appeared awkward and even combative as the board sought to explain a series of mishaps with its new voting system on primary day.

And then just one week ago, Gonzalez lost his job.

Since the Sept. 14 primary -- which was mired by delayed poll openings and equipment malfunctions -- good government groups and the Bloomberg administration have called for increased transparency and accountability at the board. Some advocates have urged the City Council to exert more oversight. State Assemblymember Michael Benjaminof the Bronx has gone further, preparing legislation that would place the administrative functions of the now independent board under mayoral control.

Before his ouster on Oct. 26, Gonzalez repeatedly pledged that New Yorkers would have a good experience when they went to the polls on Nov. 2. Even if events prove him right, it will be too late to save Gonzalez.

What happens to voters today, though, could play a key role in determining whether major changes will finally come to an agency politicians have delighted in pummeling for years, but have never really worked to change.

Post-Primary Depression

Contrary to many predictions, most New Yorkers were not fazed when they confronted paper ballots and optical scanners on primary day. Some credit this to the board's outreach efforts, which included ads, a video and training sessions throughout the city.

The board, though, had problems. Polls opened late, poll workers could not get access to equipment, and scanners jammed. As they sought to help voters, many poll workers seemed to forget the principal of the secret ballot, carrying the marked papers in plain view around the poll site and feeding ballots into scanners face up.

"It wasn't the public that turned out to be confused. ... It was some of the poll workers," City Councilmember Peter Vallonesaid at a council hearing last month.

A report by state comptroller Thomas DiNapoli found some poll sites opened up to two and a half hours after the scheduled time. The report also cited privacy problems, equipment malfunctions at some 700 sites and improper training of 43 percent of poll workers.

"The city's transition into the 21st century was fraught with serious mistakes," Council Speaker Christine Quinn said at the hearing. "Many things went seriously wrong."

Gonzalez and others board officials repeatedly said the problems were relatively minor given the enormity of the changes. Some 90 percent of election rules and procedures had to be rewritten, one board official said, adding: "Because of the short time between the purchase of the machines and the primary, we were scheduling classes when we didn’t even know what we were going to be teaching."

To Mayor Michael Bloomberg, the problems seemed to reinforce his low opinion of an agency he has clashed with repeatedly. On primary day, he blasted the board for its performance, calling the late openings and other woes "a complete screw up " and "totally unacceptable."

Meanwhile the board, under increased scrutiny from public officials and the media, began to seem increasingly like a gang that couldn’t shoot straight. The city -- along with four other counties in the state -- missed the Oct. 1 deadline for mailing ballots to military personnel and others Americans overseas, prompting a federal Justice Department suit. Now those people will have until Nov. 24 -- three weeks after the election -- to return their ballots.

Earlier this month, the Brennan Center obtained a sample ballot -- the board does not routinely post or otherwise provide samples – and noticed the instructions tell voters to fill in the bubble above or next to the name of their preferred candidates. What they should do -- and what the lines on the ballot appear to indicate -- is fill in the bubble below the chosen candidate's name.

In an emergency meeting, Gonzalez and the board lawyer, Steven Richman, explained the wording had been approved by the state legislature this summer. That wording accurately reflects the design of the ballot in many counties, but the board in New York City put the bubbles below the candidate's name. Until the Brennan Center took a look, no one noticed the discrepancy between New York State's instructions and New York City's ballot.

The controversy that may have had –- and continue to have -– the greatest impact on the board would have affected only a small percentage of the city’s voters: those in City Council District 28 in Queens. There the board, reportedly under Gonzalez's direction, arrangedthe names of the seven candidates so that one, Ruben Wills, appeared to be running as a Republican -- something that would hardly boost his changes in the overwhelmingly Democratic and largely black and Asian area. The ballot has been reprinted, and the city Department of Investigation has launched a probe, possibly into whether Gonzalez arranged the ballot to benefit one of Wills' rivals.

Checkered Past

The city Board of Elections has long been the target of criticism from good government groups and some politicians. In 2004, problems with voters registration and high turnout forced many voters to have to cast paper ballots -- instead of pulling the lever. At the same time, people trying to call the board with questions or complaints could not get through. Its web site went down too. In the 2008 presidential primary, the board reported -- mistakenly -- that Barack Obama got zero votes in some election districts.

And then there was the selection of the new voting machines. New York, the last state in the country to comply with federal regulations requiring new machines with a paper trail, punted the decision to its counties. Earlier this year the city finally selected its machines, choosing equipment made by Elections Systems & Software. A day after that decision, federal prosecutors indicted company lobbyist Anthony Mangone for allegedly bribing a Yonkers City Council member. This apparently helped prompt a federal investigation into the contract -- a probe that as of earlier this fall was still ongoing, according to the Washington Post.

The city's last minute choice of the machines gave it little time to prepare for this election and no opportunity to test the new technology before converting to it completely, which other counties in the state had done. Further complicating the transition, the board's previous executive director left abruptly in February, and the board did not appoint Gonzalez to replace him until August.

Price of Independence

The Board of Elections is a creature of the state, a relic of efforts in the late 19th century to hem in the influence of the Democratic Tammany machine. Independent of mayoral control, it is intended to be rigidly bipartisan with an equal number of commissioners from both major parties (minor party members need not apply).

Whatever its original intent, many critics say the structure, particularly at a time when voting administration has become increasingly technical -- hobbles the board's effectiveness.

Likening the board to the Metropolitan Transportation Authority, Neal Rosenstein of New York Public Interest Research Group, said: "The board is set up in a way to shield accountability from the people who have power" -- in this case, he said, the party leaders, who appoint the commissions.

The power of the party leaders extends deeply into the board -- with jobs down to, say, truck drivers and file clerks evenly divided between Democrats and Republicans, resulting in two people for a single job in some cases.

While conceding "every structure has its flaws," Lawrence Norden, senior counsel for the Brennan Center's Democracy Program, said, "There are clearly problems with a system where there are members that are appointed by the major political parties to look out for their interests."

Beyond Gonzalez

Whatever they might have thought of Gonzalez -- and some confessed to feeling some sympathy for him, seeing him as a "fall guy" for more deeply entrenched problems -- few observers think his firing will end what many see as the dysfunction at the city Board of Elections.

The situation, said Rosenstein, "reflects on the sorry state of the parties and the party leaders who appoint the board."

While still retaining that board, Assemblymember Benjamin would limit their authority. Under his proposal -- which is not yet in the form of a complete bill -- the mayor would assume control of board operations, such as hiring poll workers, fixing voting machines and the like. The mayor also would appoint the executive director and the board's administrative staff.

The board would see its responsibilities sharply reduced to ruling on maters involving election law, such as reviewing challenges to signatures on nominating petitions.

This, Benjamin said, "would take the politics out of the Board of Elections. ... There would be professional personnel, not owing allegiance to either party.

Benjamin, who once served as a deputy chief clerk at the board, said he had reviewed the State Constitution and believes his proposal falls within the boundaries of what it allows. Even more sweeping changes -- eliminating the board entirely, say -- would require a change in the constitution.

Benjamin, who is leaving office at the end of the year, acknowledged his idea would probably not pass in this session. But he hopes someone will pick up on it when he goes. He also plans to discuss his proposal with the mayor's office.

Purse Strings

Other advocates say the mayor and the City Council could do more with the power they already have -- like in the budget.

While simply cutting funding would hurt voters, the council and mayor could keep a tight leash on the board's discretionary spending -- the money it used to buy new chairs for its employees, for example -- to compel the board to shape up.

The board and some other observers counter, though, that the board needs more money, not less.

Testifying before a State Senate hearing, Commissioner Juan Carlos Polanco said the board got almost $10 million less from the city than it had requested. "There is no cheap way to run an election," he said. Board counsel Richman said the board needs 102 more employees to do its job.

Some elected officials agreed. State Sen. Bill Perkins (whose wife works at the board) called the funding for the board "shameful," while State Sen. Daniel Squadron said, "There's no question we don’t sufficiently fund our election operations."

But Quinn dismissed such complaints. "I do not accept underfunding as an answer to what went wrong" on primary day, she said at the council hearing. "It's simply a way to skirt responsibility."

Quinn said -- and Gonzalez did not dispute -- that the Office of Management and Budget has always given the board money to meets its needs throughout the year, even if it did ot approve the entire allocation at the beginning of the fiscal year.

Transparency

If there's any doubt the board remains independent of the mayor one only has to look at its web site. In an administration that loves data, the board offers little of it. Despite requests, the board still has not prepared an accounting of its performance on primary day -- a listing of how many poll sites opened late and by how much, of the number of poll workers who did not show up at their appointed site, or any documentation of equipment woes.

It also does not supply information for inclusion in the annual Mayor's Management Report, which examines performance of city agencies and whether they met various benchmarks.

Public Advocate Bill de Blasio believes providing that kind of information would constitute a vital first step on the road to change. "Any reforms we undertake have to start with greater transparency at the Board of Elections itself," he said in a written statement. Including board information in the report, he continued, "will help set benchmarks and measure progress -- it's amazing the BOE has managed to evade this simple oversight for so long." De Blasio added, "There is clearly a case to be made for more drastic reform in the years ahead, but transparency is where we need to start right now."

The Bloomberg administration has been trying to persuade the board to do this. Officials say it has not had much -- if any -- success. Gonzalez told council it would "not be appropriate" for an indpendent agency to give information to the mayor.

The mayor's bashing of the board has done nothing to make the board likely to cooperate. "The problem in that relationship comes from both sides," Rosenstein said. While the board has an "insular culture," he said, "frequently it seems the mayor is more interested in criticizing the board and having a foil than working with it."

Rosenstein said, the council could use its power over appointments to exact this kind of change. The council has to approve nominees for the board, although no one can recall a case of one being rejected.

This should not surprise anyone. "The council members are all part of the same party structure as the party chair who appoint the commissioners, "Rosenstein said.

The opacity of the board is not limited to the management report.

The board holds its regular meetings in a room at 42 Broadway. A lectern blocks the view of the board. "It's difficult to hear," said Marjorie Shea of the Womens' City Club, and there's no stenographic record.

In addition, the board does not videotape its meetings. "Too much goes on behind closed doors, said Norden.

And much of its basic information is not available -- such as the sample ballots. A simple change, such as posting PDFs of sample ballots, said Alex Camarda, advocacy director for Citizens Union (whose sister organization publishes Gotham Gazette), would have addressed some of the problems in voting this year. If citizens had a chance to review the ballot before stepping into the privacy booth, they might not be so confused by the instructions or hampered by the small type on the ballot.

The board, according to Shea, has said a sample ballot could lead to voter fraud.

At the council hearing, Councilmember Gale Brewer repeatedly pressed the board on whether it would post various information -- data on its own performance, for example -- on the web. The board was, at best, noncommittal.

But Shea said, "It’s half empty and half full with this board." Things, she said, have improved: Some information is on the internet and "they recognize members of the public and let us have a say."

The Person at the Top

The hiring of the executive director highlighted the secretive nature of the board. After executive director Marcus Cedarqvist resigned, the board never posted the job or held any kind of public search. It largely refused comment on the process of selecting a new chief. Reports of possible deals leaked out as Gonzalez plugged away in his efforts to get the post.

The search was "not transparent, not broad," said Norden. "It gave the appearance of being more about backroom dealing and horse-trading among political parties."

If the board opens up the search this time around, Norden continued, it would provide "an opportunity for the board to prove people wrong." If it doesn't, he said, "the calls for revamping the city board will only grow stronger."

Quinn and Brewerm who chairs the council's Government Operations Committee, have called for a national search to replace Gonzalez. The board, however, has not responded.

Once a new executive director is hired, Rosenstein said, he or she should undergo an annual performance review .

In the Trenches

Most voters never meet a member of the Board of Elections. They do though have frequent content with poll workers on the front line of the election process. Many poll workers did not show up on primary day, although no exact count of that exists. Some of those that did appear had been poorly trained, and some had flunked the test at the end of training -- but were on site anyway.

According to Gonzalez's testimony, the board hired about 32,000 poll workers. Of those, more than 3,000 appointed by political parties, Richman testified, did not take the normally required training. Another 700 or 800, he said, took the training, failed it -- but worked anyway.

"We had election workers who were not trained properly, who did not know what they were doing," Vallone said at the hearing.

Camarda said the board must make greater efforts to broaden and expand its recruitment, reaching out to students for example. Citizens Union, Camarda said, would like to see legislation mandating a wider search or at least requiring the board to report on its efforts to recruit polls workers. "We think that would spur them to go beyond using patronage to fill the jobs," he said.

In addition, he said, poll workers should have to pass a test and, to make poll operations go more smoothly, the poll site coordinator could be required to contact poll site workers before Election Day.

"Such, things, Camarda said "seem almost too small to write into legislation," but if the agency resists such reform, "you write it into law."

To boost the numbers of competently trained people at the polls, Rosenstein would like to see the city give another day off to any civil servant who agrees to work at a polling place.

Now, with the problem of the last six weeks or so fresh in the minds of officials and the voters who election them, change -- at least of the "small bore" variety -- might appear inevitable. But then again, it might not be.

"For the most part elections go off relatively smoothly," Camarda said, "And there is also a sense that, these problems, if they do surface ... fade away."

Last Updated (Aug 14, 2014)