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A Faulty Notion to Restrict Political Party Qualifications in New York


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(photo: Philip Kamrass/Office of Governor Andrew M. Cuomo)


In April, the New York State budget was passed and signed into law. Buried within it was the creation of a commission tasked to write a new law on three aspects of the state’s election code: public campaign finance, “fusion” voting, and political party qualifications. Oddly, though it’s called the Public Campaign Finance Commission, most of the hearing testimony and press coverage has focused on fusion voting and party qualifications. This may be so because the commission’s informal leader, Democratic State Chair Jay Jacobs, has not disguised his desire to eliminate the minor or “third” parties in the state.

Jacobs has suggested raising the “threshold” number of votes required by a political party to achieve and maintain automatic ballot status. This is what “party qualifications” means. It answers an important question that all states must face: How does a group of citizens who form a political party get that party listed on the ballot?

Right now in New York, a party must receive 50,000 votes in each gubernatorial election under its own banner, or on its “ballot line,” as New Yorkers call it. Right now, based on the 2018 election, there are six qualified minor parties in the state: the two most prominent are the Conservative Party and the Working Families Party.

The 50,000 vote threshold is approximately 1% of the gubernatorial vote. Jacobs has proposed quintupling the vote requirement to 250,000, or roughly 5%, and extending to both gubernatorial and presidential races.

Because New York, unlike most states, does not permit minor parties to qualify in any other manner (such as a petition), this would effectively put the minor parties out of existence. It would instantly make New York among the most restrictive states in the nation in terms of ballot access for citizens who are neither Democrat nor Republican. And it is in stark contrast to the trend in other populous states. In the last 20 years, five of the most populous states — California, Texas, Florida, Ohio and Pennsylvania -- have moved in precisely the opposite direction, reducing barriers to minor party qualification, not raising them. 

More states use a 1% threshold than any other percentage test. The second most popular requirement is 2%. If New York adopted either of those, it would at least be within the realm of the defensible. But any standard greater than 2% not only smells bad, it will likely be ruled unconstitutional in the federal courts. There are dozens of cases holding that overly onerous party qualification rules are unconstitutional. Surely the lawyers on the commission understand that if “equal protection” means anything, it is that “party qualification” rules designed to punish or eliminate minor parties (and the voters who support them) will not stand.

The New York Commission, binding recommendations from which are due by December 1, should also consider the legal problem presented by a 250,000 vote threshold. It will likely be ruled unconstitutional in the federal courts. There are dozens of cases holding that overly onerous party qualification rules are unconstitutional. Surely the lawyers on the commission understand that if “equal protection” means anything, it is that “party qualification” rules designed to punish or eliminate minor parties (and the voters who support them) will not stand.

If the State Legislature wishes to ban fusion voting, it should do so in the proper way: pass a constitutional amendment, and refer it to the voters for approval. In the meantime, this unelected commission should leave the minor parties alone, and not touch the 50,000 vote threshold. The Legislature can consider it in the regular order of business.

The minor parties may annoy the major parties, but democracy is not about limiting ballot access only to those with whom you agree. The commission should resist joining the company of Alabama, Virginia, or the other states that have essentially made it impossible for “third parties” to qualify. Democracy belongs to everyone, not merely the two major parties.

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Richard Winger publishes the Ballot Access News newsletter and website. On Twitter @ballot_access.

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Local City Council Members Must Head Back to Drawing Board on East River Park Plan


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(photo: @ERPAction)


An Open Letter

Dear City Council Members Carlina Rivera, Margaret Chin, and Keith Powers:

You have indicated that on Thursday you will vote for the flood control plan that will demolish East River Park and rebuild it 8-10 feet higher over five years. This is a $1.45 billion, five-year project that will destroy more than a mile of coastline park that is vital to our neighborhood, the un-wealthy end of the Lower East Side and East Village. I urge you to change your vote to “no” on Nov. 14. Here’s why: 

Once this plan passes the City Council, you will lose all bargaining power. The city will not be obliged to reply to the many unanswered questions or do any of the things it has promised to look into, such as these points: 

Interim Flood Protection
The city promises to study temporary flood protection while constructing permanent solutions. If you vote to accept this East Side Coastal Resiliency plan, the city will not be obliged to offer a single sandbag through years of hurricane seasons (the city says three years—but we’ll talk about timelines later).  

Phased Construction
During phased construction (keeping sections of the park open during construction), the entire mile-plus promenade along the river will be closed for at least two years. That is so that the eight-foot flood wall can be built. If pile driving is going on the entire length of the park, the promised 42 percent of the areas still open will be unbearably noisy. In addition, there will be no access to the river at any point along the water for those years (and likely much longer—again, see timelines). As the barrier rises, we will be imprisoned behind a metal wall. Do you find that current phasing scenario acceptable? Your neighborhoods will be horrified when they figure it out. 

That is leaving aside whether it’s acceptable at all because phased construction will still destroy the whole park—just over a longer period of time than closing the whole park at once would have. We are proposing an environmentally and socially conscious alternative. 

Health Risks
The dust from digging up contaminated soil and adding layer after layer of landfill will clog our lungs. Our Lower East Side/East Village neighborhood already suffers high rates of asthma and 9/11-related respiratory troubles. The 1,000 trees that help us breathe will be gone. We need picnic areas, ball fields, greenery, and river access for our mental and physical health.

Alternate Park Spaces—Mitigation
Have you gotten the greenway you have been requesting to substitute for the loss of the biking/running/strolling path along the river? No, you’ve gotten a promise to study the possibility of a protected bike lane. Have you gotten the free ferries from Corlears Hook to Governors Island you’ve been requesting? No, that’s not even mentioned in the agreement you reached with the city as announced on Tuesday. Are you satisfied with a few playgrounds repainted or covered with artificial turf? Are you satisfied with the progress of greening of the streets and creating of play spaces and BBQ areas to substitute for the loss of mature trees and all the heavily used picnic, lounging, and natural areas we have now in East River Park? You should know that the thousands of saplings promised for our streets and the new park will not come close to the size of the 1,000 lost trees.

Timelines
Do you trust the five-year timeline the city has provided? The city has no answers to how long it takes for the eight feet of fill to settle. They do not know how long digging up and wrapping ConEd lines will take or how to deal with the contaminated soil that will be dug up. This is acceptable to you? 

Even if the city could tell us how long the above complications will take, you know the city is not good with deadlines. Surely you see that in the tiny Luther Gulick Park on the Lower East Side a bathroom has been under construction for four years. You know it took 10 years to rebuild the promenade in East River Park. Do you think voters will mind not seeing the river for another 10 years? 

Construction
The city says the park will stay completely open until fall 2020. In the summer work will be done in the park, however. What work? Where? How noisy and dirty will it be? 

Community Advisory Board
What authority will the newly announced community advisory board have about any of the issues raised above? What authority will you as the local elected officials have? 

Your constituents have been working hard to convince you to vote “no” on the ESCR. At a Nov. 4 rally on the steps of City Hall, representatives of grassroots community groups delivered more than 8,000 petition signatures to the mayor. Two thousand of those signatures came from NYCHA residents, who eagerly signed. The team who gathered those names did so to show that NYCHA residents do not support the plan, despite what NYCHA Tenant Association leaders say. 

We announced a letter signed by 50 community and conservation groups from around the city. We’ve been testifying and demonstrating our hearts out for a year. You say you listen and respond to the community, but you have not heeded our thousands of voices.

We insist on a plan that will provide flood control with minimal destruction of existing parkland and biodiversity. 

We want interim flood protection. 

We don’t want to contribute to climate change in order to cope with climate change. 

We want our low- and middle-income neighborhood to be treated with the respect that wealthy neighborhoods receive. You know this kind of destructive, ugly plan would not be acceptable in a rich neighborhood. Witness how fast the city dropped the plans to put a six-lane highway where the Brooklyn Promenade is. 

We do not want East River Park destroyed. You can do better. Our neighborhood deserves better. Vote no! 

Sincerely,
Pat Arnow for East River Park ACTION. On Twitter @ERPAction.

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Surveillance and the City: Past Time for the POST Act


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(photo: William Alatriste & John McCarten/City Council)


What’s a majority of  51? It should be simple math, but in the world of City Council politics, the numbers don’t always add up. Take the Public Oversight of Surveillance (POST) Act, an NYPD reform bill that has been pending before the Council for over two-and-a-half years.

Twenty-nine of the 51 Council members and the Public Advocate support it. No, they don’t just support it, they’ve gone further and fully co-sponsored the long overdue NYPD spying reforms. But the bill still isn’t law.

That’s because none of those 29 members have voted for the POST Act -- they haven’t been given the chance. Despite the clear majority support and long delay, we’re still waiting on Speaker Corey Johnson and Public Safety Committee Chair Donovan Richards to hold a hearing on the bill. If we can’t get a hearing, we can’t get a vote. And if we can’t get a vote, it doesn’t matter how many New Yorkers and Council members are crying out for reform. 

The POST Act is modest, but vital. At a time when the NYPD is buying invasive and discriminatory tools to track and spy on communities of color, the POST Act simply demands transparency. Tell the public what you bought and what the privacy safeguards are, and undergo an annual audit. That’s it, that’s all this simple bill requires, and, mind-bogglingly, it’s still not law.

The truth is that out of a Council of 51 members, there are only two that matter in getting you to a vote: the committee chair and the speaker. There isn’t a mysterious force that magically chooses which bills move forward, though of course there is vocal opposition from the NYPD and police unions. There isn’t some anonymous assembly of bureaucrats that decides: it’s two people. Which is why after years of campaigning for passage of the POST Act we’re turning to Speaker Johnson and Chair Richards. We’re speaking to them directly and demanding a hearing and full Council vote before the end of the year.

Maybe the police unions will be upset. Maybe Fox News will push back. The maybes are endless. This is what we do know for sure: it is time to act. As New York City drags its feet on digital civil rights, cities across the country are stepping up to go further. Cities have passed versions of the POST Act that are far more aggressive than what we demand. Do they demand information? Yes. Do they have audits? Yes, but then they also require lawmakers to approve each and every spy tool their police forces buy. Some cities like San Francisco have gone farther still and started banning popular forms of surveillance like facial recognition.

San Francisco lawmakers acted because of the risk that this Orwellian technology might be used on their streets, but facial recognition has already been used to digitally profile tens of thousands of New Yorkers, and our own lawmakers have done almost nothing. How is it that our neighbors are being arrested and convicted on the basis of this racist and unproven technology, 998 just last year, and our response is to do nothing?

Recently, Speaker Johnson was asked if he would commit to passing the POST in 2019. Even though he co-sponsored the bill in 2017 and said he supports the “aims and the goals of POST Act,” he refused to give a timeframe. This is why a coalition of 70 civil rights and community-based organizations recently spoke up, sending a letter to Speaker Johnson. We made it clear that delay is not an option and that evasion will not be tolerated. No, we will keep fighting and we will keep pushing until we get our long-delayed hearing and vote.

Let’s be clear, the POST Act isn’t the end of the fight for surveillance reform, but it’s an indispensable first step. For years, the NYPD has thwarted the tools used to hold police accountable for discriminatory surveillance. They fight discovery, freedom of information law requests, and every other mechanism that could provide us insights on our communities are being surveilled. 

In a low point last year, the de Blasio administration fought in the state’s highest court to create a new legal doctrine. Taking a page out of the CIA’s Cold War playbook, the NYPD now will no longer confirm nor deny if they have records about certain types of surveillance. This means that even where these tools are used to racially and religiously profile New Yorkers, we simply can’t get the data to show it.

With every other form of governmental transparency cut off, we need the POST Act. We need it to understand what systems are on our streets, but also how the data is being used. We need to know what safeguards are in place for innocent bystanders, and how we prevent information from being shared with federal agencies like ICE. In short, we need rules of the road, and we need them now.

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Albert Fox Cahn is the executive director of The Surveillance Technology Oversight Project at the Urban Justice Center, a New York-based civil rights and privacy organization. He writes the monthly "Surveillance and the City" column for Gotham Gazette. On Twitter @FoxCahn

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